495 Episode 495 Legal implications of AI

Welcome to Breaking Banks, the number one global fintech radio show and podcast. I’m Brett King. And I’m Jason Henricks.

Every week since 2013, we explore the personalities, startups, innovators, and industry players driving disruption in financial services. From incumbents to unicorns and from cutting edge technology to the people using it to help create a more innovative, inclusive, and healthy financial future. I’m J.P. Nichols, and this is Breaking Banks.

This week on Breaking Banks, we actually return to the world of the futurists where, you know, there’s been a lot of debate about artificial intelligence lately. We’ve had congressional hearings looking at potential regulation of artificial intelligence. So we had the opportunity at the Futurist to have Kane Elliott, who is the head legal futurist and senior vice president at Filevine, and also an advisor to OpenAI, the company that works on ChachiBT and other generative AI platforms such as that.

Now this is a really interesting interview conducted by Rob Tersek and Brian Solis at the Futurist Network. But it gets into some of the legal issues around the use of artificial intelligence and how, you know, what the implications of that are in terms of not only regulation, but just in terms of the role inside corporations in respect to how AI should be managed internally as well. He, you know, in terms of this sort of future of legal constructs in AI, this is an area where we expect AI to have significant impact from the emergence of smart contracts through to even automation of many of the functions that we have in the legal office, you know, both for practices of law and also on a corporate side as well.

So enjoy this special episode of the Futurist looking at the legal implications of artificial intelligence with Cain Elliott and the team at The Futurists. Hi, and welcome back to The Futurists. I’m Rob Tersek.

And this week in the co-host chair is my friend Brian Solis. Brian, hi, great to see you again. How you been? Hey, Robert.

It’s been a while, but it is so good to be back. Thank you. Thrilled to see you.

Our friend Brett is on the road, as he seems to be half the time. Always going to cool new places and finding cool new people. So that’s a good thing.

And you survived this tremendous winter we’ve had in California with rain after rain after rain after rain, these torrential rainstorms intact. I hope that your roof in your house is okay. You know, like everybody basically in Los Angeles and Southern California, I also learned that I have roof leaks.

So this is how the roofing profession works in California. Nobody calls them for seven years and then all of a sudden everybody calls and goes, I’ve got a roof leak in my roof. Yeah, it’s funny.

It’s a widespread problem. That was a tremendous experience. I remember rain, you know, those atmospheric rivers, that phrase seems kind of romantic, you know, when you hear it, like, ooh, atmospheric river, that sounds nice.

I’d like to have dinner at that place. And then when you watch my new album, and it’s like a vertical flood, you know, where water is pouring off both sides simultaneously, and you’re like, wow, that’s an astonishing experience to live through. Well, we are here to talk about the future, not the rainstorms.

And each week, what we love to do is introduce a guest who is actively working on the future. That’s one of the premises of this show. It’s not just talking about the future or speculating about the future.

It’s actually talking to people who are doing something today to change the future. And one of the things I was thinking about this weekend as we were getting ready for the show is that there are still some industries that haven’t changed. There are still some industries that are bound to the past, and the past kind of weighs them down like an anchor.

And that’s sometimes because of regulations and laws, and sometimes it’s because of traditions and process and so forth. But there are a few industries that are sort of resistant to change. I’ll give you an example.

I was talking to a doctor for a matter recently, and the doctor was like, well, why don’t you fax that stuff to me? Or he wanted to fax something to me. And I said, the doctor, I said, I don’t have there’s there aren’t fax machines where I live. And he said, where do you live? And I said, I live in the 21st century.

Because where and when do you live? Give me a break. We haven’t had a fax machine for 30 years now. But that industry runs on paper.

And of course, speaking of paper, no industry is more bound to the paper world than the legal profession. And if you’ve ever gone to court, you see that pathetic spectacle of these attorneys in their fancy suits going through metal detectors, and they all have their little wheelie carts with stacks and stacks of paper behind them. And they have to pick up those boxes and stick them through the stick them through the x-ray machine so that they can get into their courtroom.

And I keep thinking to myself, when is this industry going to get digitized? So let’s give a big welcome to our guest, Kane Elliott. Kane comes to us from Filevine, which is a company that’s trying to digitize the legal profession based in Utah. Hey, Kane, welcome to the show.

Welcome to The Futurists. Thank you, Robert and Brian. I’m really happy to be here and really excited to talk to you guys about legal futures, which is something that does, in fact, exist despite the appearances that the profession tries to give sometimes.

That’s great. So you folks are in the business of attacking that pile of paper that I referred to a second ago, that the poor attorneys have to haul around with them. We are.

And in fact, as I had mentioned, I think sometimes that kind of paper is hauled around just as much for psychological effect as it is for the actual effectuation of something in court. But yeah, when I when I think about the legal profession, I try to take a very long view. My background is as a doctorate in philosophy.

And so I try to look at the profession over the long term of the last few hundred years and really try to understand how things have moved in a way that it’s very incremental. I know in the introduction you brought up medicine. That’s the only industry that seems to change slower than legal adoption cycles and legal take about three to five years on average just to accept a new type of technology.

So it is slow moving, but there are some good reasons that it’s slow moving. And what are some of the reasons I was curious about that? Is that because they have to deal with the court and the court itself moves slowly? Or is there some other reason that the legal profession evolves so slowly? There are institutional mechanisms like courts, for sure, that play a role in part. But I think the other is, look, in the whole Anglo-American tradition, it’s a system that brings up attorneys, enculturates and educates them on the basis of precedent that what comes before is really important.

So if you imagine you’re in a profession that all the time is telling you everything that came before is really important and there for a reason. So that creates a cultural disposition in which standards are established. But the other thing is, you know, high precision and high stakes work means that people are very averse to the potential for a change that introduces the potential for error.

And it’s the stakes really that makes so many people averse to change. If you say, look, I learned the profession this way, I’m doing it to the best I can for my clients in this way. If I take the risk of changing or adopting some new technology or working in a different way, am I somehow putting them at risk and making a mistake? And I think those stakes, ratcheting up stakes like medicine, mean that people worry about risk taking in a very different way that a lot of us maybe in other professions think.

Risk taking and risk adjudication becomes a very different proposition. So you’re saying that someone achieves a level, a certain level of proficiency in the legal profession and maybe a level of fame or notoriety, I guess, depending on the kind of attorney. And they want to preserve that.

