What are new practice areas that solo, small, and medium firms should prepare for in their 5 to 10-year plans for the future?

In the search for the next wave of growth, future-focused law firms are learning to embrace the futurist perspective as they evaluate the opportunities arising from cutting-edge technologies such as artificial intelligence (AI). These technologies will enable new organizational structures, services, and business models in the business horizon. Here are three new practice areas that firms might want to prepare for in the coming few years.

1. Evidence and liability issues from autonomous machine “testimony”

A growing array of “smart” objects are enveloping our homes, workplaces, and communities and the volume of legally admissible data from these devices is likely grow at an exponential rate over the next decade. Firms need to start building expertise around the admissibility and verifiability of the data collected. For example, the design trend for voice-activated technology is driving a rash of seemingly sentient technology in the form of digital assistants, smart appliances, and personal medical and wearable devices. Law firms may be asked to represent clients in cases dealing with evidence, witnesses, accidents, or contracts hinging on theoretically immutable digital proof such as time-stamped video and audio recordings. Attorneys may seek to specialize in addressing the data issues related to domains such as digital twins and personas, surveillance capitalism (companies exploiting customer data for commercial gain with and without full approval), and digital privacy rights.

2. Liability from AI denial of service, access, or unfair treatment

AI has already been applied in the redemptive justice system in the U.S. and by companies such as Amazon in recruitment systems. In both cases respectively, AI has been found to treat people of color and women unfairly. Despite issues surrounding bias, AI is likely to be employed increasingly in such contentious areas by companies, organizations, and institutions. Applications might include determining an individual’s access rights to healthcare plans, benefits, insurance, school choice, and jobs. If AI denies access to services, this opens up potential litigation opportunities. Legal firms will have to equip themselves with the necessary tech-savvy staff and tools in order to be able to demonstrate that the machine or its algorithm were unfair in their decision-making. Furthermore, if these cases become commonplace, governments may demand that AI systems are vetted before their implementation. Law firms could provide a new service to clients by playing a future role in evaluating the fairness and potential legal liability associated with such AI systems. 

3. Machine-mediated dispute resolution

In the future, law may be administered autonomously. For example, an electronic Decentralized Arbitration and Mediation Network (DAMN) has already been implemented. The system is an open-source dispute resolution framework for smart contracts executed on a blockchain. The technology allows smart contracts to transcend national borders as it provides its own legal framework. Therefore, if the parties involved agree to use the DAMN, then they are already agreeing to a specific legal framework, making it a far more efficient process from the start.

A key potential problem that arises from a law firm’s choice to utilise and offer out such technology for client use is that the firm runs the risk of cannibalizing existing revenues. The technology would most likely be offered as a subscription service that would cost far less than traditional arbitration services. However, this revenue loss might be balanced out by the fact it would cost a client far less than traditional mediation service and could therefore attract more customers in the long term. A key practice opportunity here might lie in advising clients on which automated contract and dispute resolution system to and in managing the process on their behalf.

A version of this article originally appeared in ABA Law Practice Management

About the Authors

The authors are futurists with Fast Future who specialise in studying and advising on the impacts of emerging change. Fast Future also publishes books from future thinkers around the world exploring how developments such as AI, robotics and disruptive thinking could impact individuals, society and business and create new trillion-dollar sectors. Fast Future has a particular focus on ensuring these advances are harnessed to unleash individual potential and enable a very human future. See: www.fastfuture.com

Rohit Talwar is a global futurist, keynote speaker, author, and CEO of Fast Future where he helps clients develop and deliver transformative visions of the future. He is the editor and a contributing author for The Future of Business, editor of Technology vs. Humanity, and co-editor of a forthcoming book on Unleashing Human Potential–The Future of AI in Business.

Steve Wells is the COO of Fast Future and an experienced Strategist, Futures Analyst, and Partnership Working Practitioner. He is a co-editor of The Future of Business, Technology vs. Humanity, and a forthcoming book on Unleashing Human Potential–The Future of AI in Business.

Alexandra Whittington is a futurist, writer, faculty member on the Futures programme at the University of Houston, and foresight director at Fast Future. She is a contributor to The Future of Business and a co-editor for forthcoming books on Unleashing Human Potential–The Future of AI in Business and 50:50–Scenarios for the Next 50 Years.

