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Bar News - November 16, 2016


Formulating a New Future

By:

NH Leads Discussion on Evolution of Legal Profession


Annual Meeting program panelents, from left: Paul Lippe formerly of OnRamp Systems, Rebecca Kourlis of the Institute for the Advancement of the American Legal System, Andrew Arruda of ROSS Intelligence, Jim Sandman of Legal Services Corporation, and panel mederator NH Supreme Court Justice Gary Hicks.

Former lawyer Paula Davis-Laack presented an engaging afternoon CLE session at the NHBA Annual Meeting on resilience for attorneys in an age of change. Look for more coverage of the tips and tricks she suggests in the next issue of Bar News.

NH Supreme Court Associate Justice Carol Ann Conboy, recipient of the 2016 NHBA Distinguished Service Award, poses with Franklin Pierce Law Center classmates Jack Crisp (at left) and Bill Franks (recently returned from his home in St. Croix, Virgin Islands.)

Jack Sanders (left) chats with NHBA CLE director Joanne Hinnendael and Judge Charles Temple.

NHBA Board member Daniel Will (left) of Devine Millimet poses for a photo with past NH Bar President Jim Tenn of Tenn and Tenn, who helped fill in for meeting organizer and Immediate Past President Mary Tenn, who was unable to attend the meeting.

NHBA members chat with exhibitors and sponsors during a break at the Annual Meeting in Portsmouth on Oct. 28.

US Bankruptcy Court Judge Michael Deasy receives the NHBA Judicial Professionalism Award from Attorney General Joe Foster.

McLane Middleton attorney David DePuy receives the NHBA’s Donald Dufresne Professionalism Award at the Annual Meeting.

NH Supreme Court Associate Justice Carol Ann Conboy received the 2016 NHBA Award for Distinguished Service to the Legal Profession from Jack Middleton.

New Hampshire lawyers who want to experience the efficiencies of web-based legal research using machine learning technology soon will only have to do one thing – take a Pro Bono or Reduced-Fee bankruptcy case.

NHBA Annual Meeting panelist Andrew Arruda, co-founder and CEO of ROSS Intelligence – maker of ROSS, an artificially intelligent lawyer who responds to direct legal research questions (kiss keywords goodbye!) – made the offer to 200 lawyers and judges at the Oct. 28 membership meeting in Portsmouth.

“If you’re working in New Hampshire in the areas of pro bono or at a legal aid clinic, ROSS is available to you completely for free, so you can go and start using it,” Arruda said in an interview with Bar News after his presentation. “That’s part of our ethos, which is to ensure that AI technology isn’t just for one type of lawyer at one type of firm, especially considering how much power it can bring to folks who are helping in legal aid clinics and doing pro bono or low-bono work. It’s just a huge thing that they should be equipped with.”

Arruda presented as part of a panel organized by NHBA Immediate Past President Mary Tenn. Moderated by NH Supreme Court Senior Associate Justice Gary Hicks, the panel also included James Sandman, president of the Legal Services Corporation (LSC); Rebecca Love Kourlis, executive director of the Institute for the Advancement of the American Legal System (IAALS) and a former Colorado Supreme Court Justice; and Paul Lippe, former CEO of OnRamp Systems, a web-based knowledge-sharing platform for corporate legal departments.

A lawyer who practiced at a small firm in Canada before helping to create ROSS, Arruda emphasized that legal research using AI levels the playing field for solos and small firms. The service is currently available for bankruptcy cases and intellectual property will be added soon, Arruda said. As the company rolls out the service for new case types, New Hampshire Bar members doing public interest work will be among the first to use the technology at no cost.

“There are a lot of misconceptions, but the overarching one is that AI is going to replace lawyers,” he said. “I think what we need to really start thinking about is how it can enhance our abilities and furthermore actually make us more competitive and lead to more work.”

Liberalizing the Profession

As is the case with many professions today, the medium-sized law firms are the ones that are being increasingly squeezed in terms of market share and profitability. By loosening restrictions on the practice of law, says Lippe, attorneys could increase the size of the overall market, which would work to their advantage. Regulations on the profession that seek to insulate lawyers and reduce competition actually have the opposite effect, says Lippe, a lawyer and Silicon Valley entrepreneur in the legal tech space. “It’s not a particularly self-aware or even self-interested position to have.”

Lippe stressed the advantage New Hampshire has in being a small state with a single law school and a unified state bar association, circumstances that could enable the kind of collaboration with the court that could see the state become a national leader in making changes to the legal system and marketplace.

“It’s an unusual situation where the providers of the service also have the privilege of setting the regulations for that service,” he says of the legal profession. “In the majority of states, we see bars opposed to change… and that’s against their self-interests and, more fundamentally, sooner or later, it will result in the world saying, ‘Well, you’re obviously only doing this to your benefit. You’re not really thinking about why you’re there, so you’re not going to get to make these decisions anymore.’”

Ultimately, says Lippe, attorneys who have a “growth mindset” and a willingness to adapt through specialization and differentiation strategies, while adopting technologies to streamline their work, will benefit from the changes that are occurring in the field.

“The law as a system of ordering society, and law as a component of GDP and economic activity, is going to become more important,” he said. “Will lawyers as the people who do that become more important? That’s not clear. Certainly, it’s possible to be a bit discouraged by the response over the last five or 10 years, but I think on the whole, most lawyers will figure out how to do that… Maybe if I really like family law, I say I’m going to be known as the person who always does friendly divorces. That’s going to be my brand, and I’m going to be able to do that for more people and have a more distinctive view of the world… You have to find ways to be more valuable to the market and the potential market.”