So they don’t want to mess around with their process too much because it’s taken them years to get to that point. So I would imagine for an attorney like that who has a thriving practice, who’s got a workflow that’s really well honed, that they understand very well, I would imagine for an attorney like that, that the prospect of digital disruption is really scary. It’s probably really traumatizing.

It’s scary. It’s also the fact, though, that I think the reason that legal is so interested right now in technology and has been for the last 10 years is because the scale of legal work has gotten so much larger. So the actual number of cases, the actual number of work that attorneys are taking on is much, much larger than it was historically.

And something has to give. Right. And so the answer is you can have a lot more attorneys, which we don’t have actually coming out, despite what people might think about law school attendance.

And if you don’t have a lot more attorneys, the only thing you can do is get more efficient to stay up to the workload. And so so that breaking point is what really inspires most people’s interest. Where is this? Where is this massive increase in legal work happening? Is it happening with individuals? Is it happening with legal matters like court cases or is it happening inside of corporations? Both all of the above.

So disputes are on the rise in every jurisdiction you can name. We were all very well-versed and known that we’re a very litigious society, at least here in North America. We do a really good job of that as our main recourse to resolve things.

But the other thing is, in fact, that the more complex societies become a thematic that you guys have talked a lot about on this show, but the more complex societies become, the more there are opportunities, potentials or necessities for trying to resolve disputes about those complexities. And so the law becomes more and more crucial. If I could just ask two things, one’s an observation.

Next part is a question. And the observation is also a society that’s becoming increasingly polarized as well, which creates opportunities for increased tension, of which we can we could philosophize about that over wine some night. But there’s something very interesting that you said that threw off all the light bulbs, which was based on precedent, it’s the stakes that prevent change, increases the worry about risk taking.

Nothing about what you just said is solely related to the legal industry. I work in innovation and that is what every executive or every leader or every industry says. It’s the stakes.

We’ve got this honed. Why rock the boat? And now we start to really think about the future as looking a lot like the past. And it’s even clear in our own words that we use.

Out of COVID, it was new normal and the future was next normal. But in all honesty, I think it’s always been creativity, technology, digital that’s pushed us forward. It’s the creative brain.

It’s the risk taker. It’s the confident person who knows what they’re good at and sees this opportunity and all of these things to be better, faster, greater than everyone else. What is it that you’ve seen with those that you work with or those that you observe that unlocks that creativity and that potential to say, hey, this is actually a good thing for me.

I think I can use it to be better or greater or faster, smarter? Well, if I if I could answer by telling you a little anecdote. So my my first day walking into a law firm and working into a law firm, which kind of happened out of happenstance, me deciding to leave the academy. But I started work there and one of the best partners I worked with, he sat me down in his office and he said, so, Dr. Kane, let’s have a little chat here.

I want you to understand we’re all here and attorneys because we’re not entrepreneurs. We don’t think about this like a business. That’s the unique part, I would say, about the legal space.

It’s different when you’re going into a place that says, yeah, we want to be part of the innovation economy. We want to change the world with what we’re producing. We’re doing legal isn’t saying that legal is saying we want to offer better and better services for clients.

And so what I would say about that giving point or that pressure, a lot of that’s coming from the client side. So clients have much higher expectations and demands of their attorneys and what they expect for service. I think, you know, Robert, you mentioned faxes.

My wife, her favorite joke is to walk by and me talking about digital faxing during one of my conversations with a client and said, what the I thought you said you were at a tech company and you’re talking about faxing. Right. But it’s true.

I mean, faxing is a big part of our industry still. But the point is, clients want to be met where they are. The attorney can’t say back to the client, well, I need you to appear for this deposition.

I’m going to fax it over to you. You have every right to say I can’t receive your fax. Where would I get that? Text it to me.

And the attorney has every right to come back to me and say, Dr. Cain, how do we text from a system with our clients that’s secure and make sure that works? So I think it’s client driven pressure. So it’s a bit different and it’s not entrepreneurial driven of how do we change and innovate our industry? That’s all internal motivation. OK, so when you talk about client driven innovation, I feel this urge.

I feel compelled to respond to you there. So, you know, the number one biggest concern from the client when it comes to legal services with an outside law firm is the pricing, the business model. And let me offer my own two cents because it’s my show and I’m going to do that.

So I’m going to hold forth here. The the business model is broken. I mean, the business model of charging a thousand dollars an hour, five hundred dollars an hour, whatever it is they charge by the hour.

I mean, here in California, they literally, you know, attorneys are going at a thousand dollars an hour, which is astounding. The only thing the client cares about on those long calls with, you know, the attorney has you on speakerphone and shouting in the phone at you. The only thing they care about, they’re looking at the watch, they’re looking at the clock and they’re going, oh, my gosh, another minute, another minute, 15 more minutes.

Oh, my God. How do we make the bleeding stop? So there’s pressure on the legal profession to change the way it delivers services and the way it charges for them. In other words, that’s like a business model change.

Can you talk a little bit about that? Yeah, one of the most interesting things happening and we’re here in Utah, which is right at the center of it. In California, the Bar Association has blocked that kind of innovation that we’re seeing here. But in Arizona and Utah, you’ll see it with the legal sandbox we have that allows for alternative legal services or legal services being operated by organizations that aren’t owned by attorneys.

You’re seeing a lot more experimentation again. Now, I will say that this kind of thing, to your point, Robert, and this may be important for you to know, these are cyclical. So this does happen every so often in law.

People talk about the billable hour and how do we change that as a broken model? There are firms that I know right now that are experimenting with subscription models, kind of have a lawyer on tap on a subscription model. There are other firms that work on flat fee basis or percentage fees in contingency firms. But the model in which law firms are not necessarily owned by lawyers or these alternative legal service providers are working will shake some of that up and will be very interesting.

But it’s going to depend on the regulatory environment that exists in different states and whether that’s going to be allowed. So like I said, here in Utah, we have that Colorado that’s opened up a bit with people being able to offer family law services. I give a great example that I think is interesting.

eBay had problems in California before because people were using it to adjudicate no fault divorces. Why were they doing that? Because eBay has a great algorithm that says, OK, one side puts in their assets, the other side puts in theirs. And you say, make this a fair tradeoff.

