Contents
1 Introduction
Scope
Outline
2 Pressures
Pressures on Law Firms
Pressures on Courts
3 Current IT
IT in Legal Practices
ø How great has the impact of IT been in practices?
ø For what purposes has IT been mostly applied in practices?
ø What are the most topical IT developments in practices?
IT, Courts and Judges
4 IT Strategy considerations for law firms
Business-like Approach
Client Focus
Project Management and Implementation considerations
Cost of IT: Budgeting
5 Small Firm IT
Basic Systems and Software
Other systems
Additional small firm strategy considerations
Security
6 Emerging and (possible) Future IT
XML
AI & Law research
7 Conclusions
IT Strategy and Small firms
Courts and Judges
1 – Introduction
Scope
The jurisdictional scope of this work will be confined predominantly to the
Outline
By way of introduction, this dissertation will firstly outline the pressures being felt by solicitors’ firms (particularly smaller ones) and courts in the
Following that, general issues of IT strategy for law firms are considered, and then the attention turns specifically to the smaller firms, as most legal IT writings and conferences concentrate on the needs of the larger firms, even though they are better placed to develop their strategies themselves.[1]
The final substantive part of the dissertation will consider two aspects of IT which promise to have great impact on the legal world. The first is a specific technology, XML; as the agreed successor to HTML, it promises (we are told) great change for the web, and therefore most of us. The second is the field of artificial intelligence and law, which has been promising to have an impact on the legal world for decades.
2 – Pressures
Pressures on Law Firms
A major threat to the business of the lawyer is seen in the accountancy firms, at both the lower and the higher ends of the market. On the lower end Susskind comments, “I find it entirely foreseeable that the accountants could dominate the on-line legal services market, by which I mean both the commoditisation of appropriate existing legal work as well as the realisation of the latent legal market. In other words, I see great scope for them to identify and commoditised the great swathes of routine and repetitive work that are currently handled by lawyers in the traditional manner; and I see the potential also for them to create new legal markets.” [2] At the higher end he believes, “it is precisely by adopting and exploring online legal services that the global accounting firms may come to dominate the international legal marketplace.”[3]
Moreover, most commentators view any impediments to accountants entering the legal services market as transitory. For example Halliwell notes, “perhaps there is some short term glimmer of hope in the ECJ’s recent upholding of the legality of bans on multi-disciplinary practices, [on the other hand,] the Law Society … with a dutiful nod to the Government and the OFT, which is investigating restrictive practices in the legal profession, said it welcomed multi-disciplinary partnerships”.[4]
Additionally, some believe that small firms are increasingly likely to be absorbed by larger ones because they cannot keep up with IT costs, “the number of small law firms in the
Apart from the accountants and larger law firms, banks (providing probate services), estate agents/building societies (providing conveyancing services) and insurance companies (providing related legal assistance) are all encroaching on the smaller firms’ business. Such large organisations can exploit technology to service large numbers of clients at low unit cost to themselves, and at a price with which the smaller practice cannot compete.
Specific examples of this are already being observed. For example, Halliwell, noting that property work is one of the mainstays of most small to medium-sized firms, reports that, “conveyancing … in
Halliwell reports similar commoditisation of other high street practice areas. (i.e. Personal injury claims, probate and trust, will making and divorce, with the work either being undertaken by commercial firms, or, via on-line services.)[6]
These pressures on firms (particularly the small ones) combine with others emanating from government initiatives relating to technology, specifically the Internet. Thus regarding electronic conveyancing, and specifically referring to the explanatory notes accompanying the Land Registration Bill 2002, Halliwell comments that there is an emerging suspicion that the technology required will be very expensive indeed, and only realistically within the budget of mega-firms or financial institutions. This, he claims, will hand over the whole process of land transfer to major financial players.[7]
To cap it all, if a firm is not already investigating the use of IT to cope with the above pressures there is also pressure from clients to use IT. For example, Wall reports on his research into the use of information technology by lawyers in legal practice that, “most importantly, the research revealed an optimistic overall picture of the legal practices and the professions embracing IT with enthusiasm, although further investigation would show that much of this enthusiasm was clearly driven by corporate clients’ increasing expectations that their lawyers should have IT systems in place”.[8] To which one might add that, increasingly, private clients who know what technology can offer, for example from their dealings with banks, will come to expect the same sort of services from a lawyer as they receive in other walks of life (eg They will expect to be able to get an on-line account of the state of their conveyancing transaction.)