Closing the Gap

Sandman, the LSC president, also discussed the value of a more liberalized and distributed legal profession, and a legal system that makes better use of technology, as a way to increase access to justice in America. In New Hampshire, more than 95 percent of tenants involved in landlord-tenant actions go to court without a lawyer. That’s just one example of the alarming statistics that are particularly striking in the Granite State, Sandman said.

LSC is the largest funder of legal aid for low-income people in the country, and Sandman has been at the helm since 2011. Resources for legal aid are woefully inadequate, he says. Most Americans simply cannot afford legal services and must navigate on their own a system that was based on the idea that knowledgeable, experienced legal counsel was necessary to ensure fairness and due process. Allowing different types of legal professionals to offer basic legal services at a wider variety of price points would go a long way in alleviating what has become known as “the justice gap,” says Sandman.

“Experienced paralegals can provide very meaningful assistance to clients, and it’s time to loosen up the rules and let them do more,” he said during the panel discussion.

As the digital divide disappears and smartphones become ubiquitous, opportunities to leverage technology to assist low- and moderate-income consumers with legal problems have proliferated. But until regulations and mindsets change, closing the gap seems just out of reach.

Sandman points to legal education as the place where a shift in lawyers’ mindsets can begin. “Law schools pride themselves on teaching students to think like lawyers, but I wish they’d spend more time teaching them to think like clients,” he said.

Foundation and Infrastructure

Kourlis, the founder of IAALS, a national, independent “think-do tank” based at the University of Denver, talked about the value of experiential legal education, a field in which New Hampshire is already at the forefront, thanks to the Daniel Webster Scholar Honors Program at the UNH School of Law.

As part of its “Foundations of Practice” research track, IAALS last year conducted an in-depth study of the DWS program and concluded that: “Actually doing something – surprise, surprise – prepares you better than just studying that something and thinking about doing it,” she said. The study also found that experiential education programming that is developed collaboratively and tailored to the local market has the best chance of success.

Kourlis also discussed how courts are using technology to address the growing number of self-represented litigants in courtrooms across the country. A recent national study of civil litigation dockets performed in conjunction with the Conference of Chief Justices showed that small cases – those disputes involving less than $50,000 – represent more than 80 percent of state court dockets nationwide. The top 20 percent are the ones in which attorneys tend to be involved.

“That’s where the bar is more familiar with what the docket looks like,” she said. “They don’t see that huge swath of smaller cases, but the courts do, and the courts have to get better and better at dealing with those cases.”

In some case types, such as consumer debt collection, that means having court staff to analyze whether the claims match up with the documentation and underlying instruments, but it doesn’t necessarily require a judge, she said. Instead, judges need to have time to focus on more complex cases. “Technology can really help us in the sifting and sorting of these various kinds of cases,” Kourlis said.

“The old notion of treating every case the same does not result in equal justice,” she said. “In fact, cases have different needs and the litigants in those cases have different needs. So, the courts are getting savvier about that and using technology toward that end.”

Most states now have some system for electronically filing cases, Kourlis said. Many are grappling with what assistance self-represented litigants receive in filing and what happens after they file. Most states use different systems for e-filing, so parties can’t file in multiple states through a centralized system, and most don’t allow public searching of court documents. However, she said, states appear to be moving toward systems that more closely resemble the federal court’s electronic case management system, which makes cases publicly available.

Kourlis also noted that New Hampshire is already ahead of other states in terms of its rules related to Electronically Stored Information (ESI). “New Hampshire kind of led the way in terms of proportionality and disclosure,” she said, and the state has a robust meet-and-confer requirement, as well as clear rules about ESI preservation, spoliation and claw-back.

The New Future

The legal system is evolving to provide consumers with more online dispute resolution options and information resources similar to WebMD in the medical field, and the courts will eventually become more transparent, envisions Kourlis.

“I view it as a more porous and more accessible system over time,” she said, adding that she also envisions an increasingly striated profession that integrates more with other disciplines. “For example, I think divorce lawyers should practice with counselors or psychologists or financial advisors and offer those services as part of what they can provide to the client,” she said.

Kourlis likes to think about the future the way Australian law professor and futurist Tania Sourdin describes it: “She says that in Australia, justice is the business of society, not just the business of lawyers and courts, and I think when we make that transition, so that we think about justice as a broader concept in the way that society functions and we interact with each other, and then lawyers are specialists who kind of surround that and can be of service to individuals seeking particular answers or particular outcomes, that’s my best-case scenario.”

Bar associations have the potential to play a key role in realizing this scenario through collaboration with law schools, the bench, and other service providers, Kourlis said.

“If the bar association took the position that they were writing on a blank slate and they were going to create a system that was best designed for the client, for the people of New Hampshire, I think it would give them an open book in terms of what they could do and how they could do it, and a real sense of fulfillment. It’s all about collaborating and sitting around one table, people of different views, trying to figure out what the best answers are, and then looking at it from the position of the client, of the citizen, and not looking at it with blinders that are just related to being a lawyer or a judge.”

Hicks, who moderated the Annual Meeting panel, said he’s not sure what the future holds, but he looks forward to finding out. “I don’t think that facial recognition software will determine who’s lying on the stand and who isn’t,” he said. “I don’t think that’s going to happen, but we’ll see.”

Look for the 2016 NHBA Annual Meeting CLE to be posted soon at www.nhbar.org. For more information about using ROSS to conduct legal research in bankruptcy cases, join a free conference call from 2-3 p.m. Thursday, Nov. 17. For instructions on joining the call, contact Margaret Gilensberg.

NEXT YEAR: The 2017 NHBA Annual Meeting is returning to its roots with a resort-style, multi-day meeting at the Mountain View Grand in Whitefield, NH. Look for more information in Bar News and the weekly NHBA e-Bulletin, and mark your calendar now for June 23 and 24.

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