by Richard S. Granat
12th Annual
ABA TECHSHOW
Table of Contents
The Impact of 64 Bits on the Legal
Profession
We are about to reach an inflection point in computing. An inflection point is a
dramatic shift where the course of computing suddenly and quickly takes off in a new
direction. The IBM PC was an inflection point. So was the Macintosh and then Windows 3.0.
The next inflection point will be 64-bit computers. Since many lawyers have not yet even
moved to 32-bit Windows 95, why should we be worrying about the 64-bit future? Because
64-bit computers will enable new applications and power-up old applications like speech
recognition, natural language processing, full motion video, personal agents that learn as
they go, expert systems, and 3Dimensional imaging. 64-bit computing will enable
the wide-spread availability of video teleconferencing capabilities. Increased
computing power will enable the development of new kinds of artificial intelligence tools
which will facilitate the creation of legal advisory systems with a personal
computer without requiring a background in computer programming or costly hardware.
This new power at the desk-top, combined with almost universal access to the Internet
will have a transformative impact on the legal profession -- particularly that sector of
the profession that serves individuals and small business -- the bread and butter of solos
and general practice firms. Utilization of computer technology to automate both law firm
"back office" operations, word-processing, and front office functions such as
case management and automated litigation support has accelerated rapidly during the past
five years. What is new is that the increasing power of the personal computer is
enabling a convergence of technologies into a new platform for computing- a platform that
is extraordinary powerful, ease to use, and which connects everyone to everyone else. In
this environment anyone can become a publisher and many will have the capacity to create
computer applications of some complexity that previously required the skills of an
experienced programmer.
In the domain of legal practice technology it will be much easier to create, without
being a programmer, electronic diagnostic checklists and procedural forms; data-bases with
natural language and intelligent front-ends that are easy to search and report;
intelligent document assembly systems; multimedia interactive forms that incorporate the
lawyer's expertise, audio, and video annotation; and hypertext documents that can reach
out into the Internet and up-date themselves automatically. Powerful searching tools like Alta Vista enable anyone to literally
find one or two documents or a string of words among thousands or even millions of
documents. It will not be long before we can carry the equivalent of an entire law library
in a portable computer with the capacity to find bits of information among thousands of
documents in the time that it might have taken a half dozen paralegals or attorneys to
find the same information just a half dozen years ago.
The convergence of these technologies provide the foundation for new legal information
services that threaten and challenge the existing configuration of law practice. [See: Granat: From Legal Services to
Information Services]. While lawyers computerize more and more of their work, the
use of information technology in the delivery of legal services is not limited to
automating existing law practices.
Technology is reforming the world and at it will transform the delivery of legal
services, in ways not anticipated by today's legal profession. The technology that is
being used to automate law practice is about to escape from the control of lawyers, no
longer the lawyer's servant, and become a tool that anyone can use. Like many aging
industries, the legal profession is slow to perceive external threats and slower still to
respond to totally new patterns of service delivery. Threats from outside the playing
field tend to be discounted. An institution in decline tends to use new technology to
improve its internal operations, while the major threat comes externally in a form that is
not easily recognized. New technology is often used by a business in decline to become
more efficient at their declining activity. Looking backward, in an attempt to preserve
what was, decision makers try to automate the past. New entrants to a field, on the other
hand, use new technologies to redefine the basic pattern of activity, restructuring the
industry itself.
Back to Table of Contents
Interactive
Multimedia Legal Documents
Consider the potential for interactive multimedia legal documents. A lawyer
communicates legal information through legal documents, letters, memorandum, and voice.
These modes of communication can be captured in software. Indeed, a multimedia legal
document is a form of software. Like computer software, a multimedia legal document, is an
executable document or a form of text that causes an event to happen. Legal documents can
take on the attributes of software. Like software, a multimedia legal document can support
interaction with users, pass data to other documents, and execute actions outside of
itself. A multimedia legal document can be "smart" enough to customize itself to
the reader, based on decisions that the reader makes, is self acting and enable to
schedule and carry out actions, based on triggers that have been programmer into the
document. A trigger represents a condition that, when fulfilled leads an executing program
to take action, such as sending a notice to the client directing the client to file a
document with a court, or publish an annotation with voice, video, and graphics, so that
the document teaches the reader as well as accomplishes a legal result. These interactive
documents will include help systems with nested levels of interactive assistants which
allow the user to drill down to any level of explanation necessary to facilitate
understanding and explain the law that is incorporated in the document.
