The Computer as a Lawyer-Saving Device
Technology can be a "lawyer saver" in more than one sense. In the course of rescuing legal professionals from a rolling ocean of information, it also can be a "public saver." Computers perform "lawyer-saving" functions in a number of different senses, corresponding to different meanings of the word "save." The "savings" fall roughly into two groups: first, those primarily benefiting the public, and second, those primarily benefiting the legal profession.
Saving the Public
Conservation. (Think of water-saving toilets.) With nearly a million of them, you would hardly consider the American lawyer a scarce commodity. There are almost as many lawyers in Chicago as in all of Canada. But in proportion to the volume of potentially useful legal services, actual coverage is quite thin in many places. There is a continuing need for legal expertise in our complex society, and the market for reasonably priced, constructive, preventive and remedial legal services is practically inexhaustible. Making better use of our lawyers is one step toward serving that market. Computers can help conserve lawyers and their expertise in several ways.
One way is to replace lawyers - "saving" in the sense of deliverance or liberation. The vision of lawyer-less clients achieving legal self-sufficiency reflects a Protestant spirit of accessing justice without an intervening priesthood. Electronic information can be interactive and context-specific, transcending the limitations of print-based materials. An example is do-it-yourself software for drafting wills, contracts and other legal instruments.
A variation of the self-help approach might be called the nurse-midwife model. Information technology can improve the effectiveness and scope of operation of "lay" and paraprofessional advisers, allowing them to serve as lost-cost providers of routine legal services. (These alternatives face counterinsurgent action from the organized bar, framing battles in which high-minded rhetoric mixes with raw turf emotions. Witness the recent debates on multidisciplinary practices.)
Another way to "save" lawyers is the development of "preventive law." Preventive law seeks to reduce the number of problems needing legal attention by eliminating the source of the problems. When problems do arise, alternative dispute resolution techniques like meditation and arbitration give the parties more self-empowerment. Computers can help clients perform "legal health checkups" and anticipate problems with consumer contracts, prenuptial agreements, leases, and other documents.
Saving the Lawyer
Deposit. (Think bank accounts.) The cynical view of how computers may best help save lawyers is that computers will stir up new business in the form of new subjects to litigate. 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 professionals to make active use of computers as devices for storing and searching vast quantities of textual information, and have also increasingly explored mechanisms for storing higher forms of legal knowledge. Expert systems and other artificial intelligence technologies help lawyers bottle up their "knowledge assets" for future use by themselves or others.
Salvation. (Think soul.) While the profession has a strong ethos of public service, some lawyers' actual pro bono contributions fall far short of what we should expect. Knowledge-based legal systems can help lawyers carry out their professional responsibility to assist those unable to afford legal services and to educate the community about legal matters. Society can't expect lawyers to become overnight altruists, but computer-based instructional and advisory systems may make redemption easier.
Rescue. (Think drowning victims.) There are many professional fates from which lawyers might wish to be saved. Tedium and boredom characterize some aspects of almost every kind of law practice, and some lawyers feel enslaved to mind-numbing routine. Computers offer lawyers a higher percentage of interesting work by handling the mechanical routines. Computer technologies can be used to filter and digest large volumes of complex information, reducing the information overload that can otherwise overwhelm some practice areas. Information systems can also reduce malpractice concerns about overspecialization, carelessness, or disorganization.
The Changing Profession
Professional extinction (by being priced out of the market, for example) is perhaps the ultimate bad fate lawyers fear - to the extent they concede the possibility. It is sobering to reflect on the historical disappearances of vocations and industries. Makers of pen nibs and buggy whips once felt quite secure in their work. Most independent pharmacists of the last generation have been displaced by chains of franchised drugstores using computerized prescription systems. Dentists have done such a good job improving our oral health that they've reduced their business. Many people would be happy if lawyers followed suit, or faded away entirely. Novel information technologies undoubtedly will play a central role in whatever fate the profession faces in the foreseeable future.
Lawyers may have to reinvent themselves in terms of such core roles as dispute resolution specialists, institutional designers, and human system architects. "Mere" informational, transactional and documentary services (as opposed to interactive services like client counseling and trial advocacy) eventually may be handled by a sufficiently advanced technology. "Metalawyering" may emerge as a major career path as demand grows for legal information system specialists and legal knowledge engineers. New delivery systems will need to respond to our changing technical demographics and the growth of paraprofessionals.
The public and professional "save sets" described above are not necessarily in tension. Rather, technology may deliver us from a zero-sum game in the dialectic of lawyer and consumer. It is no longer necessary for the client to benefit at the expense of the lawyer, or vice versa, because computer technology offers "win-win" solutions. We should be seeing more electronic treatises, legal "information refineries," routine videoconferencing, special- and general-purpose consultative expert systems and document assembly engines. The traffic of legal ideas and information among lawyers and nonlawyers will become increasingly robust over high-speed networks. All these developments can contribute to substantially better legal services at significantly lower cost to a broader spectrum of clients.
Needless to say, there are challenges and obstacles in realizing these technological possibilities. Not the least among them are lawyer ignorance and resistance. Work habits and attitudes are hard to change. Even though most lawyers are using computers, 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, to be suppressed at all costs. Others are unwilling to adopt new billing strategies necessary to make such systems economically feasible. Managing the potential liabilities of knowledge-based systems and allocating risks among author, publisher, user and client is another problem.
The legal education system has a key role to play in these transitions. Information technology literacy needs to be part of the basic education of a minimally competent lawyer. Law schools should offer more advanced courses, special tracks and post-graduate degrees in legal information technology. They should host research and weave more computer-related subjects into their continuing legal education courses. The rigors of knowledge engineering can supply fresh challenges to academicians in today's many competing schools of legal thought.
Most experts agree we have just begun to unleash the power of information technology in the legal domain. Technology, of course, does not directly drive change, but it remaps the landscape of possibilities - the "curvature of social space," if you will. Ironically, computers can be a deeply humanizing force in law and society. (One of our slogans might be "automation for the sake of de-mechanization"). But we must let the technology serve us, and not vice versa, because there are countertendencies that we ignore at our peril. If we are able to move beyond automating what is and begin designing genuinely new methods of professional practice, then law practice is going to look a lot different in the next century - to both the public and practitioner. How? We'll have to leave much of the answer to the social seismologists as they chart the tremors and probable epicenters of our shake-ups. But one thing is reasonably sure: In the not-too-distant future, more than a few lawyers will echo the sentiments of John Jacob Astor, who, seated at the bar on the Titanic, reputedly quipped, "I know I asked for ice, but this is ridiculous." The lifeboats in our own scenario may well be made of silicon. Let's hope we know how to use them.
Marc Lauritsen (email@example.com), a Massachusetts lawyer and educator, is president of Capstone Practice Systems, Inc. Capstone specializes in document assembly and other knowledge systems for professionals. He can be reached at (978) 456-3424.