Pressures on Courts
Pressure on the courts comes from the public, politicians, etc. to remedy such things as backlogs in dealing with cases, inefficiencies in administration, inconsistency in sentencing, miscarriages of justices.[9] The problems facing the courts were recently well illustrated by a report that the Criminal Records Bureau, which is suffering from a backlog of 100,000 cases, has had to take on 100 extra staff.[10]
3 – Current IT
There are many basic IT applications which are employed in courts and legal practices, just as they are in any business. Such applications will not be described or discussed here precisely because they are standard and well understood, even if they have been adapted or developed in a particular way to meet the particular requirements of the legal profession. A good overview of many of these can be found in
IT in Legal Practices
IT is often advocated as a mechanism to make a law firm more effective. Given the many pressures (just outlined) which now face a firm, the ways in which IT can be employed to that end will now be discussed. This will involve looking at three issues: how great has the impact of IT been in practices, for what purposes has IT been mostly applied, what are the most topical IT developments.
ø How great has the impact of IT been in practices?
By way of introduction,
Christian, writing in 1998, suggests the following reasons for the limited impact of IT on legal practice, at least up to the late nineties. Suppliers proposed inappropriate solutions, and those that were appropriate required unrealistic commitment from lawyers in terms of training and implementation times to make them work. Consultants did not listen to lawyers to understand what they really wanted. The diversity of the profession makes it an unattractive one to design systems for, because producing a one-size-fits-all application is not possible (e.g. because of the different jurisdictions within the UK; because of the divide between different areas of legal work, such as criminal law, family law, commercial law, etc; because of the needs of different sizes of practice).[13]
However, more recently, Wall’s research implies a greater actual and potential impact, as regards certain types of IT, than
Moreover, the results of a survey carried out recently by Mori on behalf of LexisNexis Butterworth’s Tolley report both growing recognition among the legal world that IT can help them tackle the challenges they face, and an already high level of use of the Internet for work-related purposes, particularly legal research.[15] Additionally one should note that e-mail, one of the standard applications (noted above) which are essential for any modern office, is increasingly being recognised as such in legal practices, even by the smaller firms. Thus whereas a Society for Computers and Law survey reported in 1999 found that over half the small firms surveyed did not use email at all, Wolverhampton Business School’s survey, reported this year, found that 91% of small firms had external email facilities.[16]
ø For what purposes has IT been mostly applied in practices?
‘Traditional’ Law Back-office Technologies
For many years, the following law firm back-office systems have, for many practices, improved their efficiency. Their function has been to streamline the administration of the firm, and automate procedural legal work, which (along with client care) it has been recognised comprise much more of what a solicitors engages in than substantive law.[17]
Case Management Systems
These constitute one of the most widely used legal software applications in solicitors’ offices.[18] They can be based upon several models but the core functions include providing checklists of issues to consider, prompts for actions to meet project deadlines, and milestones against which to measure progress.[19] They can include document assembly to prepare letters and court documents, act as a database of client information, and collect accounting and billing information automatically.[20]
Practice Management Systems
Since the late 1990s, many more fully integrated practice and case management systems have surfaced but the core practice management function is to allow the basic client accounts, and time recording, to be analysed so that practice managers (or equivalent) have the opportunity to produce financial reports and management information. In this way it can be decided if a given work activity, an individual fee-earner, a department, or a client is profitable or not, allowing for appropriate action to be taken.[21]
Workflow Systems
Workflows are processes, based on case management technology, which aim to automate the processing of a particular class of legal work (e.g. uninsured loss recovery, motor insurance claims, debt collection) by combining the technological prompting, task scheduling, checklists etc. noted above, with the routing of different elements of the work to members of a team.