Image credit: https://pixabay.com/images/id-472496/ by suc

The future of the legal industry is being reshaped by a number of rapidly advancing technologies and the disruptive ideas they enable. Today’s lawyers are being advised to learn to code, develop an artificial intelligence (AI) application, and outsource discovery to machines. Of the many new technological drivers impacting law firms is the secure information exchange platform known as blockchain. Some see it as a the basis for the reinvention of economies while others simply see it as means of secure and incorruptible information exchange between counterparties. This cloud-based distributed ledger technology provides a source of irrefutable record of every transaction. In legal it is enabling fully automated self-executing “smart” contracts, and has the potential to help attorneys provide new services and create new value for clients and law firms. Blockchain is known as the structure underlying Bitcoin and other digital currencies, but its applications in the legal sector are still evolving. This article provides an overview of the technology, highlights example applications and case studies, and presents a possible timeline of future developments over the next decade or so.  

Overview: Blockchain and Bitcoin 

Blockchain and Bitcoin have gained notoriety lately as a potential solution to an outdated and burdensome system for managing financial transactions between counterparties. Today most financial transactions between counterparties are settled via financial intermediaries which adds time and cost to the settlement process. Blockchain offers a distributed ledger model whereby the parties settle directly with each other, the transactions are recorded, secure, and immutable, and the counterparty identities remain anonymous. The goal is to enable a simplified and trustworthy financial ecosystem- but these digital peer-to-peer networks, also challenge the authority of institutions (banks, regulators, and governments) and are thus creating disruption. 

According to its advocates, the decentralized nature of blockchain and Bitcoin will cause much-needed disruption, with reverberations far beyond the financial realm. There is an element of social revolution in blockchain, thus it is often portrayed as a conduit for challenging the status quo. Though Bitcoin, a digital currency, is an explicitly financial innovation (i.e., for payments, transfer of funds) blockchain is far less specific. Blockchain serves a critical role in the administration of Bitcoin, and that of other digital currencies, but it can actually be used to complete other objectives and track the movement, transfer, and ownership of all sorts of things besides money (examples include luxury goods, education credits, property titles, and patents, to name a few). Though blockchain is structured like a traditional accounting tool—it’s fundamentally a ledger that tracks deposits in and payments out, and maintains a running balance—its uses go far beyond counting coins.  

Lest we assume blockchain and Bitcoin are solely the tools of the far-left, libertarian, anarchists, and socialists among us, this technology has captured the attention of global business and industry to the tune of millions of dollars. Among banks alone, one source projects spending on blockchain solutions to grow to over $200 million in 2017, $300 million in 2018, and $400 million in 2019. Perhaps ironically, a great wave of enthusiasm for blockchain now emanates from the business establishment, including stalwarts like banking, finance, real estate, and law. 

Applications to Law Firms 

While the basic metaphor for blockchain is an automated checkbook register that instantly reconciles transactions, several concepts are inherent to blockchain which are ideally suited for applications to law firms. Current legal industry activity around blockchain ranges from the simple—payment for services rendered, verification of contracts, representing companies conducting business on the blockchain—to the highly complex—formulation of an entirely new legal system altogether. Regarding the latter, which would usurp local or national laws to create a globally agreed upon set of codes that govern rights during a dispute, one can see how incredibly large-scale blockchain’s legal applications could potentially become. In terms of contracts and payments, though, the firms now adopting blockchain are attracted to its practicality: it reduces the resources needed to complete day-to-day operations. For example, Goldman Sachs estimates that $11 to $12 billion per year could be saved with blockchain-based clearing and settlement of cash securities, and $2 to $4 billion yearly savings from moving real estate titles to distributed ledgers.