Right. eBay has a pretty good algorithm set up for how do you make a fair trade of two sets of resources. And eBay got in trouble for the idea that they were practicing law without a license where they know people were being innovative in the way you’re describing, Robert, of wanting something different where they said, we’re not really fighting.

We just want to make sure this is fair and we don’t want to spend a thousand dollars an hour. So I would say that people and consumers, like you’re saying, will drive that change. And that’s why I think even bar associations and states that are trying to block that right now, it won’t succeed long term because people want to see more experimentation with how those services are provided and if they can be provided at better rates.

Well, you make a really excellent point. And by the way, those are great stories. I want to unpack that a little bit.

But you make a really excellent point about families. Right. So family law is one area of the law that is notoriously painful for people.

And it’s quite common that the people who are in that situation, people who are going through a divorce, they often feel like the only winners in the matter are the attorneys, the law firms. You know, you’re kind of at their mercy in the sense that the first step that happens in a divorce is that you reveal your financial information to your attorney who then confers with his or her counterpart on the other side. And of course, those two are going to encounter each other in future situations.

They may be on the same side, they may be against each other, and they’re never going to see you again if they do their job right. So they have it seems as a consumer, it seems like they have very little incentive to watch out for their customer. I know, I know the attorneys all profess to be looking out for their clients.

So we’ll let we’ll let that one slide by here. But I think the fact of the matter is a consumer feels like they’re getting ripped off. And the worst part is that you have to reveal all your financial material to these attorneys up front in a family law case, which means you’re exposing yourself.

Really, it seems like the attorneys can calculate how much can we believe this family dry before we bring this matter to an end. And they might be able to wrap it up much sooner. But oh, no, the other party wants to file a motion.

We have to respond. It’s going to take six weeks to get a hearing. Oh, we have to go to a case settlement conference.

That’ll be another six months. And the thing just drags on and on and on and on. Endless amounts of fees.

Both parties feel like they’re aggrieved or they’re spending down whatever savings they might have as that process grinds slowly through the justice system. So you’re saying that the that the bar associations can act in a cartel like fashion to prevent people from innovating, to prevent customers from figuring out a way to actually settle these matters outside of the courtroom or outside of the legal process? I did not use the word cartel. You did.

That’s true. You did. But I threw that in there.

You’re right. I’m just making sure we get the quotations right. But no, that’s right.

I mean, they can have those kinds of protective mechanisms in place to say someone’s practicing law without a license. I will tell you that what I mostly see and where technology plays an important role in what’s going on with the future of law is, look, the more sophisticated we can get in terms of exactly what you’re describing, where we could take a set of those assets, for example, in this case, you’re describing in family law and find more creative ways to have dispute resolutions and faster ways where technology is aiding and assisting in that. That will lower the zero stakes or zero sum game kind of scenarios that appear so often in law that I think will help people with dispute resolution that doesn’t involve as much bleeding.

If you have a zero sum game, it makes sense to want to play it in the Clausewitz style of escalation to extremes. Right. You go go as hard as you can to make sure you win.

If you’re continually provided with more information, which is part of what we’re trying to do or the work that me and my team wake up every day to try to do more information that can provide resolutions that don’t involve that escalation to extremes. That’s hopefully our goal, that we can also help resolve disputes quicker, faster and at lower cost. Yeah, sounds sounds great.

Brian, what’s your what’s your take? I was just thinking about all of this business model, innovation, consumer, client driven innovation and cartel like protectionism. I just checked Wikipedia. Cartel isn’t there yet, but I just contacted a Wikipedia editor, see what they can do about that.

In the meantime, you know, something that I I’ve done in every regulated industry is being part of innovation is work with regulators. And I’ve I’ve uncovered in all of that work. Change is possible, but also there are a lot of lobbyists who like to work against you, and it is a very organized, very well funded machine, but that doesn’t mean that it’s in the best interests of humanity.

And I’d love to hear more about what is it that that entrepreneurial lawyer or that attorney or anyone who’s entrepreneurial, at least in spirit, maybe not in practice, how we can empower them to think differently about improving their laws, their regulation. And I’ll give you one quick example. And now we’re coming close to time on the first segment.

I, I, I think about automotive dealerships and I can I can think historically and then also as an analyst, I don’t think I’ve ever read research that says overwhelmingly consumers love walking into a dealership to either purchase a car or have their car serviced. Yet the dealership industry is one of the strongest lobbyist groups to protect the franchise law. And so when Tesla, for example, starts to say, I understand that we can create a new model where consumers can buy a car directly from us and service it directly from us.

Consumers say, that sounds great, it’s like going to the Apple store, but instead they were met with lawsuits and prevented in many states from actually opening direct to consumer models. And so I think about how each state is different and how consumers can’t necessarily fight against that system. So the system itself has to be challenged by some or some other organized cartel that is looking out for the best interests of consumers.

And then that’s when we start to see the model change. So, so, Dr. Elliott, I’d like to hear from you. How do we inspire people to believe that they can be part of the change in an industry that says that we’re here to be lawyers, not entrepreneurs? OK, I hope if you don’t mind, but Robert already invited this, if I can say something kind of controversial here.

The first thing, the first thing I would do is I want to give you guys a concrete example that’s about DeSantis in Florida and tort reform down there. And the first and the thing I want to say is I want I want everybody to know, do not talk to your politicians. Doesn’t matter.

They have no idea. Look at what’s going on in Florida. Here’s what you’ll see.

You’ll see this massive push for tort reform. Why is the push happening? Because the insurance industry is very interested in backing DeSantis. Who’s against it? Personal injury attorneys on the other side who think it will damage their income and their take.

The politicians on either side of that debate, what do they know about tort and tort reform? Nothing. I promise you no one has the faintest clue about what tort and tort reform is or what these disclosures mean or what the ramifications are. What does matter is talking to the legal professionals that you actually work with.

And so as an example, I would say that, you know, these alternative legal service providers that we named, the primary utilizers of those companies are actually law firms who have clients who come back to them and say, I just will not pay that. I expect this at a cheaper rate. They go out and outsource it to an ALSP.