This idea of multimedia legal documents is not far-fetched. They are already being
produced. The Maricopa
County Arizona court system has experimented with multimedia kiosks during
the past few years that enable citizens to generate and file their own legal documents in
divorce, child support, landlord tenant matters, and simple estates. Approximately 25,000
individuals used these kiosks during the first year of operation, and the County is now
expanding the number of kiosks from 2 to 150 throughout the area. [See QuickCourt Project/North Communications].
These developments are not limited to stand-alone computer kiosks. Already we are
witnessing non-lawyer publishing companies creating web sites, that enable a person to
complete a legal document from a questionnaire appearing on the screen in one's home. [See
The People's Law Library of Maryland].It
will not be long before these legal documents will also be annotated with audio and video,
and incorporating knowbots (intelligent agents) that will remind the user that certain
documents have to be filed in a certain order, also incorporating detailed instructions
which replicate the aids that lawyers now use in their practice. The day when people can
ask their home computers an intelligent question and get a relevant answer at low cost
from the convenience of their homes is the day that many lawyers will be looking for work.
The suppliers of these multimedia legal document programs are not likely to be law firms,
but private publishers like Nolo Press that
recently reported it has sold more than 600,000 software programs that generate wills for
any state in the nation- and this program is a simple document assembly program that does
not have any of the capabilities of the multimedia legal programs that will soon be
available. One only has to look to programs like Turbotax,
a complex multimedia program that incorporates expert systems technology, audio and video
help systems, forms completion capabilities, and automatic filing capabilities to see the
future.
Law firms are not only not immune from these developments, but because law is largely
information, law firms should be at the forefront of organizational re-design efforts
based on information technology that lead to the creation of new legal services that
incorporate these technologies. Law firms have used information technology to streamline
back-office processes such as timekeeping, accounting, records management, and routine
word-processing. Many firms use automated litigation support methods, some firms use
automated document assembly programs, and there are daily stories of how lawyers are using
information technology in the court room. However much of "real" lawyer's work,
despite the widespread placement of computers on many lawyer's desks, has remained
relatively untouched by information technology. Lawyers, have fallen behind the times,
failing to understand the vast changes that the conversion of all law from "print on
paper" to electronic form will have on law and law practice. Lawyers still counsel
clients on a one-to-one basis, negotiate and mediate disputes in face-to-face meetings,
draft legal documents, represent people in physical courts, and by and large, search for
law in law books located in law libraries. We are still at the beginning of a transition
period where "law" is still an enterprise based on print technology. When we
have reached this end of this transition period all "law" will be in digital
format and this will change how we think about law and the role of the profession.
Back to Table of Contents
The Impact of Information
Technology on Legal Practice
The impact of electronic media's transformation of law and the legal profession is not
well understood. Law has been based on print technology. Print technology has been the
basis of creating informational boundaries around the legal profession. The separation of
print materials into separate law libraries, required special intellectual tools to
navigate help make law into a separate discipline. Lawyers came to have exclusive control
over this informational space, and citizens were easily excluded from this domain.
Conversion of legal print materials into electronic media, and the invention of searching
tools that can finding anything within this media with great precision, reduces the
control that lawyers have over this informational space. Cyberspace is a place that does
not support fixed boundaries and one effect of the new media has been to break down
professional boundaries. Even the relatively simple programs that are sold by firms like
Nolo Press have overcome the barriers that used to
add value to the lawyer's work by narrowing these informational boundaries. The space in
which legal materials exists is no longer a physical place and this has implications for
the organization of the profession and the way the profession relates to non-lawyers, both
clients and other professionals like paralegals, who have been outside the boundary of the
profession. [See ABA
Commission on NonLawyer Practice ].