A growing number of industry examples demonstrate the diversity of applications of blockchain and bitcoin to legal services: 

• International law firm Steptoe & Johnson helps clients in all industries manage application of the blockchain in their businesses, and accepts Bitcoin as payment for fees.
• King & Wood Mallesons (headquartered in Hong Kong) has more than a few dozen lawyers who have a focus on blockchain, including smart contracts.
• Perkins Coie LLP partner Dax Hansen (US) launched the first blockchain legal industry practice in 2013, which has grown to over 40 lawyers focused on blockchain technology, digital currencies, and distributed applications of all types.
• Selachii (UK) will implement self-executing smart contracts on blockchain, starting with wills, title registries, and shareholder agreements.
• Allens (Australia) wrote a report suggesting that the future of the legal business model, which profits from an absence of trust between organizations, is imperiled by the rise of blockchain technology.

Outside of law firms themselves, the startup ecosystem is packed with examples of services geared toward marrying procedural business practices with blockchain: 

• Juro uses blockchain technology to underpin the creation and signing of legal contracts.
• The Decentralised Arbitration and Mediation Network (DAMN) operates as a network of smart contracts on the Ethereum blockchain creating an “opt-in justice system for commercial transactions” as a new form of cross-border dispute resolution.
• CommonAccord is creating global codes of legal transactions, automating legal documents such as master service agreements.
• DAO.LINK is an initiative which facilitates brick-and-mortar business interactions with blockchain-based organizations.

Timeline of Possible Future Blockchain Developments in Law 

Next 3 years

• DAOs: Distributed autonomous organizations with no workers and no bosses, just algorithms. 
• Merger and acquisition on “auto pilot”. 
• Elimination of some jobs and roles (banker, advisor, lawyer). 
• Merging AI and blockchain; robolawyers on blockchain. 

Next 5 years

• DAMN – a global legal system for international dispute resolution. 
• Automated arbitration, dispute resolution, and various legal and banking processes eliminating more roles in law firms and banks. 
• Creation of new professional roles to deal with legal ramifications of blockchain. 

5–10 years

• Algocracy: Law is code, code is law.  
• DAS: distributed autonomous societies with automation of services, justice, rights, and laws. 

Blockchain and cryptocurrency have gained unprecedented ground. The central bank of China is piloting a blockchain-based cryptocurrency, a very loud signal about the rising status of the technology which will legitimize its use. Another recent indicator came in the form of headlines screaming about Bitcoin’s price trends, earning investors millions. As futurists, we expect that for every big wave of change there are dozens of small ripples; the revolutionary nature of Bitcoin and blockchain means it will disrupt businesses of all kinds. Because it involves money, contracts, and ownership, this is a special consideration for lawyers and firms.  

Starting now, law firms owe it to their staffs and teams to begin a conversation about blockchain, Bitcoin, and other digital currencies. Information, in this case, is power—blockchain’s distributed disruption of banks, laws, and most traditional social institutions will generate new conflicts, anxieties, and tensions for which legal remedy will be the only solution. It is a likely topic of future legal matters.  

Keep in mind that the best way of describing blockchain is “distributed,” in other words, absent of central authority. A lot of the projects in the works seek to apply this thinking to society at large through distributed autonomous societies (DAS) and distributed legal systems. If a distributed mindset prevails, this will concern lawyers, judges, law enforcement, and anyone in occupations that rely on a centralized legal system.  

Furthermore, the entire basic model of business conduct stands to be disrupted on the same scale as it was during the rise of the internet as a business tool—blockchain, in combination with other technologies like artificial intelligence and cloud computing—will eventually transform the very basis of business and productivity, possibly even money itself. By decentralizing the powers that be, blockchain seems to be the high-tech disruption that will challenge law at every level and function.  

ABOUT FAST FUTURE  

Fast Future publishes books from future thinkers around the world exploring how developments such as AI, robotics, and disruptive thinking could impact individuals, society, and business and create new trillion-dollar sectors. Fast Future has a particular focus on ensuring these advances are harnessed to unleash individual potential and enable a very human future. See: www.fastfuture.com 

Rohit Talwar is a global futurist, keynote speaker, author, and CEO of Fast Future where he helps clients develop and deliver transformative visions of the future. He is the editor and contributing author for The Future of Business, editor of Technology vs. Humanity and co-editor of a forthcoming book on Unleashing Human Potential—The Future of AI in Business. 

Alexandra Whittington is a futurist, writer, faculty member on the Futures programme at the University of Houston, and foresight director at Fast Future. She is a contributor to The Future of Business and a co-editor for forthcoming books, Unleashing Human Potential—The Future of AI in Business and 50:50—Scenarios for the Next 50 Years. 