So I think working directly with attorneys in the communities that people are in and that they end up interacting with, despite what you’ve said, Robert, I think the attorneys, at least that I know and I know thousands of them around the country and have sat on hundreds of hours with them, they listen very closely to what clients say and what clients think. What I can tell you is that regulatory reform that can be innovative, that you can push within the state for opening up these kinds of sandboxes can be helpful, but it’s usually the judiciary that’s driving that as better having better options for actual members of the public getting access to justice and access to justice work is very good at this work. But actually working for a particular political side doesn’t work because neither side really understands what they’re arguing about.

If if one side got a different donor, they change sides on it the next day. So, OK, so what I’m hearing you say, and I think it’s a very good point, I’m glad you bring it up, is attorneys by and large are professional. They take their oath seriously.

They are there to represent their clients’ interests. And and so I apologize to all the attorneys that I offended with my previously inflammatory comments. I’m backing off of that now.

They’re too tough to be offended. You’re good. You’re good.

That’s OK, because where I’m going next is going to get a little bit more interesting here. What you just described to me is a system where we’ve got law firms on both sides of the case, clients who are basically disempowered to make change. They have no leverage to force a change through except to complain about their bill, which we can assume a lot of them do.

So they get that pressure. But the attorneys themselves have to comply with the legal process. And that legal process is driven by the judiciary.

And of course, the laws that govern all of this are set by other attorneys who happen to be elected to office. By and large, most of our elected officials in the US happen to be attorneys. So we have attorneys piled on top of attorneys, on top of attorneys, on top of attorneys.

You’ve got judges in the judiciary, you’ve got lawyers inside of the legislature. You probably got attorneys who are lobbyists as well, who are drafting legislation and sticking it under the noses of those legislators. So you have lawyers on top of lawyers and many of them, a large percentage of them, are just not interested in making change that is going to streamline the process, reduce the cost, make it easier and faster for people to get justice.

And the reason I’m bringing this up is that in California, where I live right now in Southern California, if you were in a legal matter, and I sure hope you aren’t, you would find that it’s going to be three years until you get a trial date. And that means three years of paying bills, paying retainers, paying for motions and other kinds of service, stuff that doesn’t really get you any result as a consumer. You’re spending the kind of money that you would spend to buy a car on a pretty nebulous result.

And it can grind on forever. And anyone can bring a lawsuit for any matter. So, of course, you can be sued by anybody at any given time for a matter that doesn’t really make any economic sense or any kind of realistic sense.

So do you see any any way that this logjam of lawyers making rules for other lawyers, do you see any way that that’s ever going to get resolved or are we just going to be stuck with this forever? No, I think I think that’s moving already. I mean, these alternative legal service providers that we talked about right now, that’s a very small segment of the market, it’s maybe point eight percent or something. But you mentioned California.

You could go to a site, not our company, but one that’s providing those kind of services like Bliss Divorce, say, for example. Right. And try to take your no fault divorce through a process with them.

So as these different alternatives open up for consumers and consumers move the way that they move based on their pocketbooks or whatever they feel is in their rational interest to do, the legal profession will respond. It does. And it will have to.

This is something I talk about constantly with the attorneys I work with. The move toward efficiency in terms of reducing the number of billable hours is a constant pressure that’s on. But as there are other avenues that open up, that will continue to happen.

But I think I think people will march to alternatives as they open up and choose those services and legal will choose to respond or not. I happen to think it will in ways to establish more efficiency, but still give the level of, you know, precision, but with the kind of velocity that consumers expect. And that’s going to be the space where technology assisted lawyering is going to be most efficient for consumers to get more out of it, but to still get the the high level of expectation that they place on the delivery of their attorneys and to want that touch.

I want to hear more about that in the second half. But before we jump into the second half, go to our breakout. I want to ask a few questions.

What we typically do on the show when Brad is the co-host is we ask a few rapid fire questions right before the break. So, Cain, Elliot, it’s time for the rapid fire questions. Here we go.

You’re in the hot seat. First question is, tell me, since you’re a futurist, you’re a legal futurist, tell me, what was your first encounter with thinking about the future? Science fiction story, maybe a movie when you were a kid. What was it that lit your imagination about the future? For me, it happened to be my mother actually setting me loose in a Barnes and Noble.

And I found this volume of Friedrich Nietzsche. This is really, you can tell I’m a nerd, but quite, quite young as like a preteen and me saying I’d like to buy this. And it was about philosophers of the future, a little segment that I read.

And this kind of inspired the rest of the life trajectory from 13 onward. Which book did you get, The Will to Power or The Gay Science or which? The Gay Science, The Joyful Science. It was a passage in there.

Well, OK, great. So from one Nietzsche student to another, your next question is, tell me about a forecast or a prediction that you heard of that influenced you in your own career? I think that I was most influenced by the idea that the legal industry could never move away from Microsoft Word. I found this completely obsessive and motivating idea.

I don’t ever believe that someone says they have a lock on the future of much of anything, especially something like a word processor. And that prediction that legal would be driven through Microsoft for the rest of human history seemed to me so infuriating that it’s also driven a lot of my actions in my own job right now. Cool.

OK, we’re going to take a break and we are listening to Kane Elliott. This is The Futurists. We’ll be back in just a minute.

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I’m Rob Terzik, your host, and in the co-host chair this week, Brian Solis. Hello, everyone. This week, we’re getting to know Kane Elliott.

Kane is the head legal futurist for a company called Filevine that is seeking to bring innovation to the hidebound profession of law. So, so far, we’ve been talking about how frustrating it is. And I’ve been having a great time ventilating about my own personal frustration with the legal profession.

And I have to say, it is astounding when you go to the courtroom how much paper there is. Every courtroom I’ve ever been in, whether I’ve been a jury or going to get called for jury duty or a witness or even a party to an action, I couldn’t help notice that all of the walls, every inch of the courthouse is covered in paper. There are filing cabinets everywhere.

There’s even stacks of paper out in the hallway and so forth. So here is an industry that seems to run on paper. You’d think their biggest supporters would be the paper mills.

How long is that going to be the case? And at what point are we going to haul this 19th century business practice into the 21st century, Kane? Yeah, I think the paper piece of the law is something that’s generational, and it’s right now dying off very rapidly. And you’ll see it very quickly in the next few years. The answer on the paper question, I try to go a little bit longer trajectory when I think about that.

So I’ve given a presentation here, and you can imagine being out in the world of tech that when I open a presentation and it has a clay pot from Orinamo and Mesopotamia, that people aren’t immediately going, yay, this is exciting, that kind of thing. We’re doing a history lesson. But for me, this is how I think about this stuff.

