The legaltech is here to stay. It imposes itself in the forefront of the law stage. It provokes, and fuels the debate upon the law practice by questioning both the relationship that practitioners have with the law as their raw material but also the relationship they have with their clients. The legaltech seems to have appeared in the dynamic pages of the results provided by search engines, following request launched on the key words “right” or “litigation”. The legaltech hidden just a click away behind either some hypertext links or some apps activated at the touch of a finger, seems to launch a special challenge to lawyers including the star members of the Bar.
Some lawyers start organizing resistance against this new legal practice of droids. “Ready to struggle against these new prophets announcing, loudly, that the software is “eating up” the world (Marc Andreessen, Why Software is eating the world, the Wall Street Journal, 20 Août 2011)”; they aim to prevent the advent of the legal practice of droids. This legal practice by droids developed and delivered by the legaltech tries to nibble market shares in the legal industry.
Legaltech: a legal revolution?
However, despite Lawrence Lessig’s famous “Code is law”, it seems that reducing the arrival of the legaltech to a technological phenomenon and thus trying to oppose it to a legal practice anchored in reality, is clearly a mistake. Persisting in this mistake could lead its promoters to a fatal deadlock. Indeed, let’s be direct in drawing the landscape: the technological revolution in the legal professions will not happen for a simple reason: it already has!!
The concentrate of technology and performance of legaltechs does not cause a upheaval in legal practice. Professor Goodenough of the University of Vermont’s Faculty of Law, after recalling the three stages of the technological revolution, even mentions the fact that we would be in the process of approaching the last stage, where computational systems would lead to a redefinition of the legal system, or even would replace it by a self-generated justice system.
Although recognizing that it could be seen as science fiction, Professor Goodenough looks back to the booming revolution of the smartphone and concludes by inviting lawyers to anticipate this evolution to review their role: “We can help a system intended to create justice do just that, “he says (Oliver R. Goodenough, Legal Technology 3.0, the Huffington Post, 6 avril 2015). In a nutshell, the technological revolution would have already taken place. This revolution would be behind the lawyers whom it would now behove to rethink their role and their profession in this new legaltech landscape.
Professor Roland Vogl of the very serious Stanford University also wonders about the concrete market penetration of legaltechs among legal practitioners. Suspecting that the practice of the law has as many lawyers using sophisticated technologies as lawyers practicing their profession in the same way as fifty years ago, he deplores the lack of information on the phenomenon of legaltechs: what are they? What typology of problems do they seek to address and which technology do they use?
So many questions that motivated The Stanford Law School and its students to launch a database named CodeX LegalTech Index . It aims to list legaltechs and their fields of innovation. As Professor Vogl emphasizes, it should enable lawyers to better understand this new legal ecosystem, based on innovation, so that they may be able to seize the opportunities that will arise along the way. He concludes: « In fact, those lawyers who recognize the pending changes as an opportunity will likely do very well in this new environment » (The Coming of Age of Legal Technology, Roland Vogl, Stanford Law School, 26 septembre 2016).
Admittedly, it will be easy to find fault with this approach: Europe and France are not California. It will also be argued that they only contribute to the vast movement of “Siliconization” of the law, which leads the way to a kind of disembodied legal practice through technology, a law uninhabited by the lawyer, a law that is no longer “the Law ” but a mere technological or cybernetic representation of the rule of law.
There is some truth in this. However the facts are here for all to see. And so are legaltechs !! Whether we like it or not, they are now part of the legal landscape, of its economy and they impose themselves in its practice. More than a revolution, the Legaltech is the sign of a renewed relationship within the legal practice. This relationship is part of an economy that is reorganized around the digital information, and has evolved by forcing lawyers, as do legaltechs, to go beyond their cases, their codes and laws.
As Professor Vogl points out, these legaltechs are not, in themselves, a threat to dynamic lawyers who know how to compromise, innovate and work on the redefinition of their role in the field of this new legal landscape more digital, in its approach and practice. “magnifique!” some will say. “so what? What’s next? Next…?” others will say! Next, means understanding which ecosystem legal practitioners and legal consumers, users, litigants, are now evolving in and what adapted answers legaltechs bring them.
Legaltech: the development
Indeed, if the advent of the digital legaltech does not bring as much of a revolution to the legal market as the Gutemberg revolution did to the world, the legaltech is now part of the legal market which has deeply changed under the spur of technology. The mistake would be to consider the legaltech as a competitor or an opposing party, while the legaltech belongs to another sphere than competition.
