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“Legal Tech” Is Transforming Litigation and Law Practice, and Its Steady Advance Has Tapped a Rich Vein of Anxiety About the Future of the Legal Profession

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“Legal Tech” Is Transforming Litigation and Law Practice, and Its Steady Advance Has Tapped a Rich Vein of Anxiety About the Future of the Legal Profession LEGAL TECH, CIVIL PROCEDURE, AND THE FUTURE OF AMERICAN ADVERSARIALISM DAVID FREEMAN ENGSTROM* JONAH B. GELBACH** “Legal tech” is transforming litigation and law practice, and its steady advance has tapped a rich vein of anxiety about the future of the legal profession. Much of the resulting debate has a profession-focused and even defensive quality in its narrow focus on what legal tech portends for the professional authority, and profitability, of lawyers. It is also profoundly futurist, full of references to “robolawyers” and “robojudges.” But lost in this rush to foretell the future of lawyers is what should be an equally or even more important concern: What effect will legal tech’s continued advance have on core features of our civil justice system and the procedural rules that structure it? This Article seeks to enrich—and, in places, reorient—budding debate about legal tech’s implications for litigation by zeroing in on the near- to medium-term, not out at a distant, robotic horizon. It does so via three case studies, each one exploring how a specific legal tech tool (e-discovery tools, outcome- prediction tools, tools that perform advanced legal analytics) might alter litigation, for good and ill, by shifting the distribution of costs and information within the system. Each case study then traces how a concrete set of civil procedure rules— from Twombly/Iqbal’s pleading standard and the work product doctrine to the rules and doctrines that govern forum-shopping—can, or should, adapt in response. When these assorted dynamics are lined up and viewed together, it is not a stretch to suggest that legal tech will remake the adversarial system, not by replacing lawyers and judges with robots, but rather by unsettling, and even resetting, several of the system’s procedural cornerstones. The challenge for courts—and, in time, for rulemakers and legislators—will be how best to adapt a digitized litigation system using civil procedure rules built for a very different, analog era. This Article aims to jumpstart thinking about that process by identifying the principal ways that legal tech will reshape “our adversarialism” and mapping a research agenda going forward. * Professor of Law, Stanford University. ** Professor of Law, University of California–Berkeley. 1 Table of Contents INTRODUCTION ..................................................................................................................................................... 3 I. THE LEGAL TECH LANDSCAPE ........................................................................................................................... 6 A. Flavors of Legal Tech .......................................................................................................................... 7 B. Technical Limits anD the Trajectory Puzzle ............................................................................. 14 C. Implications ........................................................................................................................................ 21 1. Legal Tech anD the Legal Profession ................................................................................................ 21 2. Legal Tech anD Rule of Law .................................................................................................................. 24 3. Legal Tech anD Distribution ................................................................................................................. 25 II. LEGAL TECH AND CIVIL PROCEDURE: THREE CASE STUDIES ........................................................................ 28 A. PreDictive CoDing, Proportionality, anD Plausibility PleaDing ........................................... 28 1. The New WorlD of Discovery................................................................................................................. 28 2. Proportionality’s Retreat in a Frictionless WorlD ..................................................................... 34 3. Re-Centering Twombly anD Iqbal ..................................................................................................... 37 B. PreDictive Analytics anD Forum Selection ................................................................................. 39 1. Forum-Shopping in FeDeral Courts anD the Promise of PreDictive Analytics .............. 39 2. Will PreDictive Forum Selection “Work”? ...................................................................................... 41 3. The Future of Forum Selection anD Civil ProceDure ................................................................. 