We must come to terms with the current information revolution and take the first steps to form global institutions that will assure that our society, and our governments, can continue to function through this chaotic and disconcerting period. The exponential increase in the power of computers will mean that changes the go far beyond the limits of slow-moving human government. We will need to build new institutions to the crisis that are substantial and long-term. It will not be a matter that can be solved by adding a new division to Homeland Security or Google.

We do not have any choice. To make light of the crisis means allowing shadowy organizations to usurp for themselves immense power through the collection and distortion of information. Failure to keep up with technological change in an institutional sense will mean that in the future government will be at best a symbolic façade of authority with little authority or capacity to respond to the threats of information manipulation. In the worst case scenario, corporations and government agencies could degenerate into warring factions, a new form of feudalism in which invisible forces use their control of information to wage murky wars for global domination.

No degree of moral propriety among public servants, or corporate leaders, can stop the explosion of spying and the propagation of false information that we will witness over the next decade. The most significant factor behind this development will be Moore’s Law which stipulates that the number of microprocessors that can be placed economically on a chip will double every 18 months (and the cost of storage has halved every 14 months) — and not the moral decline of citizens. This exponential increase in our capability to gather, store, share, alter and fabricate information of every form will offer tremendous opportunities for the development of new technologies. But the rate of change of computational power is so much faster than the rate at which human institutions can adapt — let alone the rate at which the human species evolves — that we will face devastating existential challenges to human civilization.

The Challenges we face as a result of the Information Revolution

The dropping cost of computational power means that individuals can gather gigantic amounts of information and integrate it into meaningful intelligence about thousands, or millions, of individuals with minimal investment. The ease of extracting personal information from garbage, recordings of people walking up and down the street, taking aerial photographs and combining then with other seemingly worthless material and then organizing it in a meaningful manner will increase dramatically. Facial recognition, speech recognition and instantaneous speech to text will become literally child’s play. Inexpensive, and tiny, surveillance drones will be readily available to collect information on people 24/7 for analysis. My son recently received a helicopter drone with a camera as a present that cost less than $40. In a few years elaborate tracking of the activities of thousands, or millions, of people will become literally child’s play.

At the same time, increasing powerful technology will make the fabrication of texts, images, and, increasingly, videos and sounds easy. We can see already in the latest generation of virtual reality sophisticated forms of mimetic representation that promise to be indistinguishable from reality in the near future. The drastic drop in the cost of computation will make it possible to create elaborate histories for virtual events, and biographies for virtual people, that will make those realities entirely convincing. Once a virtual person has forty years of complex memories and records (from credit records to medical records and diaries), the challenge of distinguishing him from an actual individual will be difficult. In addition, as virtual reality merges with social networks, the chaos will be extreme. Facebook friends may end up being partially, and then primarily, avatars controlled by supercomputer networks without the individual being aware.

The impact of the information revolution does not stop there. The use and misuse of DNA material in genetically modified organisms, or for other applications, is becoming exponentially cheaper. Whereas a single human genome was once prohibitively expensive, the cost of sequencing is falling at a rate far faster than Moore’s Law.

As the cost approaches zero for sequencing, Professor John Burn of Newcastle University is one of a growing number who advocate for creating genomes for every single human on earth. Doing so will be easy in five years or less, and the benefits could be tremendous. But imagine an age in which one’s DNA can be picked up off of a glass and duplicated into clones, or combined with other DNA to form payloads for viruses, or employed to manufacture off-the-shelf organs, there will be a desperate need for a set of rules and regulations on the collection and use of genetic information.

There are a host of other threats on the horizon that call out for some international system of regulation and control beyond simple market forces and gentleman’s agreements. Some can be predicted, others we can only speculate about. For example, we will face serious challenges when it comes to the function of money as it becomes entirely digitalized and its value is subject to imperceptible manipulations and alterations on a global scale. So also the rise of micro-drones beyond the control of even governments that can spy and wage invisible wars will require new institutions to contain them. For that matter, the next generation of 3D printing not only promises breakthroughs such as organ fabrication and the synthesis of edible hydroponic meat tissues, but also threatens to make possible the unlicensed production of weapons according to designs. These developments will require new legal and ethical structures before they can be adequately addressed.