Back to Table of Contents
Information is Free
The Net is a new environment, where the ease of information transfer results in
unanticipated consequences for all producers of intellectual content, including lawyers
who make their living off the knowledge of what law is and how law can be researched and
discovered. Esther Dyson, a well known observer of the software industry in an article she
wrote last year for her newsletter and subsequently reprinted in Wired Magazine, predicted
that the Internet will drastically change the economics of content. [See Dyson, Intellectual Property on the Net].
She predicted that the expansion of the Internet and the widespread availability of
information will result in an increasingly competitive marketplace where much intellectual
property is distributed for free and suppliers expand at a very fast rate. Much of her
predictions have come true of the software industry. The software industry is undergoing a
massive reorganization, where software is becoming a commodity, distributed either for
free or at very low cost. The new sources of revenue are training, technical assistance,
and support. These processes represent intellectual value which can't be replicated
without a person around to do the task.
If Dyson's hypothesis proves to be true, the informational content of law will be
sucked out of a lawyer's practice and become accessible for all either for free or at very
low cost. The good news is that lawyers who can offer unique, services that are not
easily replaceable will find that there services are in even more demand and increase in
value if you are very good at what you do. Individualized personal services such as
negotiation, advocacy, legal counseling in complex situations, mediation, and litigation
are not tasks that will ever be done by a computer. Moreover, people don't want to buy
legal services from a computer. Clients want a relationship with a person. The trick is to
learn how use information technology to create and sustain individualized personal
relationships. However, lawyers that offer commodity legal services will find themselves
displaced by new lower cost services offered by either newly formed electronic law firms,
or new non-lawyer suppliers that have come into the marketplace.
Dyson's rule that on the Net "content is free" or is available for very low
cost suggests how one should operate a law firm in a digital age. What becomes valuable
are services that are not easily replaceable. The implication that flows from Dyson's
analysis is that one should give away legal information for free in a variety of formats,
in order to charge for more complex personal services that can't be easily replicated. Yet
giving legal information away for free would undermine the economic foundation of many
solo practitioners and small firms for which service in routine matters constitutes the
basis for their practice.
If Dyson's theory about the impact of the Internet on intellectual content holds true,
the legal profession is about to undergo the same kind of restructuring that is now
happening in the software industry.
Back to Table of Contents
Legal Profession
Restructuring
According to Peter F. Drucker [See Peter Drucker OnLine at:
http://www.dgsys.com/~tristan/technodrucker.html], there are several early
indicators that are near certain warnings that a major industry is about to undergo major
structural change:
The most reliable and the most easily spotted of these indicators is rapid growth of an
industry. This was true of the legal profession during the 1980's, and law schools
continue to graduate lawyers in record numbers.
- The way it perceives and services it's market is likely to have become
inappropriate.
- The convergence of technologies that were previously seen as distinctly separate.
- An industry is ripe for basic structural change if the way in which it does business is
changing rapidly.
All of these indicators are now present, or were recently present, in the legal
profession. Peter Drucker's perceptions about structural industry change are
uncanny:
In the 1980s' the legal profession experienced rapid growth. Beginning in 1989, the
onset of the last major recession, the legal profession began to downsize drastically in
response to changes in the economy. New information technology is about to make another
inroad into law practice by the availability of new lower-cost alternatives based on
information technology. The same redefinition can be seen in health care, where self
administered, over the counter drug tests are increasingly displacing the more costly
variety performed by physicians. Traditionally the medical community has resisted such
tests, claiming they are unreliable. The public, however, sees the overwhelming advantage
in time, cost, and freedom from control by an intermediating professional.
Back to Table of Contents
Disintermediation
As our economy has become complex, the number of intermediaries in the chain between
the consumer and the goods or services to be consumed has increased, each supposedly
adding value by their contribution along the way. This trend is now reversing. Information
technology forces disintermediation. Disintermediation consists of any direct transaction
or exchange of goods and services that bypasses a middleman, professional, specialist, or
institution that is normally involved in such a transaction. The more intermediary a job
or business is, the more vulnerable it is to disintermediation. The lawyer is the classic
intermediary, acting as a broker, between the individual or corporation and our legal
system. In every sector of our economy, disintermediation is creating major business
opportunities by reducing the value-added chain to its most efficient number. Mail-order
is one of the fastest growing sectors in retailing. Videocassette recorders are
disintermediating television and movie theaters. HMO's are a disintermediating agent in
health care. And do-it-yourself is disintermediating a host of fields.
