Innovation incubator: Duke Law stakes out a leadership role in law and technology
On a Friday afternoon in April, about 150 people crowded into the Bullpen, Duke’s Innovation and Entrepreneurship hub in downtown Durham, filling the high-ceilinged spaces of the former tobacco warehouse alongside walls of whiteboards and flatscreens. They were there to listen as seven entrepreneurs pitched them their ideas for applying technology to a profession that has historically been resistant to such overtures: the law.
The teams had spent 12 weeks in the Duke Law Tech Lab, a new incubator for startup companies that leverages the Law School’s and Duke University’s community of faculty, students, and alumni to support cutting-edge innovations in the delivery of legal and regulatory services. They were now competing for cash prizes, an ongoing affiliation with the Tech Lab, and a chance to capture the interest of the venture-capital investors, law firm chief information officers, and members of the Triangle’s burgeoning entrepreneurial community in the audience. One team, TrustBooks, pitched software to help lawyers manage client funds held in trust, using cartoons and a stripped-down PowerPoint presentation to emphasize the system’s user-friendliness and reliability. Another, Skopos Labs, offered a program using complex linguistic algorithms and artificial intelligence (AI) to make real-time predictions of a bill’s chance of passage through Congress.
That spectrum of ideas — simple tools to streamline processes or reconcile incompatible systems at one end, AI-driven high-stakes prognostication at the other — provided a snapshot of the field of legal technology, a field that has already reshaped some facets of the profession and is in the process of radically changing others. The establishment of a new Duke Law Center on Law & Technology and the launch of the Tech Lab, along with the development of the LLM and JD/LLM in Law and Entrepreneurship degree programs and the Start-Up Ventures Clinic, and the engagement of the Center for Judicial Studies with the profession on e-discovery and other legal technologies, reflect the Law School’s drive to stake out a leadership position in this field.
“We are embracing the moment, we’re not fighting it,” Dean David F. Levi says. “And we’re well-positioned to do so because of the nature of our university, which is entrepreneurial and innovative, and because we are here in the Research Triangle, where there is such excitement and such rich soil for innovation and advancement.”
For students preparing for the shifts and opportunities spurred by technological change, there are new classes on technology in finance and banking — “fintech” — writing for e-discovery, and “smart” contracts, as well as clinical initiatives, workshops, practicums, and externships.
“These initiatives benefit the students we teach and the clients we serve, but there is a bigger picture as well,” says Associate Clinical Professor Jeff Ward ’09, Director of the Duke Law Center on Law & Technology. “The law, from the way that large firms do business, to the way that courts operate, to the basic knowledge needed to aid certain clients, is increasingly tech-driven. So, from an educational perspective and a career-preparation perspective, we are positioning Duke Law to be a leader at the intersection of technology and the law.”
John Fallone LLMLE ’17, whose startup company SendHub was backed by the prestigious Y Combinator incubator and who has worked as a legal consultant for entrepreneurial clients in Silicon Valley, says the law and technology endeavors coupled with the intensifying engagement with the Research Triangle have the potential to profoundly impact Duke Law, its students, and the legal profession. “We’re just starting to scratch the surface of what we can do,” says Fallone, who served as managing director of the Tech Lab during his law and entrepreneurship practicum. “People could start looking at Duke to see what’s next.”
A changing profession
Familiarity with technological innovation is a given for students who know they will be advising startups or following an entrepreneurial path themselves. The extent to which that innovation has begun to permeate every aspect of the legal profession is a newer phenomenon. Many students, regardless of their practice areas, will go to work at firms where a chief information officer oversees such matters as e-discovery, compliance reporting, and conflicts. Conversance in technical terminology as it affects the discovery process, cybersecurity, contractual agreements, among many other facets of a legal practice, is becoming essential.
“It’s no longer good enough to be able to say, ‘Well, the tech guys are going to take care of it,’” says Lawrence Baxter, the William B. McGuire Professor of the Practice of Law. Baxter, a former banking executive who founded Wachovia’s eBusiness group and went on to build and manage all of Wachovia’s eCommerce operations, teaches how emerging technology has transformed finance in his Fintech and the Law class. “You have to understand what it is they’re going to take care of, because there may be policy issues implicated and there are likely even to be impacts to the legal rights of your clients. What employers expect from associates is shifting.”