The great benefits claimed for workflows are, firstly, that by assembling them from the direct experience of the brightest fee earners, the firm captures those individuals’ know-how and best practice in permanent form (useful if the person in question leaves). Secondly, although the resulting workflows have to be used by competent legal staff (paralegals), they cut radically the amount of time required for supervision, and thus make it possible to improve the ratio of partner-to-fee-earner-to-legal-assistant. The result, it is claimed, is a more consistent and higher quality product for clients, and higher profit margins for the firm.[22]
Christian notes that this ‘commoditisation’ means that it is possible for a firm to handle large volumes of work, reduce the unit cost but still make a profit, and still maintain management and quality-control.[23] However, he also strikes a note of caution, claiming that workflows only work in practices which are willing to reengineer the way the work was previously done to suit the needs of the automated process.[24]
While all authors concur on the importance of the above back-office systems for the modern legal practice,[25] they also emphasise that these technologies are merely assistance or tools for the people in the practices.[26]
Leith in particular, while advocating the use of such technologies, emphasises the limits of what they can do: “If technology is to help withstand ever-increasing competition and help deal with clients who are less amenable to client management techniques then the typical legal practice will have to become a more sophisticated business environment – particularly in the use of IT and practice management. Of course it may well be – and I speak as a proponent of IT in legal practice – that what can be offered by technology will never really be sufficient to substantially improve a practice which is weak in client management/service skills. That is, that IT will not be a panacea which will replace poor business skills.”[27]
Technology intended to directly assist the fee-earner
Moving on from the back-office, document retrieval and litigation support systems are advocated as able to assist the fee-earner in his substantive work.
Document (or Information) Retrieval Systems
Document retrieval is an IT application which it has for many years been suggested could benefit the practitioner in his professional research work. However, it has been observed that, while such systems may be used by specialists in large firms, and maybe barristers/advocates (as these practitioners are the most likely to engage in fundamental legal research), such systems fail to address what a solicitor in the majority of firms really does in his daily work, and consequently little use is made of them (in the UK at least).[28] Moreover, the systems have been criticised as technically lacking in their ability to retrieve the information that a lawyer might be looking for.
While the fundamental nature of what the majority of solicitors do in their day-to-day work is unlikely to have changed much since such observations were made, it is interesting to note the recently reported concern expressed by the Law Society and Bar Council regarding the inadequate level of research skills possessed by graduates,[29] as this presumably reflects a desire, or need, expressed within the profession itself, for more research to be conducted within practices. It will be interesting to see if the convenience of web access, plus the financial appeal, of the free public sector sources of legal documents (discussed shortly) currently being developed, will, in time, lead to the conclusion that more research of primary legal materials would have occurred in the past had cost and inaccessibility not been deterrents.
As regards the types of document retrieval system used, for many years CD-ROMs have been, and still are in some firms, the main technology. However, as Widdison notes, their capacity is so limited and updating so infrequent that they have never managed truly to substitute for a full-scale online retrieval service.[30] So more use nowadays is made of online full text document retrieval systems, to which attention will now turn.
Private Sector Full Text Legal Database Services
In 1994 Zeleznikow and Hunter observed, “Unfortunately, current legal databases such as..Westlaw and Lexis… generally retrieve data on keywords. This is inadequate to provide intelligent legal advice.”[31] In 1995 Katsh noted that, as an alternative to keyword retrieval, natural language searching was being offered by these commercial operators.
These two searching methods are still available today. However, the first technique, using keywords or phrases, combined by boolean connectors and proximity operators, (and enhanced by meta-characters, truncation etc.) remains the primary searching mechanism, although it is no more adequate now than it was in 1994. The natural language searching facilities e.g. Lexis’ Freestyle or Westlaw’s Natural Language have proved disappointing. This can be seen from the comments of lawyers themselves, e.g. “To call them worthless would be excessive, but not excessively excessive”,[32] as well as the companies involved, e.g. West Group: “many would agree that there is much room for improvement in current natural language systems”.[33]
That natural language searching is derided is hardly surprising, as natural language understanding/recognition remains as elusive as ever, and all that “natural language” searching does is the following. Identify in the natural language query (perhaps via a synonym parser) the terms that have been used to (manually) index the full-text document database to be searched, then retrieve from that resource those documents containing the terms. Part of the retrieval process involves applying some form of statistical ranking (which is supposed to be a reflection of ‘relevance’), based on such criteria as number of occurrences of a term in a document, the proximity of occurrences, whether the term appears within an important part of the document e.g. headnote, etc.[34] Thus the same operations are performed as when keywords/phrases and boolean operators are used and the perennial problems of ‘recall’ and ‘precision’ remain (i.e. failing to retrieve many relevant documents and retrieving many irrelevant ones).