Indeed, the legaltech is the sign of a change: both organizations and individuals as consumers of legal services have modified their relation with the law and the legal practice in an economy where the availability of knowledge is facilitated. It tends to a certain popularization of legal science. This popularization is the result of a combination between a deflationary economic cycle and an economy that is reorganizing around platforms, like other sectors of industry.
The deflationary cycle, as a result of a choice imposed by economic actors made it possible to lower costs and prices in IT equipment, telecommunications and machinery. This choice contributed to the development of innovation and to the acceleration of technological capabilities at a discount price. Both of them led to a high rate of equipment of individuals and organizations in technology. As an illustration, it took eighty years for half of the French population to have a car, seventy years to get the phone, fifty years to have electricity … but in barely twenty years, the majority of the French was connected to the Internet.
The gate opened up very quickly onto the web and its world of mind-boggling possibilities and its facilities were also quickly adopted. In order to have a concrete idea of the phenomenon, it is for example sufficient to consider that the computing power contained in an iPhone is ten times greater than that on Apollo 11, during its mission to the moon: ten times more computing power that you can hold in your hand at a price that has nothing to do with that of a space shuttle, and opening up to a space that goes farther away than the moon, to plenty of social galaxies of applications and services….
Likewise, it was estimated in 2010, that a zettabyte of data was added thanks to the Internet. It’s impressive considering a zettabyte represents more than a thousand billion terabits, a million times more than all the words uttered by all human beings since the dawn of time (L’âge de la multitude, Colin, Verdier, Armand Colin, 2015, 112).
Therefore we feel it better than we really understand it but it is a quantum leap: everyone has access to everything and almost immediately! Everyone can have access to a kind of totality accessible in real time! Everyone is free to have access to it as an individual and as a member of a community, to a body of knowledge. This body of knowledge is more or less diffused or organized, more or less collected and compiled in a sort of exhaustiveness, an immemorial totality accessible at the click of a mouse. Legal science and The Law are now just as accessible as other sciences.
Legaltech.. the ambition of a new Enlightenment?
These changes seem to be part of the dream cherished by the famous encyclopaedists of whose enterprise Voltaire said: “The past century put ours in a position to gather in one body and transmit to posterity the bulk of all the sciences and all the arts, all pushed as far as human industry could go; and this is what a society of scientists, full of spirit and enlightenment, has worked for. This immense and immortal work seems to bear testimony of the brevity of human life “(Le Siècle de Louis XIV, Voltaire, Folio Galimard, free translation of the author).
Dedication to Enlightenment, to universality where all human knowledge is rendered available, accessible at one click. But this vocation seems in fact to belong to a business project. This business project is steered by Californian entrepreneurs whose distinctive mark relates more to the market share than to a philosophical approach. Its purpose seems then to contradict the ideals of a society based on an apparent right to share free of charge any knowledge as described below. What is happening here is a clear shift in value! In fact value does not lie anymore in the legal knowledge itself popularized by its digitalized universality. It lies in its technical potential to share and distribute information in a kind of dynamic flow operated by the platform, which is implemented magnificently by the legaltech.
Legaltech: legal platform?
Indeed, the legaltech phenomenon can only be understood if one sees clearly that the legal market is reorganized around the platform. The platform could be defined as an architecture of complex computer systems corresponding to “a set of organized and documented resources (data, algorithms, methods) made accessible […] by interfaces” which open “onto a structured and documented proposal of value” (L’âge de la multitude, Colin, Verdier, Armand Colin, 2015, 152). These interfaces allow third parties to connect directly and to develop their own applications also available from the platform, or to interconnect with other systems to allow network exchanges. Clearly, a kind of ecosystem is emerging.
The purist will not be satisfied with this definition. But technical detail isn’t the question. The question is to explain the current process happening: by increasing the resources connected to each other and to other third-party resources the platform multiplies connections and concentrates the value effect. By coordinating around a constant flow of systems, the information and data that are exchanged, the platform forces the other operators to stick and to adhere to its operating mode. What doesn’t come through the networks platform will progressively lose its capacity to exchange, lose some dynamism, and some relevance to finally end up in a digital pit. Pierre Bellanger declares in this regard: “on the internet […] abstraction shapes reality: if your business is not listed in the price comparison or in search engine results, it goes bankrupt and disappears. The self-fulfilling map creates the territory. “(Digital sovereignty, Pierre Bellanger, Stock 2014, p.87).
