Top 10 Tech Law Trends for 2023 - Nos. 10-6

10. Clarity is Imminent in Regulation of Online Speech

The two recent cases with which we ended our top stories of 2022 suggest, in fact demand, that SCOTUS intervention concerning tech companies’ freedom to control and prohibit speech on its internet platforms is imminent.

Furthermore, in October, the Supreme Court said it will hear at least two cases about online speech. In one case, Gonzalez v. Google, the Court will consider whether tech platforms’ recommendation algorithms are protected from lawsuits under Section 230 of the Communications Decency Act, a legal shield for tech companies to limit content-moderation suits in the bud. The second case, Twitter v. Taamneh, will decide whether social media companies can be sued for allegedly aiding and abetting an act of terrorism, when the platforms have hosted unrelated user content that generally expresses support for the group behind the violence. Both cases will have significant consequences for the tech industry, which has come under increasing pressure over content moderation in recent years amid calls by lawmakers for the limitation of Section 230.

9. More Emphasis on Time

The pandemic reminded us that time was a man-made construct as Mondays became indistinguishable from Fridays and weeks felt like months and what used to take forty hours per week really took twenty-something hours per week even when we took a quick nap after lunch which we ate at whatever time we wished. As the pandemic recedes and time becomes time again, its value will increase. Exponentially. Attorneys will recall how much they enjoyed time and seek to save as much as they can, however they can. Automation will take over more basic legal tasks so attorneys can bill for real value; wasting time waiting for people to take themselves off mute and hunting for digital meeting invites will become intolerable; and identifying and devoting time to mental health will continue to become a priority.

8. Design Reckoning

A renewed emphasis on innovation and efficiency will prompt a new emphasis on design. Why do we do things this way? Why does this platform look like this? Why is this thing structured this way?

Since an improperly completed form can result in summary eviction litigation (the cost of which is prohibitive for many and disproportionally affects the most disadvantaged and vulnerable communities, including women, children, minorities, and immigrant populations) when an individual cannot pay rent, Courts will continue to redesign their standard forms to make them more e-friendly and user friendly.

New law firm economic dynamics and more data revolutionizing KPIs will prompt the redefinition and redesign of traditional law firm constructs like “partner” and “of counsel.” New talent pools with new demands will prompt the redefinition and redesign of recruitment efforts. Those redesigned recruitment efforts will net people with different holiday calendars, family dynamics, foods, and learning styles resulting in redesigned of firm calendars, learning and development programs, and kitchen area accoutrements. New hyper-niche markets will necessarily give practice groups in those markets complete autonomy and force a redesign of firm oversight mechanisms.

New software must look better, work better, be more intuitive both for efficiency and for Renewed emphasis on mental health will prompt the redesign of office illumination, office furniture, and office attire.

Right now, many large law firms accept cryptocurrency as payment to satisfy their cryptocurrency clients. Soon, all firms will need to accept cryptocurrency as payment and will have to redesign their payment portal.

To make contracts more cost-efficient, the whole process will become more collaborative. Contract language will be simpler, interests and expectations more clearly defined, structure less convoluted, negotiation more forthright.

The speed of innovation will prompt a redesign of research and development departments and methodologies.

7. Civil Procedure Reckoning

While we may never formally say goodbye to International Shoe Co. v. Washington, 326 U.S. 310 (1945), Helicopteros Nacionales v. Hall, 466 U.S. 408 (1984), and Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), remote proceedings will force everyone to rethink the tenets of Civil Procedure. What is jurisdiction if it doesn’t matter where we are? What gets ticketed and who gets selected for remote proceedings? What exactly is this information we are exchanging? Are case outcome predictions from Artificial Intelligence mechanisms really attorney work product? What is the role of a mediator in a world run by algorithms?

Civil cases, which took a backseat to criminal case during the pandemic, resulted in a backlog of civil cases and courts will need to eliminate that backlog.

We have examined how the possibility of remote participation in hearings changes the way courts evaluate the burdens and benefits associated with discovery disputes and class actions.

6. The Learning Curve with Which Law Firms Learn to Embrace Technology Gets Steeper

Prompted and/or inspired by Cleary Gottlieb Steen & Hamilton’s Cleary X and Shearman & Sterling’s Legal Operations by Sterling, new arms of centuries old firms launched in 2022 to meet the evolving legal operations needs of in-house counsel, will prompt the creation of similar arms, units, bureaus, and branches in other similarly sized law firms. Which will in turn prompt the creation of such departments in smaller law firms.

More succinctly, lawyers, having learned to embrace technology to function, will now embrace technology to flourish as it becomes apparent that we now dwell in a data-driven world and clients demand the same innovation they use.