Conceptual searching, the idea of being able to identify and retrieve all occurrences of a particular idea or ‘concept’, no matter what words have (or have not) been used to express it, has been the subject of AI research for decades, and remains as remote as ever in commercial document retrieval systems. It requires the ability to identify synonyms, distinguished homonyms, understand the context, etc. all of which are tasks which continue to elude natural language processing researchers. The remoteness of conceptual searching in commercially available systems can be seen from the recent comments of researchers from West Group; these comments being to the effect that automatically identifying concepts from full text databases is currently technical infeasible, and using human editors impractical.[35]
Currently, the closest facility to concept searching is provided by those sites which contain (human-made) categories of documents, as the topic or subject headings of a category might correspond to a particular concept a lawyer has in mind.[36]
Other retrieval approaches, such as intelligent interactive interfaces, whereby the user is guided through a process in which he rearticulates his query into terms which the software has used to index the information (thereby enabling it to retrieve the information he actually needs), remain research projects because of the huge manual effort required in developing them.[37]
Public Sector Full Text Legal Database Services
In recent years, freely available full text legal database services such as BAILII and AustLII have arrived.[38] They offer search facilities which include the boolean techniques used by the private sector, but also human compiled catalogues (for example based on topic or type of source), and additionally browsing, via hypertext links in the HTML documents which comprise their databases. The hyperlinks allow immediate access to footnotes, cited cases, or other cross-referenced material in a way which would not be possible with conventional text resources which compel linear progression forward or back through a document, rather than lateral movement out of it and back again to the point of departure.
The prospects for all future material loaded into these databases being almost immediately made part of this ‘cross document’ mode of searching/browsing, are greatly enhanced by the AustLII team’s work on automatic markup technology (i.e. software which takes the HTML material generated from raw document texts and automatically inserts links from references within that material to the appropriate statute sections or cited cases).[39] Obviously these alternative ways of examining documents are being adopted by the likes of Westlaw and Lexis as they migrate their systems onto the web.[40]
Public accessibility to the law
One particular legal benefit, which it is often suggested that the Internet can bring the ordinary citizen, is access to and consequently awareness of, what the law is on any matter relevant to him. This argument is particularly compelling in the light of the government’s de facto relaxation of legal restrictions on access to primary resources, and the development of public sector systems, such as BAILII, with their free access to an ever-increasing amount of such material. Such developments appear to address the (legal) paradox noted by the likes of Susskind, and reiterated by Widdison,[41] that everyone is expected to abide by the law, and presumed to know the law, but that inadequate promulgation has meant that, in reality, no one other than lawyers has had the opportunity to know it.
However, such an apparent public benefit is predicated on at least three contingencies. Firstly, everybody having access to the Internet, regarding which, in spite of government pronouncements and initiatives, there is still a significant proportion of the UK population which is not (for all practical purposes) online.[42] Secondly, the ability of the ordinary citizen to find (in the sense of knowing what he should be looking for), let alone understand, what is relevant to him. On the issue of understanding Widdison notes that, “what is actually made available free to the public is often limited in practical value. Raw cases, lacking editorial input in the form of e.g. catchwords, headnotes, lists of cases cited etc. are indigestible for lawyers and non-lawyers alike.”[43] Thirdly, the available information always being accurate and up-to-date. Widdison continues, “Statutes and regulations in their earliest forms, without even incorporation of subsequent amendments and repeals, or at least appropriate annotation, can be positively misleading.”[44]
In view of these factors the ‘freeing of the law’ which the instigators of BAILII saw as its raison d’etre may prove to be of most use to the legally knowledgeable user, and in particular the small (to medium size) firm which had previously considered prohibitive the cost of subscriptions to the private, value added providers, such as Lexis and Westlaw. On this last point Lord Justice Brooke recently noted the appreciation of BAILII by small law firms, as well as law centres, which do not have the resources to equip themselves with large libraries.[45] Thus, BAILII might well constitute an opportunity for small firms to ‘re-intermediate’ themselves (as it is advocated such firms should do, to counter the threats posed to them by their ‘disintermediation’ which is resulting from the increased competition the Internet has introduced), by adding value (their expertise, their interpretative and application skills) to the newly freely available raw materials of the law.
