One of the barriers to data storage and processing in existing technology is its binary form: the basic component of computing–the “bits”–are limited to binary encoding as a 0 or a 1. Busting through the binary digital constraint would open up a completely new world of computational power. The March 8 issue of Science includes a special section on the line of research designed to do just that–quantum information processing (QIP). QIP uses quantum mechanics to enable an infinite number of states that could be encoded on each quantum bit, or “qubit.” Given the properties of quantum-mechanical objects, it will be an immense challenge to create the physical architecture to support qubits in computer technology, but if the past of computer science is any indication, we’ll get there.

The chasm between binary and quantum computation technologies captures the limits of the emerging law+tech movement. As a number of previous posts have covered, the law+tech movement is designed to leverage the robust data storage and processing capacities now available to shift some kinds of lawyering services from humans to computers. Many of the tasks that can be shifted are routine, such as e-discovery and automated contract drafting. Some of the tasks, however, are quite sophisticated, such as contract risk assessment and patent litigation planning, and some of the innovations coming out of law+tech are opening up capacities human lawyers could not hope to achieve, such as the data visualizations Ravel Law is experimenting with.

Whether you look at this as good or bad for the legal industry, it’s coming so get used to it. But as much as the law+tech innovators promise to change the way legal services are delivered, they can’t promise what I would call “Quantum Lawyering.” What do I mean by Quantum Lawyering?

I spent much of my 12 years of practice working on Endangered Species Act compliance matters for clients, and I still consult with lawyers on complex ESA compliance issues. The other day I was on the phone with a lawyer discussing some of the ESA compliance issues a client of his is having locating a wind power facility. In the course of about 30 minutes we isolated and described the legal issues in play, constructed the legal syllogisms needed to support the correct view of how the ESA should apply to the situation, and developed analogies to other environmental law compliance contexts to support our position. As we were engaging in this intellectual process, I began to think in the back of my mind how law+tech could possibly replicate what we were providing his client. It can’t, because it’s stuck in a binary world whereas we were operating in a quantum world where legal nuances, arguments, and analogies play out in a vast space of infinite possibilities. A combined 30 years of ESA practice between the two of us allowed us to play in that space unconstrained by binary states. As much as I believe law+tech has opened up a new horizon for lawyering, I can’t conceive of how it could replace what we provided in a combined 1 billable hour.

Quantum Lawyering is what experienced lawyers do. It is what lawyers begin to learn how to do in law school, and after five or six years of work experience after law school a lawyer should be able to move within quantum rather than binary space. Among other capacities, Quantum Lawyering consists of the robust ability to:

• innovate legal positions from existing precedents and rules
• design and rationalize completely new legal positions, rules, and arguments
• draw analogies between cases, principles, and policies
• advocate and negotiate on the fly in dynamic legal environments
• match facts and rules along complex sliding scales and balancing tests

I have no doubt Law+tech will enable and assist lawyers in delivering better Quantum Lawyering faster and cheaper, and in that sense may reduce the need for lawyers, but it will not reduce the need for Quantum Lawyering or the human lawyers who can practice it.*

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*But when they invent the qubit, I may need to come back to this topic…