And that’s a clay tablet, one of the earliest pieces of writing we have in the West, and it’s laws that are written down. And I think about the clay tablet, and I look at that, and I say, the clay tablet, in some ways, is more efficient than what we’ve done subsequently with what we had in paper. On the clay tablet, at least, you could scratch through it, write something else on it.

Honestly, it’s harder to do that in a PDF today than it would be to on a clay tablet. So I think what the main answer would be is the rest of us doing the technology, we haven’t done a good enough job of giving people the kinds of technological affordances and abilities to work with digitized paper that people really want. Look, the experience of memory is still stronger when you’re reading paper and text.

Attorneys spend a lot of time highlighting reading through text. And one of the reasons paper is more popular is it sticks in memory better. So my answer there would be the technologists and the futurists in this, we haven’t done a good enough job bringing that experience.

If we make that experience more tactile, more experiential, ways it sticks more in memory, ways it makes it easier to work with, we would win over paper. But the idea of just taking a physical file and a piece of paper and putting a replica of that on a machine is not as good. And that’s why we’re not winning that battle.

So my answer is, that’s not the law. That’s us on the technology side failing to have the right answer so far for that. So there’s a parallel here, which is books, right? So books have been around, printed books or mass-produced books been around for 500 years and don’t seem like they’re going any place anytime soon.

And that’s because as some people have observed, it’s an optimized technology. You know, the book is a compact form factor. It doesn’t change.

It doesn’t require a battery. You don’t have to plug it in and so forth. So it always works.

And for an attorney who’s going to a courthouse, the last thing they want is to have files on some sort of digital gizmo and then discover that the battery ran down or they need to plug it in. They can’t find a cord or something to do that, something like that. So I can sort of understand that why there’d be some aversion to that.

But I think at the same time, just continuing with the book example, one thing that has happened in the last 10 years is an absolute explosion of digital data. And so like the number of books that are published has been increasing. You know, the number of physical hardbound books that are published, that goes up each year, of course, but that goes up in kind of a linear fashion where there’s been an exponential growth in the number of digital documents.

Now, how that affects attorneys is in discovery. So in the old days, you know, if there’s a legal matter going on, there’s a dispute, you’re getting ready for a trial. You know, the attorneys have the right to demand that to see certain documents that the other party may or may not have.

And they have to produce those documents by law. Some people don’t play fair. They don’t produce the stuff they’re demanded to produce.

But a tactic that started to emerge about 10 years ago, maybe a little bit longer, was in a big corporate dispute, for instance, that the party that was asked to show documents would produce everything. And you would end up getting truckloads of documents, literally, you know, like truckloads of documents because they would produce everything. First, it was done on paper.

So here comes millions and millions of cases of paper. I’m exaggerating. But literally, you know, thousands, tens of thousands of documents.

And then, of course, it switched to digital delivery. So now you get digital documents by the gigabyte. And for first year graduates who are coming out of law school, this was a pretty dismal prospect because it meant that they spent years in college and then in law school preparing for a profession when, in fact, what they were actually doing on the job was reading through old emails from some corporation in some matter.

And most of it, 99.9 percent of it, had nothing to do with anything. It was like, you know, hiding the needle inside of this haystack of digital documents. Has that changed at all in the last 10 years or is that still the process? No, that’s changing.

I think the most famous scene of that we have visually is I think it’s the movie Blackwater that’s about Teflon and the famous scene of the truckloads of documents appearing in the attorney’s office and he’s down in the basement with stacks of all these papers and most of them have nothing to do with anything. It’s changing. It’s not totally gone away because, as you rightly noted, when we have a society that has so much documented because of how we work digitally, then you do have a lot more documentation available.

But most courts in most regions are mandating some kind of conference in advance where people provide some kind of limitations on what is produced in discovery. So that’s happening. But that’s also part of what’s driving the usage of digital technology because courts like the state of New York are very close to mandating some kind of technology-assisted discovery process because there’s no way, really, you could come back as a human being and say, yeah, in fact, I read through the 15,000 emails that were produced in the average employment dispute that arises.

Let’s all be honest with each other about the reality of what’s going on. We’re inundated with information, as you noted, in our society. So we better have better ways to triage through those.

That’s why most courts will now want to mandate some kind of limitation on discovery. And that as a tactic in and of itself is becoming less popular because of massive advantages that we have now on the tech side to triage through those much faster. So that lowers the strategic value of that kind of dump.

It seems to me that that’s an opportunity for artificial intelligence. You know, I’m hesitant to jump into the AI discussion because I don’t want to get sort of hijacked the whole show. Before you do, I want to make a quick observation because I’d love to hear your thoughts on this.

Coming back to your last point, Robert, about books. You know, I have a few, well, now several years of research and study in how younger millennial and certainly centennial brains are wired differently. And when I think about the future of everything, whether it’s legal or just work, the ability for that brain to think differently versus, say, how we might write things down as a form of memory, that their brain doesn’t work the same way.

And so at some point, as a technologist, as you think about UI, UX, we think about things like Apple augmented reality down the line. So we think about technology as it starts to evolve. I’d be curious to hear your point of view around how technologists could start thinking differently for the next generation of brain that’s coming up versus trying to adapt technology to our brains, for example.

And so the reason why the book triggered it is because I did an experiment with two of my books where I broke the linear process of chapter-oriented book reading down into essentially the table of contents is gone. It’s now sort of like your home screen on an app. Everything’s color coded.

You don’t have to read left or right. You can actually read and everything comes together by categories. And so it was written for that brain.

I had to relearn how to write for that brain. So curious then, as technologists think about the future design, at what point do we just sort of break free and design for that next generation? Can I tell you about the craziest idea I’ve had, which, by the way, no one’s taken me on yet for building out. But thankfully, I work at an organization that lets me work on these kinds of absolutely insane ideas.

