The Computer as Lawyer-Saving Device
(This is a loose reconstruction of a talk I gave to the Boston Computer Society Social Impact and Legal Interest Groups on December 5, 1990. Published in the October 1993 newsletter of Clinical Legal Education Section of the Association of American Law Schools.)
Although the lawsuit thrives as a characteristic gesture of modernity, lawyers are not exactly the darlings of popular culture these days.
We read, for instance, about the prosecution in New York of a personal injury law firm that allegedly used shrunken rulers to exaggerate the size of photographed potholes in negligence suits against the City, and maintained a convenient stock of blank doctor’s stationery. (New York Times, November 20, 1990, p. B1.) And lawyers are thoroughly implicated in the vogue of copyright litigation over look-and-feel, software patents, and other nefarious developments that many fear will choke the progress of technology.
The California-based Nolo Press carries a regular column of lawyer jokes. (Have you heard the one about the terrorists who threatened to release one lawyer every hour until their demands were met?) The viciousness of some of these jokes signals a deep resentment about the profession. One wonders whether a new category of lawyer jokes will emerge as these professionals stride into the Information Age. Legal technologist Richard Susskind tells of a British lawyer who made “hard copy” by putting his computer monitor face-down on a Xerox machine.
My main purpose in this talk is to get you thinking about some possible social impacts of computers in the legal field. I chose my title offhandedly when I was first asked to speak, and was relieved to discover a fertile ambiguity in it as I began to put these notes together.
I see a number of distinct senses in which computers might perform “lawyer-saving” functions, corresponding to different meanings of the word “save”. They fall roughly into two groups: those having to do with apparent benefit to the public, and those having to do with apparent benefit to the profession itself.
Saving the Public
Conservation. (Think of water-saving toilets.) You would hardly consider the nearly million American lawyers as representing a scarce commodity. There are almost as many in Chicago alone as in all of Canada. But in relation to the volume of potentially useful legal services, the coverage of present resources is actually quite thin. There is no shortage of need for legal expertise in our complex society. In fact, there is a practically inexhaustible market for reasonably priced, constructive, preventive, and remedial legal services. Making better use of our existing lawyers is one step toward serving that market. Computers can play a supporting role in several different modes of lawyer conservation:
# One mode involves doing without lawyers — saving in the sense of deliverance or liberation. The vision of lawyer-less clients achieving legal self-sufficiency through self-help reflects a Protestant spirit of accessing justice without an intervening priesthood. Electronic forms of information can be interactive and contextualized, thereby transcending the limitations of print-based materials. There has already been a proliferation of do-it-yourself computer systems for drafting wills, contracts, and similar legal instruments.
# A variant on the self-help approach might be called the nurse-midwife model. Lay and para-professional advisors and advocates are finding their effectiveness and scope of operation enhanced by greater utilization of information technology. (They are also facing counter-insurgent action from the organized bar, framing battles in which high minded rhetoric mixes with raw turf emotions.)
# Another approach to lawyer-avoidance is represented by the preventive law movement, which seeks to reduce the incidence of problems needing legal attention in the first place. Once problems do arise, alternative dispute resolution techniques like mediation and arbitration offer more self-empowerment to the parties. Computers can help do “legal health checkups”, serve as negotiation advisors, and anticipate problems in consumer contracts, prenuptial agreements, leases, and other documents.
Saving the Lawyer
Deposit. (Think bank accounts.) A cynical view of how computers may help save lawyers focuses on the new business they may stir up. Software-related intellectual property issues, questions about liability for injuries resulting from software defects, commercial disputes between computer vendors — these are only a few of the areas in which litigation is likely to flourish.
Preservation. (Think pickled peppers.) Lawyers were among the first professions to make active use of computers as devices for storing and searching vast quantities of textual information, but only recently have they begun exploring mechanisms for storing higher forms of legal knowledge. Expert systems and other technologies emerging from artificial intelligence research are making it possible for lawyers to bottle up their “knowledge assets” for future use by themselves or others.
Salvation. (Think soul.) While the legal profession espouses a strong ethos of public service, actual pro bono contributions by lawyers fall far short of what society should reasonably expect. Knowledge-based legal systems can make it easier for lawyers to carry out their professional responsibility to assist those unable to afford legal services and to educate the community about legal matters. We can’t expect lawyers to suddenly become born-again altruists, but computer-based instructional and advisory systems may make their redemption easier.
Rescue. (Think drowning victims.) There are many actual and potential fates from which lawyers might wish to be saved. Tedium and boredom characterize some aspects of all kinds of law practice; some lawyers fear enslavement to mind-numbing routine. Computers offer the promise of achieving a higher percentage of interesting work by distilling out mechanical regularities handleable by machines. The apparently unmanageable complexity and information overload of most areas of practice can yield to technologies that help filter and digest that information. Concerns about malpractice through overspecialization, carelessness, or lack of organization similarly can be addressed through information systems.