Funding of BAILII
BAILII is undoubtedly a tremendous idea and achievement, but some are questioning its long-term viability because of concerns regarding its financing. Widdison seems fairly optimistic, suggesting that, “perhaps something can be made of the ‘stake-holder’ funding adopted so successfully by AustLII. This would involve persuading relevant institutions such as legislatures, courts and professional bodies to contribute significant sums towards the running costs for the good not only of their own members, but also of users in general. If all else fails, it may be that public sector services will be forced to consider charging users albeit on an ‘at cost ‘ basis.”[46]
However, Nunn-Price, contemplating the fate of previous free legal information services, is less sanguine: “There have been schemes for providing legal information services, free at the terminal, for the
Downside of on-line legal databases
Before on-line information systems, the limited capacity of paper law reports dictated that firm policy decisions had to be made about which cases to publish and which not. Now there is no physical necessity to restrict the number of cases included in such systems, and despite the best efforts of courts to discourage this development, the distinction between reported and unreported cases is becoming eroded to the point where it may soon cease to be meaningful.[48]
The problem this causes is that, as Lord Justice Brooke recently observed, “very often lawyers can’t recognise a principle of law when they see one [and consequently judges] are getting steadily more and more overloaded with citations of cases which frequently don’t help them in the task they have got to do, but which just add to the paper they have to read”.[49]
Litigation Support Systems
While document retrieval system aim to improve legal research, litigation support systems are also built to enhance retrieval, but in this instance it is of case documents when managing a case or presenting it in court. The goal of efficient retrieval from the document load accompanying a case is pursued by employing one or more of the following three techniques to prepare a litigation support database.
– Compiling a computerised index of documents in the case, based on ‘object’ features (e.g. date of document, author, recipient) and/or ‘subjective’ features (e.g. that the document is privileged or prejudicial to the client’s case).The former can be done by a junior member of staff or external agency. The latter requires a senior lawyer to review the entire document load.
– Scanning documents so that possibly important things, like handwriting or annotations, are preserved.
– Building a full text retrieval system of a portion of the documents. (Such systems will have the retrieval limitations observed in the above discussion of document retrieval systems.)
The combination of techniques chosen, and the documents to which they are applied, will depend on such factors as the perceived significance of documents, the costs of applying techniques, the time required. The benefit sought from litigation support systems is the ability to quickly retrieve the required piece of information at the right time.
Litigation support systems are widely used by the larger law firms to manage the enormous volumes of documents now encountered in major litigation, and within particular industries e.g. construction. However, although Lord Woolf recommended that lawyers embrace more extensively litigation support systems,[50] the fact remains that considerable financial resources are needed to enable setting up the support database,[51] which militates against litigation support systems’ greater uptake, which, in the UK, is low.[52]
Additionally, even when successfully deployed, the extent of utility of a litigation support system is open to debate. For example, although the objective information about a document should remain static throughout the life of the database, the relevance of more subjective factors will change as the case progresses. Thus, much of the initial work could prove useless as the trial progresses, and it will not be practical to reassess, re-index etc. [53]
ø What are the most topical IT developments in practices?
Four aspects of a firm in which IT is increasingly being applied, or explored, will be examined: creating documents, knowledge management, marketing the firm, selling legal services.
Creating Documents
Creating documents, whether routine (procedural) letters to clients, or expert opinions for internal consumption, is a fundamental function of the lawyer. Real improvements in the efficient performance of this task can be seen in the recent surge in implementations of voice recognition and digital dictation technology, as well as the increasing use of document assembly products.