But I have thought about the idea of when you talk about a matter in litigation, for example, so let’s say, you know, this DuPont case that I just mentioned with the Teflon, thinking about a design model in which you actually structure the documentation and the movement of events more like the sequence of a game sequence where you’re entering a start screen, right? And you’re kind of questing through and moving through as part of this discovery process. Because also this relates to really old ideas about, I mean, everybody’s read at some point about memory palaces and the idea of putting things in physical places and making that kind of transition digitally. So for me, one of the strangest, I think, for others in the industry idea I’ve had, though, is like the idea of what if we put that in an experiential place that’s more like a gaming place where, you know, you’re the attorney moving through those documents, but almost spatially in a place that’s been rendered so that it helps you keep track of the things you’re looking for, identify the things that matter, put them as stop points or checkpoints back like you’re going in a game.

I think that people, I think, Brian, it’s a really great question because I think all the time about how everything will move that direction. And in fact, we have two of our main designers who work on our contract side. Their background is in video game design and they make great contract designers.

So I take that very seriously that that experience will change and that we have to get really creative so that we meet users where they are and the professionals where they are and then the consumers of the law where they are. That’s a really good perspective. And Brian, I see you’ve written about this topic already.

That’s quite interesting. So, yeah, the idea there is games do involve objectives and they involve surmounting hurdles, both big and small. And so, you know, there’s a kind of like habit that we have and now three billion people on the planet are playing video games.

So this is not like some niche activity or pursuit that, you know, some teenage kid in his mom’s basement is playing or something. Three generations of people are now playing video games and they’re quite conditioned to it. So that way of navigating yourself through a dense information environment and overcoming obstacles, in some respects, it is a little bit like law.

I mean, in a way, maybe we’re idealizing it or fantasizing it a little bit. But that kind of creative thinking is where new ideas come from. So are you making any progress on that? Is that something that you think? The most interesting thing I had happen, actually, on that front was I went down and judged a kind of so I went down to BYU Law and they had a kind of shark tank for the law school where the students in the law school who are very entrepreneurial were pitching to myself and some other professionals in the industry of their ideas of a startup for the law.

And one of the best ones I saw actually was a consumer facing app that they had built that was like a gaming environment, but for renters to work with their landlords. Because, in fact, that can be a very confusing process, to your point. And what we talked about earlier, it could be one where someone doesn’t have the resource necessarily to pay for an attorney or they may think it’s not worth it even taking this up if I have to pay for an attorney because it’s more than it’s worth to get this thing fixed in my building.

So I think that companies like ours and especially younger entrepreneurs who are coming into our industry are going to be pursuing ideas like that in the near term to speak to the both the consumers and the professionals we work with. And just so I understand now, the decision to use an alternative means of settling a dispute, you might have both parties open to that idea, but depending on the jurisdiction that they’re in, that might not be available to them. In other words, it might not be permitted in that in a jurisdiction or did I get that wrong? Is it possible in every jurisdiction for people to choose alternative dispute resolution? People can choose alternative dispute resolution.

The difference that I’m talking about that’s not available in every jurisdiction is organizations being allowed to provide, let’s say, legal or quasi legal services without being run by attorneys or themselves being attorneys. OK, so this is the challenge that we’re running into now with, let’s say, like AI assisted legal representation. So, for instance, I know that there is a company that’s trying to find a way to automate the legal process in this way where if you’re in court on a small matter, you can actually use this app.

You have to wear an earpiece and it can hear. So it’s doing speech to text. It can hear and then understand what’s being discussed, what the judge is saying, what the other party is saying, and then it will generate text for you as the client that you can read and you could thereby represent yourself.

And as it turns out, there’s two challenges here. There’s two issues that they had to smelt. The first one is that that’s not permitted in a lot of courts.

Yeah, in some courts, you’re not allowed to wear an electronic earpiece that’s connected to the Internet as well. So they found there were only two jurisdictions where this was possible, but they are experimenting with that so people could represent themselves and have kind of like a robo attorney in their ear and a Bluetooth piece and headpiece kind of whispering instructions to them. Now, I can imagine that would be pretty confusing, candidly, to try to like hear what a robot is saying to you while you’re in a courtroom where it’s a little stressful for most people.

But that kind of process is technically feasible, but it might not be legally permissible. Is that a correct observation about this whole profession right now? Are there a lot of solutions that are technically feasible, but they’re not yet permissible? No, I mean, in that case, that was not permissible in the case that was made, and that was used mostly as a marking ploy. But I don’t think it would be technically feasible.

I mean, my team, we work very deep in AI every day. We’re not down the rabbit hole on that in the sense that, look, there’s some things that AI is very good for right now and other things that it’s absolute crap at. I wouldn’t want it in my ear representing me in court.

What if it’s wrong? Yeah. Or what if you misunderstand it? Or is the case right now, as everybody knows, a lot of these large language models that we work with and I work with on my team, they hallucinate things all the time. So the best example I can give is with the tort reform in Florida.

I was having a dialogue with an AI about that. And it was telling me, well, this was upheld by the Florida Supreme Court in 2024. And I had to remind it, 2024 had not yet happened.

And it said, oh, thank you for the refresher. I’ll be more careful with my timelines. I don’t want that in my ear when I’m in court right now.

So I’m not, look, AI will be ubiquitous and everywhere in the law. But it’s not taking over every part of the legal profession or replacing lawyering anytime soon. It’s augmenting and making it hopefully streamlined and a better process for the attorneys and for their clients.

But it ain’t that. I hear you, man. It’s true.

You know, everywhere I look, there is panic. People are in a white panic right now about the notion of an AI coming and taking their job. And largely, it’s driven by fear of Chad GPT and the new model, GPT-4.

The reality is that these systems are unreliable. They’re largely reliable. They’re mostly reliable, depending on the particular discipline we’re talking about.

They may be 85% reliable, but who wants their legal outcome to depend on something that’s only 85% reliable? You just can’t trust them. No, I mean, Robert, who would want to be on trial for their lives and say, well, it may have hallucinated the facts of the case, but let’s go for it. But no, I don’t think so.

And these systems are very compelling bullshit artists in the sense that they present the stuff in a very confident way. Someone said to me that Chad GPT is like a teenager. It thinks it knows everything.

And it says it with great confidence, when in fact, it doesn’t always know what it’s talking about. And that’s a good way to think about these systems today. So they can be helpful.

They can streamline things. You can certainly ask it questions, ask it to edit something or summarize something. And generally that’s going to be okay.

But when it comes to facts or even math, they’re not entirely reliable. And it is true. They make up cases.

They’ll make up precedents and quote them and cite them as if it’s real, but you have to double check. So what good is that? That’s not an assistant. That’s creating more work.