Technological advances have been reshaping the litigation process for more than a decade — the first e-discovery-related amendments to the Federal Rules of Civil Procedure went into effect in 2006. Those advances continue to transform the litigation process (and litigators’ professional lives) in ways both large and small, from exponentially increasing the amounts of information processed and driving the development of tools needed to efficiently process that information, to vastly improving options for courtroom presentation and introducing social media into the jury selection process, says David Lender ’93, co-chair of the global Litigation Department at Weil, Gotshal, & Manges and a member of the Law School’s Board of Visitors.
“Electronic communications platforms have changed our professional lives inasmuch as we use them, but they’ve also introduced a host of issues to the litigation landscape,” he says. “You have to understand your clients’ communications systems, you have to understand what cloud storage means in terms of possible issues in a case. You have to, when doing discovery, understand metadata, embedded data, how text messaging works, where it is stored, how it is stored.”
The explosion of mass electronic communication into multiple formats — Lender cites one client whose employees use email and four different instant messaging platforms — has companies and law firms investing heavily in e-discovery and Technology Assisted Review (TAR), which adds the self-learning capabilities of artificial intelligence to e-discovery’s high-powered search-and-sift capabilities.
TAR, the process by which software winnows down reams of digital documents to those applicable to a given case, has been honed to an ever-finer point since first entering the legal lexicon around 2009. Because courts are interested in making the litigation process as efficient as possible, Lender expects TAR to become standard protocol within the next five years. “Courts still haven’t ordered it over objections,” he says. “But we are on the precipice.”
Beyond that precipice is artificial intelligence. AI innovators such as ROSS Intelligence offer platforms that turbocharge document review and perform tasks such as searching out similar fact patterns and relevant legal decisions. Such firms as Latham and Watkins, Sidley Austin, and Simpson Thacher are now working with the company. ROSS CEO and co-founder Andrew Arruda spoke to Duke Law faculty last fall at a retreat that Levi calls “eye-opening.” Since then, ROSS has partnered with Duke to provide mentorship to the Tech Lab teams and create a summer internship program for interested Duke Law students.
Next up: distributed ledger technologies such as blockchain, which are seeping into the practice of law, says Clinical Professor Erika Buell, who advised start-ups and technology companies before coming to Duke Law. Blockchain, the technology underlying cryptocurrencies such as bitcoin and ether, relies on a synced, shared database system, where multiple parties can access automatically updated records simultaneously, without accessing the same centralized network. Considered highly secure and resistant to retroactive tampering, blockchain has the potential to upend many aspects of transactional law.
Blockchain and some related platforms also allow for the construction and execution of smart contracts, where the contractual provisions are built into the computer code. Buell says endeavors like the Delaware Blockchain Initiative, introduced in 2016, point to the staying power of the technology; among the initiative’s provisions are the amendment of Delaware law to expressly allow corporations to track shares issuances and transfers using blockchain-based technology.
“The fact that Delaware is moving in this direction makes me think that in the near future, many corporate associates will have to deal with share ledgers on blockchain.” (Ward will teach Law & Policy Lab: Blockchain Law in the fall.)
Duke Law responds
Buell’s Contract Drafting: The Next Generation course, which she developed and taught for the first time last fall, delved into smart contracts and blockchain technology. She was initially interested in giving students a different lens through which to view contract drafting, but she also exposed them to graduates practicing in the blockchain space with such guest lecturers as Ian Darrow ’15, general counsel and chief compliance officer of LedgerX. The New York-based company is awaiting regulatory approval to become the first federally regulated bitcoin options exchange and clearinghouse.
Clinical faculty and students discussed their ideas for technological tools to facilitate expansion of legal services to their clients at a workshop on Feb. 24.
“Most of the firms I surveyed in formulating the course don’t have blockchain experts yet, but I give that maybe a year,” she says. “They’re likely going to end up having some portion of their deals be blockchain-related and then they’re going to need attorneys with that knowledge.”
The Law School is striving to ensure curricular innovation keeps pace with technological innovation, not just in traditional skills courses like Buell’s but also in new offerings such as Law of Robotics and Exponential Technologies. Like Buell, Baxter and co-teacher Lee Reiners relied on practicing professionals and other guest lecturers when they taught Fintech and the Law. Among them were Douglas Arner, the Ken Yun Visiting Professor of Law, who addressed the global spread of fintech, and Lin Chua LLM ’00, co-founder and COO of digital lending company InterNex Capital.
