Digital Gold – New Legal Opportunities Emerging from Technology Innovation

By Rohit Talwar, Steve Wells, and Alexandra Whittington

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.

To find out more about the developments, ideas, tools, and approaches to help you navigate a fast changing future, why not attend one of the events taking place during Fast Future’s London Futures Week - March 30th - April 5th 2020.