The practice of law is experiencing extraordinary changes that
will have a lasting impact on the structure of the legal
profession and the ways in which lawyers approach their
practices. Within the next five years, the practice of law will
change dramatically because of new developing information and
communications technologies which will enable anyone to access
any legal resource essentially for free, or at very low cost.
There has been a gradual adaptation of computer technology to
automate both law firm "back office" operations,
word-processing, and some front office functions such as case
management and automated litigation support. What is new is that
the accelerated rate of change of developments in information
technology is causing a convergence of these 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 is now 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; hypertext documents that
can reach out into the Internet and up-date themselves
automatically. Powerful searching tools 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. These emerging technologies are
enabled by powerful desk-top communication capabilities that
already make it easy to transfer documents and information at
very fast speeds and at low cost to locations all over the world.
These communication capabilities will soon be enhanced by the
availability of wide-spread video-teleconferencing capabilities
from the desk-top and the ability to receive video programs on a
personal work station as if the computer were a personalized
television set. Increased computing power will enable the
development of new kinds of artificial intelligence programs and
enhanced voice recognition capacities facilitating the creation
of even more complex programs from a desktop microcomputer
without requiring a background in computer programming.
The convergence of these technologies provide the foundation for new legal information services that threaten and challenge the existing configuration of law practice. 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.
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. 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. 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 timekeeper, 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.
In a digital environment, law becomes an enterprise that is
oriented around working with information, storing it, processing,
and communicating it. Information has always been the fundamental
building block that is present and is the focus of attention at
almost every stage of the legal process. As the processing power
of the personal computer continues to increase at an exponential
rate, and access to the Internet becomes wide-spread, the nature
of legal information will be transformed in unexpected ways.
Back to Table of Contents
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. 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.
Legal Profession Restructuring
According to Peter F. Drucker 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.
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:
"Industry and market structures last for many, many years and seem completely stable....Actually, market and industry structures are quite brittle. One small scratch and they disintegrate, often fast....To continue to do business as before is almost a guarantee of disaster and might well condemn a company to extinction."
"Again and again when market or industry structure
changes, the producers or suppliers who are today's industry
leaders will be found neglecting the fastest-growing market
segments. They will cling to practices that are rapidly becoming
dysfunctional and obsolete."
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 this 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
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. Videocasette 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. In Florida, California, and Arizona paralegals are already providing limited document preparation services to the public directly, despite prohibitions against the unauthorized practice of law.
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. Minimize the traditional configuration of lawyer-dominated legal services, and the cost of legal services can be reduced dramatically.
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.
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 Katsch, a professor at the University of Massachusetts who
has thought more about these issues than any other legal scholar,
is one who has a:
"Sensitivity to the value, qualities, and capabilities of
information in electronic form is probably the distinguishing
characteristic of the digital lawyer. Such lawyers will
understand that supplying the right information quickly is more
important than ever before and that both the ability to access
information and expectations about response times are changing.
Such lawyers will be aware that the "library" of
cyberspace, the new location of authority and of authoritative
legal information, can be virtually any computer or any
individual connected to the network. They will recognize that
responding to client needs efficiently requires sharing
information electronically with clients. Such lawyers are likely
to depend heavily on data communications to clients and on a
"network" of colleagues, consultants, acquaintances,
and experts. They will think less in terms of owning or
possessing legal information that than of exploiting links to
legal information that they have in place. These communications
links not only will change relationships between clients and
lawyers but will make lawyers aware that their goal should be to
build communities of knowledge, not storehouses of information.
The core change in the digital lawyer is an understanding of the
value of information in an environment where new tools for
processing and communicating information make adding value to
information and using information to develop new relationships
the central concern of the economic system."
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 the DOS operating system and have already
switched over to 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 Katsch. 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 skills in electronic information retrieval skills; skills in electronic communication; and skills in electronic publishing.
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.
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.
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 cases to a lawyer who does.
Some of these electronic skills can be purchased from non-lawyer
specialists, but the lawyer in charge must know when to use a
particular technology, how to manage the technology, and how to
evaluate the output or results from using the 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, attention computer shows for lawyers, 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. If you don't understand territory, you can't discover the new opportunities to provide legal services that an electronic environment provides.
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 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 excessive fees now required to negotiate through the present legal system.
Numerous studies, however, have documented that there are vast
legal needs that are not being served among low and moderate
income families. Information is a commodity with increasing value
in our society, and therefore, the erection of entry barriers at
the boundaries of law has significant economic consequences.
Emerging information technology can reduce those barriers
enabling people who heretofore have been excluded from the legal
system to access it at a reasonable cost. 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 and use information technology to build more complete models of production and delivery. 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.