Change Of Future Passed

Mladen Vukmir ECTA First Vice-President,[Patent]

 

Many observe that the legal profession is facing unprecedented challenges. The jokes about lawyers may be age-old, as is the profession itself, but it appears that recently they convey a very direct message to the profession, a message broader than before, about the frustrations that society seems to be showing towards the legal system.
 
In some countries the number of new students at the law schools seems to be stagnating or even dropping. The old jokes might have always reflected the social observation of the fact that the parties in dispute who, by the very fact of having entered into a dispute already have great problems, by the very fact of their choice to resort to law, are acquiring a set of additional problems. As a consequence, instead of having one original set of problems, the disputants end up with two sets, where the second set, the legal process, represents a significant difficulty on top of the first set of problems. For some disputants, legal process sometimes results in even greater hardship than would have been the case if they had walked away without resolving the underlying, original set of problems. This perception of a lawyer as a professional who does not subtract but rather adds to the difficulties without even showing any empathy to their clients, made the profession often unloved and sometimes scorned.
 
Once contemporary societies, by the end of the twentieth century, realised that disputes arise at the moment when the communication between the parties breaks down, when the parties consequently can no longer resolve their misunderstanding and misdeeds collaboratively themselves, societies started having second thoughts on the role of law. If disputants are willing and ready to tackle their lack of communication and re-establish it with the goal of solving their dispute themselves, they may realise that lawyers are, in many instances, actually not necessary. Disputants may come to understand that lawyers might exacerbate the existing problems by using legal tools, which in reality are not even meant to be tackling the problem itself.
 
Interest-based resolution methods were thus born, such as mediation and other forms of assisted negotiations. At the same time, the position-based resolution methods, such as litigation and arbitration started shifting their traditional role rapidly. Obviously, having the option to critically examine the role of legal services and the entire system within which they are rendered, and to seek alternatives has historically been relatively new. There can be no doubt that the ascent of law, which started some three hundred years ago, doubtlessly did enable the most significant reorganisation of human society, and did, together with the role intangible assets played simultaneously, enable the fastest and strongest rise in human living standards and an unprecedented creation of wealth. In spite of that, it seems that these solutions are not anymore universally acclaimed by many of the contemporary individuals and businesses.
 
This development has completely changed the rules of the game for the lawyers in private practice and the adjustments have not been easy. It seems that it is the lawyers who are having the hardest time understanding this undergoing social change. Primarily, it is legal education that is still moulding lawyers with the mindset that might have been useful in the times when recourse to the law was considered the only alternative to violence, and thus vastly superior and the preferred solution. Today, it is becoming essential that lawyers unlearn a part of their acquired thinking, as soon as possible, in order to be perceived as humane and constructive participants in the common social projects and as partners to their clients.
 
In the field of intellectual property law, if we look only to the anti-counterfeiting effort over the last decades, we will easily note how inefficient was the use of legal systems. It is easy to see that counterfeiting actually continued its very strong growth in spite all of the efforts by the rights holders to stop it by using the legal system. One can therefore question whether using the legal system as a primary tool in this combat was a right choice in the first place?
 
Similarly, when we look at the social role of the IP professionals with a technical rather than a legal background, we will note that the traditional roles of patent and trademark agents also came under strong pressure in the same period. Due to the technological advances which were becoming available, specialist knowledge in the fields of searching and interpretation of the scope of rights started to be performed by computers, or became so complex that clients started finding them impracticable as business guidance tools.
 
Services that used to be rendered in the past as highly specialized became generic and commoditized at the same time and became available to clients by both corporate and computer competition against traditional IP agents. Service providers replaced patent and trademark agents in many segments, lavishly treating their clients in order to attract their business while making profits on bulk filings. The entire segment of IP rights administration and management got commoditized in a way that it is most often today rendered by corporate quasi agents called service providers in the IP trade. The separate challenge of lack of transparency of patent data and the possibility of a disparate interpretation became burdensome rather than helpful to businesses. It appears that interpretation of patent data can only be salvaged with AI tools, if at all. At its present stage, the wealth of patent data is beneficial only to the major multinational users while it becomes onerous to large swaths of the economy, especially SMEs.
 
It is becoming increasingly clear that what is expected for lawyers is to reform their role in their societies in order to conform with the changing role of law itself. If we try to imagine the future role of law, one thing is clear - it is not going to go away. Human societies have a tendency to keep earlier formats of social organisation even when the circumstances change. This explains how we still have kingdoms in spite of the fact that we did away with feudal social organisation and have replaced it successfully with the rule of law and civil society. As the late justice Blažević, former Chief justice of the Commercial Court of the Republic of Croatia, publicly asserted after his retirement: ‘We are rightly proud by having substituted feudal with civil society, but if we don’t take up the challenge to complement the role of the law when the time for this comes, we will not be able to remain rightfully proud’ (paraphrased).
 
If we look forty years into the future, it seems certain that the profession will change much more than it has changed over the past forty years. While the change has only started picking up (although it was brewing for quite some time), it is clear that the legal profession will change quite radically, simply because the role of the law needs to change. In short, I expect that, instead of remaining skills-based, our profession will morph into a largely creative profession. The skills part will mostly be taken over by computer systems that will apply and interpret rules. I also expect a strong role for artificial intelligence in legislation, where we could gain a more consistent and better-tuned set of rules based on computer input. Human lawyers will be best suited to the role of designers of relations between the social actors and providing input and controlling the computer design. Lawyers will easily build justification for their continued professional role in future societies by creatively solving and realigning the diverging social interests where legal tools will remain only a segment of their entire professional landscape. Legal consistency will likely be forgotten because we need differences to be recognised in order to keep ever more complex societies free to develop.
 
In a world that has long ago reached a consensus that only those who innovate can survive in the markets, it is impossible for lawyers to claim that innovating by introduction of new services and new marketing methods is true innovation that can guarantee the survival and necessity of their profession. It will become necessary to innovate in a true sense, to assist societies to resolve its frictions in novel ways, which can assist smooth prevention and resolution of disputes. Law, psychology, neurobiology and communications sciences will merge into technologies such as artificial intelligence, block-chain and the Internet of things. Lawyers will gain the opportunity to make creative contributions to this process as well as to assist their clients, not with the solutions they have, but with the solutions they will create.

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