Disintermediation is also having an impact on the professions. Vocationally,
intermediation is synonymous with overspecialization. Disintermediary livelihoods can be
described as activities that cut across the narrowness and over-specialization of law,
medicine, and education. The paralegal profession is disintermediary because it provides
the option of a less specialized professional which is appropriate to the problem to be
solved. Service economies are reacting and adjusting to having too many intermediaries.
Every intermediary adds costs that are passed on to the consumer. The more intermediary a
job or business is, the more vulnerable it is to disintermediation. The lawyer is the
classic intermediary and therefore the role of the attorney is threatened by non-lawyers
delivering similiar services and people doing withut a lawyer by doing their own legal
work as pro se litigants. [See generally:
http://www.pro-selaw.org].
Back to Table of Contents
Client as
"Co-Producer"
Involving the client as a "co-producer" of legal services by having the
client do some of the legal work herself is another approach to disintermediation. By
providing clients with a variety of computer based virtual assistants, it is possible to
effectively involve the client as a co-producer of legal services, dramatically reducing
costs. Cost reduction, and the ability to offer legal services at reduced fees, can open
up new markets for law firms that know how to employ information technology to sustain a
competitive advantage. [See Divorce Law
Information Center and
Maryland Family Lawyer as
an examples of a new wave of unbundled, disintermediation legal services now
being offered on the Net].
Back to Table of Contents
The Digital Lawyer
How have lawyers prepared themselves to deal with this technological revolution? As a
profession, lawyers have fallen behind other professions and business in society.
Information technology, for example, has penetrated the medical profession, affecting
every aspect of present day medicine, more than the legal profession. This lapse in
learning has consequences. Already lawyers who have made the effort to keep up with
technology have an edge over those who haven't. The digital lawyer is not a computer kiosk
that spews forth legal documents and legal advice, although these appliances will
proliferate as discussed above. Rather the digital lawyer is a lawyer who, as M. Ethan
Katsh, a professor at the University of Massachusetts who has thought more about these
issues than any other legal scholar, is one who has a:
The vast computing power that is about to come upon us will require that every lawyer
and law firm think through the implications of new information technology in their own
practice if they are to survive. Younger lawyers, more technologically adept, will do
whatever is necessary to survive in what has become a very competitive environment. New
lawyers graduating from law school in still record numbers will do whatever it takes to
gain competitive advantage and the creative use of information technology is clearly the
single most important strategy for carving a unique market position that will create value
over the course of one's career. A minimum level of computer literacy is already possessed
by these new lawyers who are now graduating from law school. Almost all have personal
computers, are comfortable with using a windows-based word processor, and create their own
documents directly on the computer without the help of a secretary or other support staff.
Most present day law students are comfortable with Windows 3.1, with many already making
the transition to Windows 95. Many use a personal information manager; are familiar with
basic spreadsheet and data base technology, and have used tax preparation programs and
other specialized software programs, either in college or in personal life. Some students
are comfortable in using electronic textbooks, have used computer-based outlining
programs, and presentation software. All have had experience in using Lexis and Westlaw
and mastering electronic searching technology. Most recently these students have learned
how to use the Internet and use it for e-mail both in class and to communicate with
friends and relatives. If you are practicing lawyer, with no distinguishing capabilities
that attract clients far and wide, and you are still operating in a paper environment, you
will continue to fall behind unless you master at least these fundamental skills.
Achieving this minimum level of competency, doesn't make one a "Digital
Lawyer" in the sense described by Ethan Katsh. What are the skills that are necessary
to become a digital lawyer in an age where all law is in electronic format? There are at
least three sets of skills that modern lawyers need in order to capitalize on new
developments in information technology These are electronic information retrieval skills;
skills in electronic communication; and skills in electronic publishing.