44 C. From BorroweD Wits to BorroweD Bits: Legal Tech anD the Work ProDuct Doctrine . 47 1. Information anD ADversarialism: Reframing Legal Tech’s Distributive Costs ........... 47 2. Hickman’s Work ProDuct Bargain .................................................................................................... 51 3. Work ProDuct for a Digital Age........................................................................................................... 53 III. LEGAL TECH AND “OUR ADVERSARIALISM .................................................................................................. 55 A. An IP for Civil ProceDure ................................................................................................................. 56 B. Legal Tech, Information, anD the German (Dis)ADvantage ................................................. 59 CONCLUSION....................................................................................................................................................... 63 2 INTRODUCTION “Legal tech,” most agree, is transforming litigation and law practice, and its steady advance has tapped a rich vein of anxiety about the future of the legal profession.1 Is law like a driverless car, or is it irreducibly complex and grounded in dynamic human judgment? How to square online dispute resolution and automated legal advice with rules governing unauthorized practice of law? Can BigLaw survive? Much of this has a profession-centered and even defensive quality in its narrow focus on what legal tech portends for the professional authority, and profitability, of lawyers. Much of it is also profoundly futurist—full of predictions of “robolawyers,”2 “robojudges,”3 or even an eventual state of “legal singularity,”4 when machines can perfectly predict the outcomes of cases before they are filed. Lost in this rush to foretell the future of lawyers and their robotic replacements is what should be an equally or even more important concern: What effect will legal tech’s continued advance have on core features of our civil justice system and, in particular, the procedural rules that structure it? This Article seeks to enrich—and, in places, reorient—budding debate about what many see as a coming revolution in legal tech. Simply put, if law and the legal profession will look different ten or fifteen years from now, then civil procedure, and the inner workings and structure of the adversarial system, will look different as well. Indeed, though virtually unmentioned in an emerging and lively literature on legal tech, it is the rules of civil procedure and related doctrines that will serve as the front-line regulators of the new legal tech tools, and critically shape their evolution, in the near-to medium-term. As a result, judges, rulemakers, and legislators should begin to think about whether, and if so how, to adapt civil procedure to new litigation realities as legal tech continues its move to the center of the civil justice system. 1 See, e.g., BENJAMIN BARTON, GLASS HALF FULL: THE DECLINE AND REBIRTH OF THE LEGAL PROFESSION (2015); RICHARD SUSSKIND, TOMORROW’S LAWYERS: AN INTRODUCTION TO YOUR FUTURE (2013); RICHARD SUSSKIND & DANIEL SUSSKIND, THE FUTURE OF THE PROFESSIONS: HOW TECHNOLOGY WILL TRANSFORM THE WORK OF HUMAN EXPERTS (2015); Daniel Martin Katz, Quantitative Legal Prediction - Or - How I Learned to Stop Worrying and Start Preparing for the Data-Driven Future of the Legal Services Industry, 62 EMORY L.J. 909 (2013); John O. McGinnis & Russell G. Pearce, The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services, 82 FORDHAM L. REV. 3041 (2014); Dana A. Remus & Frank Levy, Can Robots Be Lawyers: Computers, Lawyers, and the Practice of Law, 30 GEO. J. LEGAL ETHICS 501 (2017); Tanina Rostain, Robots versus Lawyers: A User-Centered Approach, 30 GEO. J. LEGAL ETHICS 559 (2017); Sean Semmler & Zeeve Rose, Artificial Intelligence: Application Today and Implications Tomorrow, 16 DUKE L. & TECH. REV. 85 (2017); Harry Surden, Machine Learning and Law, 89 WASH. L. REV. 87 (2014); Eric Talley, Is The Future of Law a Driverless Car? Assessing How the Data Analytics Revolution Will Transform Legal Practice, 174 J. INST. & THEORETICAL ECON. 183 (2018); David C. Vladeck, Machines without Principals: Liability Rules and Artificial Intelligence, 89 WASH. L. REV. 117 (2014). For treatments in the popular and lawyer-trade presses, see Mark A. Cohen, Legal Innovation Is Not an Oxymoron—It’s Further Along Than You Think, FORBES (Mar. 14, 2017), https://www.forbes.com/sites/markcohen1/2017/03/14/legal-innovation-is-not-an- oxymoron-its-farther-along-than-you-think/; Jason Koebler, Rise of the Robolawyers, THE ATLANTIC (Apr. 2017), https://www.theatlantic.com/magazine/archive/2017/04/rise-of-the-robolawyers/517794/; Steve Lohr, AI Is Doing Legal Work, But It Won’t Replace Lawyers, Yet, N.Y. TIMES (Mar. 19, 2017),
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