You think then that there will be automated justice? Is that even a possibility like robo judge, you know, where you go to a vending machine and you have a dispute and you punch, you sort of submit your digital documentation and justice is dispensed? I think you will have that with a lot of low level, low stakes matters that are right now just kind of pulling or cranking the chain on something where let’s say a lot of MVA disputes where someone hits someone else and it’s low stakes. Or as we talked about, no fault matters. I think there’s a place for that in certain areas.

I don’t think the dispensation of justice at levels where there’s high impact and high causes is something we’re going to see for a long time. And I think the reason that you won’t see it for a long time is most of what happens in law is based on relationships of trust that people have. And those are already really frail between humans and systems.

And introducing additional models that may not be considered trustworthy means it’s not something that people are going to move toward in the very near future. And so I think until you have something where you had more transparency as where an AI or a machine or system is getting the result they’re getting, people won’t want that as part of their notion of justice. You can’t have a black box of justice.

That’s really against the notion of what any of us wants in terms of how our courts operate. Right, right. That’s true.

It’s one of the main principles of our legal system is that the justices set forth their logic and it has to be something that’s clear and that everyone can see and understand the reasoning of. And if they don’t, it’s going to get appealed. And that’s not great for that judge to get that matter appealed.

Okay, but that brings me to a related topic, one that’s less trendy these days, but it’s really hot the last few years, which is blockchain and the notion of smart contracts, right? So here, the idea is kind of a libertarian fantasy that we can just live in a world where we pre-resolve all possible disputes and we both agree to a smart contract, a binding smart contract that will automate the decision-making process. And in practice, smart contracts aren’t contracts. They’re not legally binding.

They’re not that smart either. They’re kind of binary. They’re about as smart as a vending machine.

So tell me a little bit about where things stand right now in terms of blockchain and the automatic dispensing of adjudication. Yeah, I think that one reason that that has failed to take off or realize some of the ambitions that people had for that is a lot of the programming community or the technical community that was behind that when I would talk to them were very distanced from the actual practice of what happens in the making of the meat with the law and disputes and coming at it more from the idea of the technology should solve in advance for a dispute. And most of the time when disputes get really tenuous, there are arguments over nuances of language that you can’t code for in advance.

Human emotions and feelings about things change all the time. One of the reasons that the law is a really rich area to work in is because it’s so damn messy like people. People change their mind all the time.

They change what they think they meant at the time that they signed the contract, what their actual intent was. And so I think that the idea that you kind of resolve human affairs in advance is a libertarian techno fantasy kind of thing that, to me at least, doesn’t seem very liberatory at all. I actually find it quite terrifying.

I really like the idea that we’re open to the gray side of life and the messy side of disputing things. The technology can’t solve the problem of being human yet, thankfully for all of us. It’s true.

I mean, writing a smart contract is a very, very difficult thing to do. Now, I should point out there is a large and growing number of attorneys who are specializing in that because they see that as a potential growth area. And I think it’s also one of the things that’s surprising about Web3 communities is how many kinds of contracts we actually commit to in any given daily exchange with our co-workers.

They’re not legal contracts. But as human beings, we depend on each other. We depend on commitments that we make to each other.

We represent that we’re going to do stuff, that we’re going to be reliable in some fashion. And so those, in a way, are all transactions that occur inside of a workplace. So in a decentralized company or decentralized organization, I should say, what governs all that, what governs those relationships, is a smart contract.

So there’s a growing area, a growing need, I guess, in a growing area. And as a result, no surprise, a growing law practice. But this hasn’t yet broken out into the mainstream, though.

Do you think it might in the future at some point? Or do you think that this is always going to remain a fantasy? No, the main place I see that happening, though, is if you want to talk about the contracts that we’re all entering into all the time that no one reads through, no one knows what’s in there, signs off on every day. Look, there are the things called contracts of adhesion that everyone signs off on, right? When you agree to terms with Apple and Facebook and all the rest of them, there’s places potentially in there. But there’s also a lot of work to be done on automating this work with NDAs.

People sign NDAs left, right, center, every direction for all kinds of interactions now. And I think there’s certainly a place for that. The place that would be most interesting is there’s an organization that we’re friends with, not part of ours, but called Bond Terms, that’s working very hard on the idea of a kind of, you know, essentially community driven with thousands of lawyers involved in organizations agreed to.

This is what should be in an NDA. Let’s all agree that this is what an NDA is about. Let’s all use this NDA and go on with our lives.

That would be like a one click thing that you can just, you can append to an email and click go and you don’t have to read it even because it’s the same standard as and it wouldn’t have been nice. So I think if technologists work together with groups like that, that are buying in with the human trust, that’s where you’ll get real breakthroughs. But it’s got to be the combination of the two.

Yeah, that makes sense to me. I mean, it is true, certainly, that technologists often approach a field, particularly a long established field with a lot of history, tradition and practice and precedent, like law. They approach it from an entirely theoretical perspective.

And they say, gee, this whole thing seems cumbersome and it seems inefficient, kind of where I was coming from in the beginning of the show. So the technologist perspective is blow it up and let’s start over from scratch and we’ll have a new process. Sounds good in theory, but like many things in theory, it falls apart in practice.

It turns out to be more difficult than we actually expected. And certainly that has been the experience with blockchain anything, you know, whether it’s blockchain for supply chain or blockchain for transactions and so forth. Lots of unexpected outcomes, lots of unexpected hurdles and friction in that process.

And then as it turns out, the art of writing a smart contract, well, it’s not that much easier than the art of writing just a good old traditional paper contract between two parties. There’s a lot of nuance. There’s a lot of skill, a lot of craft involved in that.

Those are skills that are honed over decades, not something that you’ll even learn in law school necessarily. It’s a craft. It’s hard to see how that might get automated.

What do you see as the future then? So where do you see this heading in the future? Because it sounds to me like based on what you said, the number of legal matters is going up. Law seems to be pervading society all the more. People themselves, as we adopt new things and move into new kinds of arrangements like decentralized organizations and online communities and so on, we’re having more encounters with more people and that means more friction and that means more potential conflict.

So it sounds to me like the universe of legal matters is growing. I don’t know if it’s growing exponentially, but certainly increasing and people are hyperconnected. So it’s probably going to speed that up and grow it.