Back to Table of Contents
Electronic Information
Retrieval Skills
Lawyers were one of the first professions to use automating information retrieval
technology through the use of Lexis and Westlaw. Many lawyers use automated case
management systems and automated litigation support systems. But many do not. Electronic
information retrieval skills is a broader concept than understanding how to find a
particular case in Lexis or Westlaw. As an information manager, the digital lawyer
understands that the legal world consists of a set of databases, both within the firm and
outside of the firm. These data bases contain information on clients and prospective
clients; cases; documents and prior firm work product, attorneys within the firm and in
other firms; judges and courts; financial information, both external and external. New
searching tools that have been created only during the last 18 months, originally designed
for sifting through the millions of documents on the Internet, can now be used to sift
through these data bases within law firms to pinpoint particular pieces of information.
Understanding the client's business often involves understanding how the client uses
information and the sources of those bits of information. Getting results often involving
finding information quickly and have the capacity of converting this information into
forms of knowledge that is useful to a client. In an electronic environment it is critical
to understand how data bases are structured, how to search through data bases, and how to
report the results of the searches in a variety of formats and contexts, whether the
report is a list of critical documents at a trial or a list of critical receipts in a
client's tax audit, or an industry analysis that is the basis for a new law firm marketing
strategy. Knowing how to design, create, and retrieve information, from data bases, both
legal and non legal, quickly and efficiently is the hallmark of the digital lawyer.
Back to Table of Contents
Electronic Communications
Skills
A second critical skill is understanding how to communicate electronically.
Communication is at the heart of the legal enterprise. Lawyers communicate to clients, to
other lawyers, to courts and agencies. Knowing how to use the tools of electronic
communication is a broader idea than simply knowing how to use an e-mail messaging system,
although that is important start. Clients expect fast communications and instantaneous
legal services. Every body wants their work done yesterday. Knowing how to communicate
electronically includes skills such as knowing how and when to use e-mail; how to set up
facilities so that clients can provide feedback to the firm on client services; using
telecommunications to cement relationships with clients by providing electronic notice of
events important to the client, and marketing the firms services through electronic means
to attract new clients who also populate cyberspace. It is predicted that by the end of
the century, sixty-five percent of the American population will be wired into the
Internet, and almost every business entity will have a presence. Those who have Internet
access are likely to be better educated and more affluent segments of the population. This
is the group that law firms want as clients, and the most cost effective way to reach this
group on a broad scale is electronically.
Knowing how to use electronic communications technology also means knowing how to use
software based presentation and simulation programs to make an argument, or build
consensus for an agreement. There will come a time when every case of consequence and
complexity will be litigated using different kinds of simulation technology.
Back to Table of Contents
Electronic Publishing Skills
Lawyers have referred to their firms as "paper" factories. This metaphor will
cease to be relevant as firms switch over to electronic document production and
transmission. Law firms will be in the "bit" manufacturing business. By
electronic publishing we mean more than word processing. Understanding modern electronic
publishing technology means knowing how to use these technologies to manage the shift from
delivering legal services on a one-to-one basis to a one-to-many basis that
teach clients about the law as well as provide services to them. It means having the
capacity to produce multimedia legal documents and file or deliver them electronically any
where in the world. Legal document's produced in this manner will inform their users as
well as automatically adapt to changing circumstances, and notify the user that they need
to call a lawyer for legal advice. Consider the possibility of a law firm producing an
electronic employment guidance manual for its clients, customized for each client
organization, that provides legal guidance to human resource managers engaged in
day-to-day decision-making. The electronic manual covers most routine situations with
complex situations identified in advance that require that the human resource manager
contact counsel before taking any action that is likely to cause liabilities. The manual
is always up-to-date, revised electronically by the law firm from its offices. The firm is
paid for the production of the manual as well as the advice provided and is retained to
keep the manual up-to-date and current.
In an electronic environment, legal documents may have less permanence that in a print
culture, with built-in triggers that modify the documents terms based on changed
circumstances that both parties have agreed to in advance. A child support provision in a
Marital Separation Agreement, and a partnership agreements, are two documents that
immediately come to mind.