“There’s not really an established academic expertise in fintech,” Reiners says. “The experts are the people who are out in the field doing it. We can add our perspective on the legal and policy angles, but we also have to expose students to people who are in the field, and to the latest developments in the marketplace. It’s a real-time course.”
Outside the classroom, the Center for Judicial Studies has been working with judges, lawyers, and law faculty to create clear guidelines for e-discovery since its acquisition last year of information-governance and e-discovery resource center EDRM. The center had already worked to define the role of e-discovery in litigation by hosting conferences, covering the topic in its quarterly journal, Judicature, and publishing Guidelines and Practices Implementing the Discovery Proportionality Amendments. With the ABA Litigation Section, the center held roadshows in 17 cities in 2015 and 2016, engaging lawyers and judges in a national conversation about the amendments. In May, the center hosted its first workshop with EDRM members, discussing potential projects and reviewing an ongoing effort to develop standardized guidelines for TAR.
“We’re committed to one deliverable a year,” says John Rabiej, the center’s director. “The EDRM community will come up with guidelines explaining how a particular technology operates and what its limitations are. Once we’ve done that, the center will hold a conference where lawyers, judges, and law faculty work to develop best practices.”
Access to justice
At Levi’s behest, Ward has also launched a targeted effort to develop legal tech that addresses access to justice challenges. In the fall, he spearheaded the Access Tech Tools initiative, a project in which clinical faculty and students developed ideas for tools that could help expand access for or otherwise empower their clients. Keith Porcaro ’11, CTO and general counsel of SIMLab, a nonprofit focused on helping people and organizations make systems more responsive and accessible through technology, is helping to lead the initiative.
“One of the reasons why emerging technology is exciting, why it shouldn’t be seen as a difficulty to overcome, is the potential it has to make legal services available to so many people who need them,” says Levi.
Among the projects the clinics have developed: A 501(c)(3) filing preparation tool for nonprofit organizations from the Community Enterprise and Start-Up Ventures Clinics; a document-automation tool to help social workers, AIDS case managers, and health-care professionals provide efficient referral and intake summary documents to the Health Justice Clinic and other service providers; and from the Children’s Law Clinic, a tool to speed up the process for parents applying to the Social Security Administration for disability benefits for their children. Porcaro says projects like these, largely aimed at increasing efficiency in service delivery, are in line with ones he designs for such clients as Bay Area Legal Aid, and the Mississippi Access to Justice Commission.
“A lot of these access problems aren’t tech problems in the sense of putting someone on the moon — we’re not breaking ground in computer science,” Porcaro says. “These are information architecture problems, they’re organizational process problems.”
Rose McKinley JD/LLMLE ’17, who served as student supervisor for the Access Tech Tools project while enrolled in the Start-Up Ventures Clinic, says the initiative was an opportunity to get entrepreneurial experience while addressing real problems in access that technology could inadvertently be perpetuating. The Children’s Law Clinic tool could improve quality of life for disabled children and their families, for example.
“It’s not about flashy answers, it’s about changing the small things that stall the necessary processes to help people,” says McKinley, who will work with technology companies as an associate in Silicon Valley beginning this fall. “What small time-savers could be mechanized in a way that, in the aggregate, would make for a more radical shift in providing services?”
At the April Tech Lab event Ward told the audience that about 80 percent of the civil legal needs of poor North Carolinians go unmet. “Legal technology offers an amazing opportunity to close that gap, but it won’t happen unless we do so deliberately,” he said, “unless we engage in the process and shape AI and other tools to address these needs. There is a lot of capacity to make the world a better place through technology. Some of it is market-driven, but some of it is not, and it’s our responsibility to engage on both ends.”
Keith Porcaro ’11, CTO and general counsel of SIMLab, co-led the Access Tech Tools initiative and the Feb. 24th workshop.
Lawyers need to stay equally engaged with technological change in other areas of practice, policymaking, and regulation, says Weil’s Lender, noting that technology demands adept attorneys in order to function optimally. TAR, for instance, relies on input from lawyers to determine how best to search for relevant documents, he says.
“We’re definitely not at the place where you press a button and the 1,000 most important documents come out. There’s an art to the algorithms. There are a lot of linguistics PhDs who help develop this software, but you must have lawyers who are reviewing representative samples of the production, and making choices about what is important.”
— Forrest Norman