The legaltech and its operating platform implement, for the legal professionals, this structuring of reality. It pushes its way between supply and demand, between the legal practitioner and the subject of law or litigant. The platform and the legaltech thus acting as an attractive intermediary define a new relationship to the law according to criteria of relevance, access and treatment of legal matters. If one fails to see it that way, it boils down to wandering in an uninhabited world. What platforms and legaltech propose brings about a shift of the center of gravity of legal service value. Indeed, the legal content of the exhaustive databases of these engines is continuously fed, by many contributors whose exponential power of diffusion of legal information has exploded with the possibilities of sharing on social networks which are all the more powerful as they are connected to other platforms (see Droit : ce que les réseaux sociaux changent ! La Loi des Parties, March 22, 2016). The combination of these technologies and the attitudes imposed by individual users mark the first steps of the legal market into an economy of mutual contribution.
Legaltech: changes in the market…changes in the value!
This economy is based on sharing and disseminating legal information and knowledge. It is implemented by platforms. But individuals also take their part in the move. They participate actively in this movement by questioning, answering, diffusing. All of these actions place legal information and knowledge in a new dynamic of particular value: both of them are in fact augmented or enriched by the compounded contribution of users. These users choose other recipients and bring in their “personal factor”, an opinion, a comment, an alert or even an illustration. These new actions increase the relevance and allow other contributors to leap to something new that in their turn they disseminate… It all happens as if the inception of a peer-to-peer market were being sketched out, that is to say a market elaborated around a system of horizontal relations, governed solely by the interactions between individuals equal or equivalent in their knowledge of legal matters, without any resort to an authority. Worth mentioning at this stage, that authority is one of the criteria in the process of recognition of expertise, whose value seems to suffer from the diluting effect of questioning for the future of legal professionals.
A further feature of this sharing and contributing economy affecting the legal market is that the dynamic value of information and knowledge shared by organizations and individuals does not seem to be remunerated. More precisely, it seems that there is a counterpart. But this counterpart seems to belong to a different register than those related to exchange and donation. It has something to do with the appraisal of social status, influence and notoriety on the platform or in the networks: it would seem to lie in a feeling of social usefulness, influence, of getting some notoriety, a sense of participation in a higher calling (after all, everyone is supposed to know the law, and its diffusion could almost be of public utility!) etc. etc. Thus, the displacement of value of the legal market, crystallized on its potential for diffusion and enrichment is confirmed and appears as a sustainable trend.
Legaltech… and what about the legal practice now?
Let’s be clear. All of these changes brought by the legaltech and its platforms are not neutral in the way the law is perceived and received in society, with an impact on how the law is applied. Indeed, they contribute to a double movement. The first one corresponds to a weakening of the authority of the Law and its professionals whose knowledge and reasoning can be questioned on the networks by those new well-informed, (or deluded?) “peers”. By doing so, these new “peers” change the relationship with the legal expert. They change it into a dynamic exchange process around the legal question they contribute to solve. The layman comes now to his lawyer but doesn’t want to receive anymore the piece of advice of the legal scholar who possesses legal knowledge and represents its authority. He now wants to be part of it ! He now wants to jointly seek the solution to or the confirmation of his legal issue that he sometimes himself raised by using the platform.
The second movement I referred to consists in a tremendous acceleration of the business world and its exchanges. Time seems to be accelerating and so does access to legal knowledge, to decisions that involve legal analysis or reasoning. But when the process of the law is too long, due to never-ending procedures, this length of legal time is part of a kind of eternity that relativizes its value in an accelerated society. What is this law worth if the litigant cannot have justice done to him as quickly as the harm, in a simple click? What credibility would lawyers have if they were to transfer cases to a legaltech justice? A strong one if it is, of course, in the interest of his client or of the organization he advises, provided (as lawyers say) he delivers on his promise!
Legaltech: back to fundamentals?
Yes, the emergence of the legaltech in the legal market questions lawyers on their fundamentals. It shakes their certainties. It outlines legal value and that of the role of lawyers, not only towards their clients, but more generally in society. The lawyer therefore has no choice but to step into this new system of values which is organized around a practice of a law produced and distributed by legaltechs, which obviously contributes to the development of a better legal culture in society. The lawyer has to adapt and involve himself in it because the change is inevitable. Therefore, the lawyer who was simply the “mouthpiece of the law”, as described by French philosopher Montesquieu, is a lawyer of another time, a lawyer of a bygone time. If he still exists, he is likely to be transformed into a bots or into platform fodder. Because the law practice now deserves something different. Yes, let the lawyer live the legaltech as a liberation from time-consuming repetitive tasks, in which he puts his skills alone and let him return to Knowledge, that is to say, this social capacity to transcend the Law and to interact to produce change. … Such a lawyer will not be able to accuse the legaltech nor will he plead extenuating circumstances, as the lawyer is already now called today to a new era, to be more, and much more than the law he practices.