It is not necessary that the lawyer understand and know how to implement every command
in a software program that produces legal work, although for some tasks reasonable fluency
might become the standard. If the lawyer is a solo she might have no choice but to become
expert in the use of the program. In a litigation practice, automated litigation support
methods, for example, may become a required skill. In the not too distant future a lawyer
who does not use automated litigation support methods might incur malpractice liability if
she loses a case to a lawyer who does. Some of these electronic skills can be purchased
from non-lawyer specialists, but the digital lawyer is one who knows when to use a
particular technology, how to manage the technology, and how to evaluate the output or
results from using information technology
How does one acquire such skills? The same way that one learns anything new after
formal education has been completed-by creating a program of self-education. Read books,
attend computer shows for lawyers like TechLaw, participate in continuing legal education
seminars that deal with these subjects, consult with colleagues who have already mastered
these skills; and if necessary take short courses from non-legal vendors in basic computer
skills. An entire industry has developed to re-train corporate America in computer skills.
Law firms sometimes send their support staff to these seminars and workshops with good
results, but rarely do lawyers attend themselves. This relegation of information
technology education to a function that is only to be the province of support staff is
based on a fundamental misconception of what it will takes to be a successful lawyer in a
digital age.
Back to Table of Contents
Conclusion
One would not use farm models to manage a factory economy, and one shouldn't use
factory models to manage an information economy. One hallmark of the new economy is the
movement to define business in terms of customers' changing needs. In a
study of pro se litigants in domestic
relations cases that the University of Maryland School of Law recently
completed, seventy-four percent (74%) of people in the study sample who represented
themselves reported, that they were satisfied with the result and they would do so again.
Fifty-four (54%) percent reported that they decided to represent themselves because they
thought that a lawyer would be too expensive, and an additional eighteen percent (18%)
reported that they represented themselves because they did not think that the problem was
sufficiently complicated that a lawyer's services were required. The legal problems in the
study sample included divorce, child support, child custody, modification of child
support, visitation, and name change. There was no variation in response when the data in
the study sample was controlled by type of case, income level, or educational level. In
other words, the reported response was uniform across the entire study sample. This data
should be a warning bell to the legal profession that the way lawyers perceive that they
should be delivering legal services is out of touch with the way clients want to be
served. Given an alternative, customers will rush to other alternatives rather than pay
what they perceive to be the excessive fees now required to gain access to the legal
system.
Numerous studies, however, have documented that there are vast legal needs that are not
being served among low and moderate income families. [For discussions of the unmet legal
needs of low-income groups and proposed solutions, see Consortium
on Legal Services and the Public, American Bar Ass'n, Agenda for Access: The American
People and Civil Justice: Final Report on the Implications of the Comprehensive Legal
Needs Study (1996) ]. Richard Susskind, identifies in his book on The Future of Law
(Oxford University Press, 1996), an enormous market of ummet legal needs that he
labels as "the latent market for legal services" He correctly argues that this
latent market will never be adequately serviced with existing methods of legal service
delivery. He argues that lawyers must become "legal engineers" and create
new ways of delivering legal services that are based on information technology in order to
serve and reach this latent market for legal services.
Emerging information technology can reduce barriers that have excluded people from
access to the legal system because of cost factors. Information technology offers new
solutions to the problems raised by the current economics of practice and by
dissatisfaction with the present system and the opportunity to service these needs by
lawyers who have the capacity to respond in a way that meets the client's need for an
appropriate level of service at an appropriate price.
Judge Learned Hand once said: "If we are to keep our democracy, there must be one
commandment: 'Thou shall not ration justice." The test of a system of justice is
whether it serves people whose need is great- by their measurement not ours." The
lesson of re-engineering in other sectors of economy is that organizations become more
productive and profitable when they put the customer needs at the center of the planning
process. Often the customer is involved to some degree in the production process as either
a co-producer, but certainly as an evaluator and critic. The shift from a mechanistic to a
holistic paradigm, has its roots in science and in technology, but has moved into our
ideas about business and organization. Law firms and lawyers can borrow from these
approaches to create law firms that truly meet client needs, by using the new electronic
space in creative ways to develop models of legal service that clients perceive to have
real value. Only then will the profession regain the position of respect and credibility
it desperately wants in the mind of the public.
|