It’s going to increase over time. What’s the future of law in that situation? How do you see this playing out in the next 10 years? So the stuff that I’m most excited about or get up every day working on and thinking about that really excites me is what we can do in terms of better capture of action and a theory of action and legal action. The reason I say that is exactly what you pointed to, Robert, you kind of teed me up by accident there.

When you talked about the decades of apprenticeship and work, I think what’s going to happen is the most useful bits of this technology in legal tech, the world building that are going to take off, the things that are going to be transformative are the things that lower that time needed for apprenticeship and becoming more skillful in the practice. Those will be the things that will matter because those will allow different legal actors and younger legal actors to become better practitioners quicker. And I think that the way that’s going to happen is because all of our lives are so ingrained with so much technology, there are clicks everywhere, that the best thing we can do with the technology we have at our disposal is not just more access to information.

I love AI and I hype about it all the time, but I’m not hyped about it in the sense of I always tell users, listen, an extra deluge of information in front of you doesn’t mean it’s more useful information. So digital information as opposed to paper has been really exceptional for the law in one sense that you’ve got it all at your fingertips. It’s been terrifying in the other sense that you’ve got it all at your fingertips, right? It can be very confusing.

But what we do have access to that we’re not doing enough yet is process mining for people and really figuring out where the actions that you took on behalf of clients at certain times and certain points for certain reasons that had the best effect and the best action for them. And I think in the next 10 years, what you’re going to see is that the tech that’s really informative for the industry and transformative for what people are doing are not just going to be fast piles of data we threw against the wall to make it easier to triage through. That’ll be important, but it won’t change the practice.

What’ll change the practice is process mining that allows people to understand what are those points of making certain decisions that are making my lawyering so good. Those things that, you know, when everybody looks at their actions, they’ve got explicit things that they do all the time. Those are things that they can describe to others, teach to others, everything else.

But the law is full of so many implicit actions that attorneys take. The more we can help raise those to a surface level where they can see what that implicit reasoning was behind why they took a certain action at a certain time. That’s the stuff we’re going to put at people’s fingertips that’s going to transform the practice and I think make augmented lawyering something that’s real as opposed to robot lawyering that sounds like a fanciful idea.

But augmented lawyering where you have a better idea of why you clicked when you did. OK, that’s good because that fits with a trend we’re starting to see. It’s not about technology replacing people.

It’s about technology making those people, giving them superpowers, as you say, augmenting them, you know. So for instance, you know, everyone wants to know about robot doctors, right? To go back to the doctor, the medical example. As it turns out, one of the uses of AI in the medical profession is that doctors, you know, when they visit you, when you go in for a checkup or any kind of procedure or anything, they make notes, right? And usually typically you’ll see them use a little a little dictation machine where they can talk to themselves, digital notes.

Sometimes those machines can turn those notes into text for them. Automatically they use a speech text to do that. Now what doctors are doing is they’re making notes with chat GPT or something similar, a chat bot.

And it actually completes the form. It actually inputs the information into the patient file. You can envision something similar, I would imagine, for the legal profession.

And this is going to matter for law partnerships. Over time, there’s a set of expertise built up inside of a law partnership that is deep and incredibly valuable. But it exists only in the heads of the attorneys, of the partners.

And one by one, those partners are going to retire. They’re going to go away. Wouldn’t it be interesting for the law firm over time to have its own learning model? You know, it might not be a large learning model, might be a very precise model, but one where they can start to capture the best insights from those partners.

And as they capture that, that becomes an asset that would then be kind of like a virtual mentor or a reference that you could query inside of the law firm. And actually, I can envision that being a very powerful thing over time. What’s your take on that? Do you think that that’s a possibility? This is exactly what we’re building right now.

We have part of this in our tooling because what we’ve seen all the time is, as I said, I have a slide in one of my decks that shows a reference to a federal decision from chat and it’s the equivalent of a Wikipedia citation. And then I have a reference from our system that is from the particular legal professional in their law firm from their riff or greatest hit on this citation. And that is exactly right.

That’s what people want. People want their greatest hits. The way I’d compare it is like this.

You think about the explosion of digital music. Once everybody had the ability to download everything and could go on and we all had, you know, Lime and all the rest of the million things that affected all of our computers in the early 90s and 2000s. Having a particular track didn’t matter as much.

What do you care about now when you go on Spotify? You care about the curated playlist. So what we want to do with the technology is curate the playlist, press play on legal. I want the greatest hits that’s that IP of my law firm put to use as opposed to the generic tracks of everything in the world.

So yes, a thousand percent. And this is precisely what we’re trying to do. Very cool.

Well, Kane Elliott, thank you very kindly for being on The Futurist this week. It’s been a great pleasure getting acquainted. Tell me for the folks who are listening and want to learn more, where can they find you on the web? Check us out at Filevine.com. You can see everything that we do there.

You can occasionally check me out at Kane Elliott on Twitter or some other platform that’s listed somewhere. But thank you very much for having me on the show. Really appreciate it.

I love the work you guys do. And as a futurist, I appreciate that there are people who want to keep people thinking. Well, it’s great fun to have you on the show.

And that is the idea here. We’re trying to get people to think more athletically about the future and perspectives like yours help. So thanks for that.

I want to give a big shout out to the folks who make this show possible at Provoke Media. And that includes our producer, Lisbeth Severance, who’s been incredibly helpful for us in wrangling talent and making sure the show runs on time. And of course, our engineer, Kevin, who has been steadfast in cleaning up all the audio errors and making sure things sound good and are audible to people.

And the whole crew at Provoke. But mostly, I want to thank the people who listen to the show. We have a large, growing, and very loyal group who have been incredibly forthcoming with suggestions for speakers, questions, and topics.

That’s been really useful. If you’ve listened to the show and you enjoy it, please do give us a five-star rating. Take a second to do that on wherever you listen.

You know, Apple or on Spotify or any other platform. It turns out that helps other people find the show. So it really matters for discovery.

And that would be great because then more and more people can find out about The Futurists. And so thank you all very much for listening to the show. Thanks for your suggestions.

Kane, thanks for being on the show today. It was great fun to meet you. Brian Solis for joining us and for asking questions.

And folks, we will see you next week with another Futurist. I will see you in the future. That’s it for another week of the world’s number one fintech podcast and radio show, Breaking Banks.

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