The Law Society of England and Wales commissioned a report on Neurotechnology, law and the legal profession. Neurotechnology is when a device interfaces with the nervous system and monitors and/or regulates neural activity. The paper’s author, University of Sydney’s Dr Allan McCay, spends a lot of time on scifi/Minority Report shit. Like what are the potential impacts on criminal justice if someone’s thoughts are being monitored, what are the human rights impacts of creating superheroes (enhanced individuals). But as a Biglaw observer, the line that really grabbed my attention was “billable hours vs ‘billable units of attention.’”
McCay prophesizes that the hellish reality of detailing your workday in six-minute intervals will give way to the hellish future of having a device monitor how much attention your brain is really paying to the work you’re doing before a client will pick up the tab:
Some lawyers might try to gain an advantage over competitors and try to stay ahead of increasingly capable AI systems by using neurotechnology to improve their workplace performance. Perhaps clients might provide pressure to do this, and one can imagine changes to billing that may be brought about by the attention-monitoring capacities of neurotechnologies. This might even prompt a move from billable hours to billable attention.
Well, let’s look at the bright side of this panopticon: if the chip tracks your “billable attention” units, at least your bonus won’t be docked for failing to enter your timesheets in a timely manner. SILVER LINING.
The report charts out how this dystopian timekeeping scenario could play out:
Perhaps the day might come when some clients prefer cognitively enhanced lawyers who only work on their matters when they are fully attentive. Whilst the legal profession currently has a variety of approaches to billing including forms that are responsive to the employment of technology in legal work, one metric that many lawyers will be familiar with (perhaps too familiar) is that of ‘billable hours’. In light of the development of attention-monitoring neurotechnologies, the billable hours metric might become too crude for some clients who might prefer to pay for ‘billable units of attention’. In this connection it is interesting to note that the practice of billing by the hour, which arose in the 1950s, was initially client driven, coming from inhouse legal departments. Maybe the inhouse legal departments of neurotech companies might one day drive the development of the billing innovation considered here. The shift to billable attention would involve the gathering of lawyers’ brain data, which could perhaps be reused for other purposes such as making inferences about things other than their states of attention. The mental privacy dimension of a firm’s brain-monitoring system seems unsettling to say the least and one may well see such billing practices as concerning for other reasons.
Of course, militating against this is that lawyers are stubborn luddites who cling to their established way of doing things. Seriously, clients have been pushing for alternative fee arrangements for forever. And while they’re increasingly common, the billable hour still has a chokehold on the industry. I just don’t see that changing any time soon.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
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