The changing profession
Obsolescence or professional extinction (for example, by being priced out of the market) is perhaps the ultimate bad fate lawyers fear — to the extent they concede its possibility. It is sobering to reflect on the historical disappearances of vocations and industries. Quill pen and buggy whip makers probably once felt quite secure in their work. (Interestingly, there’s now a legal expert system shell called Scrivener.) Independent pharmacists have now largely been displaced by chains of franchised drug stores, using computerized prescription systems. Dentists have done such a good job in improving our oral health that they’ve almost put themselves out of business. Many think they would be happy if lawyers followed suit — or faded away entirely, like the state was supposed to do under advanced communism. It doesn’t seem far-fetched to assume that novel information technologies will play a central role in whatever fate the profession will face in the foreseeable future.
Lawyers may have to reconstruct themselves in terms of such core roles as dispute resolution specialists, institutional designers, and human systems architects. “Mere” informational, transactional, and documentary services (as opposed to interactional services such as client counseling and trial advocacy) may eventually be handled by a sufficiently advanced technology. Metalawyering may emerge as a major career path as demand grows for legal information systems specialists and legal knowledge engineers. New delivery systems will need to respond to our changing technical demographics and the growth of paraprofessionalism.
The two “save sets” described above are not necessarily in tension. I personally take a reasonably optimistic view of the possibility of technology delivering us from a zero-sum game in the dialectic of lawyer and consumer. We should be seeing more of the electronic treatise, legal “information refineries,” routine videoconferencing, special- and general-purpose consultative expert systems, document assembly engines, and a robust traffic of legal ideas and information among lawyers and non-lawyers alike over the high speed networks that will be ubiquitous in the latter part of this decade. Properly realized, all of these developments could contribute to substantially better legal services at significantly lower cost to a broader spectrum of clients.
Needless to say, there are problems, challenges, and obstacles in realizing the technological possibilities sketched here. Not least among these are lawyer ignorance and resistance. Work habits and attitudes are hard to change. Even though increasing numbers of lawyers are using computers, a surprising degree of technophobia still reigns in many quarters. To many attorneys, computers are a strange hybrid of manual typewriters and high energy physics: simultaneously beneath their dignity and above their understanding.
Some lawyers disparage computer-based systems as form book practice dressed up in new garb, which should be suppressed at all costs. Others are unwilling to adopt new billing strategies necessary to make such systems economically feasible. Another problem lies in designing quality software — there are not enough good legal software engineers yet in existence. Marketing, delivery, support, and maintenance mechanisms are just now being tested and understood. Some incompetent and unscrupulous vendors roam the land, souring enthusiasm for technology initiatives. Managing the potential liabilities of knowledge-based systems and allocating risks among author, publisher, user, and client is yet another conundrum.
The legal education system has a key role to play in these transitions. Information technology literacy needs to be seen as part of the basic education of a minimally competent lawyer. Law schools should offer advanced courses, special tracks, and post-graduate degrees in legal informatics. They should host and foster research, and weave computer-related subjects into their continuing legal education courses for the bar. On a more theoretical plane, the rigors of attempted knowledge engineering may force the legal academy to confront the cognitive realities of lawyer reasoning, and offer fresh challenges to the competing (yet overlapping) camps of legal realists, critical legal studies folks, feminists, clinicians, post-modernists, and law-and-economics devotees.
Conclusion
Most experts agree that we have just begun to unleash the power of information technology in the legal domain. Technology of course does not directly drive change: it mostly just remaps the landscape of possibilities, the curvature of social space, if you will. Computers offer the possibility of being a deeply humanizing force in law and society. (One of our slogans might be “automation for the sake of de-mechanization.”) But there are counter-tendencies we ignore at our peril.
How long will it take the legal profession to absorb the new technologies? To move beyond automating what is and begin designing genuinely new modes of professional activity? If, as Timothy Leary said, “computers [were] the LSD of the ‘80s,” might they be the LL.Bs of the ‘90s? What will lawyering look like in an age when roving knowbots browse through global information archives? When superconductivity, nanotechnology, and optical- and bio-computing have become commonplace? When cyberpunk cowboy jurists ride herd over virtual legal realities?
Law is going to look a lot different in the next century — to both public and practitioner. Trying to say exactly how is like blowing smoke rings in a wind tunnel. We’ll have to leave a lot of this up to the social seismologists, as they chart the tremors and probable epicenters of these shakeups. But there’s one thing I’m reasonably sure of: in the not-too-distant future more than a few lawyers are going to be echoing the sentiments of John Astor, who, seated at the bar on the Titanic, supposedly quipped “I know I asked for ice, but this is ridiculous.” The lifeboats in that scenario may well be made of silicon. Let’s hope we have enough of them for all of us.
