Legal Tech, Civil Procedure, and the Future of Adversarialism

Abstract

“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 narrowly focuses 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.” 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? Tackling that question, this Article seeks to enrich—and, in places, reorient—budding debate about legal tech’s implications for law and litigation by zeroing in on the near- to medium-term, not out at a distant, hazy 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 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 reform and research agenda going forward.

Keywords: civil procedure, legal tech, artificial intelligence, machine learning, pleading standards, discovery, legal automation, work product doctrine, adversarial legalism, access to justice, forum shopping