The Constitution of Information

I propose that the first step in responding to the information crisis is the drafting of a global “Constitution of Information” that sets down concrete rules concerning the use of information and the maintenance of accuracy of information, thereby establishing a reliable system that is founded on a strong set of checks and balances to make sure that attempts to control information does not lead to even greater abuses.

Although the gathering and manipulation of information has become a major issue, the existing national constitutions on which we base our laws and our governance (in the United States or elsewhere) have little to say about this problem. Moreover, many of us have trouble grasping the seriousness of the information crisis: it remains largely invisible because it alters the very means by which we perceive the world.

We need to hold an international constitutional convention in which we can draft a binding global “constitution of information” that will address the consequences of the information revolution. It would be meaningless simply to propose a text for a constitution at this point because a living constitution is not a written text but rather an institution created through a series of negotiations and compromises. At this point we can only identify the need and the general issues that must be addressed within such a constitution and by institutions created by that convention.

Those who object to such a constitution of information as a dangerous form of centralized authority that will encourage abuse are not fully aware of the problems we already face. The abuse of information has already reached epic proportions and we are just at the doorstep of exponential increases.

In his dystopian novel 1984, George Orwell foresaw the dangers of a centralized clearinghouse for official propaganda named “The Ministry of Truth” in which the imperative to promote veracity is perverted into a factory for manufacturing fiction in the tradition of Stalin. The dangers of such a distortion of any attempt to rectify the tremendous amount of disinformation and misinformation in circulation should be foremost in our minds.

We are proposing a system that will bring accountability and institutional transparency to the institutions that are already engaged in the control, collection, and alternation of information. The point is to give an ethical imperative and a vision for the future. Failure to establish institutions like this constitution of information will not assure preservation of an Arcadian utopia, but rather will encourage the emergence of even greater fields of information collection and manipulation that are entirely beyond the purview of any institution. The result will be increasing manipulation of human society by shadowy and invisible forces for which no set of regulations has been established.

One essential assumption behind the constitution of information should be, following David Brin’s argument in his book The Transparent Society (1998) that privacy will be extremely difficult, if not impossible, to protect in the future in light of technological evolution. We must accept, paradoxically, that information must be made part of the public commons in order to preserve its integrity and its privacy. That is to say that simply protecting privacy will not be sufficient granted the overwhelming development of new technologies for gathering and altering information that will emerge in the years ahead.

Within a future constitution of information, and the institutions that it proposes, there must be a complex separation of powers wherein information is monitored, and its abuses controlled, or punished, according to a meticulous, painfully negotiated, agreement that follows the principles of transparency, accountability and the maintenance of a commons for the benefit of ordinary people. Information could be governed by three branches of government, something like the legislative, executive, and judicial systems that have served well in constitution-based governments following the proposals of Montesquieu for a tripartite system. The branches could be assigned different tasks and authorities within this system for monitoring information. The branches within government of information would have built into their mandates competing interests that would motivate them to limit the power of the other branches. Currently, there is little such balance of power within the global intelligence community or the large IT companies that have such influence globally.

For this reason, I suggest that as part of the three branches of government, a “three keys” system for the management of information be adopted. That is to say that sensitive information will be accessible — otherwise we cannot assure that information will be accurate — but that the information can only be accessed when the three keys are present that represent the three branches of the system. That process would assure that accountability can be maintained because three institutions whose interests are not necessarily aligned must be present to access that information.

The need to both assure privacy and to insure accuracy and reliability will require complex institutional changes and reinterpretations of the constitutional systems that exist already. But as we are already entering into a “post-constitutional” age in countries like the United States, it is imperative that we reaffirm the value of such public contracts so that to keep them from becoming mere ornaments.

The challenges of maintaining a balanced and reliable ecosystem for information cannot be dictated in a single article, but we can set the goal and start to bring together both practitioner and visionaries to put forth a direction and an encapsulation of the central tenets for a system based on transparency and accountability.

(based on article originally featured in The Hankyoreh, June 3, 2013)