Voice (or Speech) Recognition
The arguments for voice recognition technology are that it builds on lawyers’ existing method of creating documents (i.e. dictation), and that several efficiency gains result; for example, less initial manual text entry by secretaries, time saved when correcting secretaries’ drafts and the consequent possibility of redeploying or reducing secretarial support. However, Christian, writing in 1998, noted that considerable effort in ‘training’ systems was needed to get acceptable levels of speech and accuracy (hours if not days) and also that substantial PC hardware was required.[54] Things have changed drastically since then. Acceptable levels of recognition can be achieved after only about half an hour of training, and the hardware required is that which comes as standard in most entry-level machines nowadays. Correcting and revision will still be necessary, but considerable reduction of manual input can be achieved. Consequently, the legal IT press regularly notes lawyers adopting speech recognition technology.[55]
In addition to the benefits to a firm, the advantages to the individual user of voice recognition technology can be gleaned from the observations of a judge, Lord Macfadyen. He appreciates the benefit of seeing his thoughts expressed in text almost as soon as he has articulated them, and the convenience, compared with traditional dictation to tape, of being able to review instantaneously ideas he had expressed a few seconds ago, rather than having to rewind a tape to hear them.[56]
Digital Dictation
While there are increasing examples of voice recognition technology being rolled out across firms, equally, perhaps more so, better utilisation of the secretarial pool is being realised through the roll-out of digital dictation technology. Basically, this involves a lawyer dictating in the traditional manner, but the digitised input (speech file) is sent to servers, and then routed to secretarial resources wherever they might be. For a big firm this means being able to take advantage of internal secretarial ‘quiet time’, which might occur unpredictably, in different locations (geographically, or across departments or sections) and at different times, and would in the past have meant wasted secretarial capacity i.e. money.[57] For a smaller firm it could mean sending the digital speech files to an outsourced transcription service, which would then route within its resources, in the manner just outlined.[58]
Document Assembly Systems
Such systems construct customised documents from a template (previously created by an expert), by guiding the user through a series of questions, the responses to which either cause blocks of text to be removed from or added to the document being created, or cause information to be solicited from the user and inserted into the document. In this way considerable time is saved in the process of producing documents. [59] Such document assembly (or modelling) can be particularly useful when combined with case management systems.
Knowledge Management
In recent years the goal of being able to access “the right amount, of the right type of knowledge, at the right time”, has been the focus of many projects in legal firms, as well as other industries.[60] In spite of the ongoing reports of the failure of many of these projects,[61] knowledge management continues to be the focus of much attention in the legal world. As
One quote from Terrett encapsulates nicely the importance (large) firms attach to knowledge management, and their frustration at knowledge management initiatives to date. “Managing knowledge in a law firm is a key problem, arguably the great unsolved problem from an IT perspective.”[63] Further evidence of the elusiveness of successful knowledge management initiatives comes from Susskind, when he says of himself, “I often refer to the successful development of internal knowledge systems as the Holy Grail of legal technology.”[64]
The subject of these initiatives, the ‘knowledge’ (or ‘useful information’) available to a law firm, is of two types. Documented – in paper or digital form, and either internal (e.g. counsel opinions, court transcripts, conference papers), or external (e.g. government regulations, Companies House files). Undocumented – i.e. the insights, expertise, and know-how etc. inside the heads of fee-earners and other personnel. The challenges of knowledge management are to encapsulate that knowledge in a system which can then be accessed to provide appropriate information for the specific needs of a lawyer at a specific time. For example, client information accessible by name or past cases, or legal opinions categorised according to problem definition.[65]
Technical Problems
As regards the documentary sources, Susskind describes the current situation, in which our ability to acquire and preserve information vastly exceeds our ability to make effective use of it, as an example of ‘the technology lag’.[66] He believes that retrieval technology will soon catch up with the storage technology and overcome this lag, but looking at the current state of information retrieval, as outlined above (and in particular the continuing inability of IT to understand natural language, or appreciate context), this might take a while yet.
In the meantime, as regards documents, a firm might attempt to manually identify what is useful (digitising it if necessary) and attempt to organise the resulting information in a manner which allows each document to be more easily accessed, for example by a computerised key-word index. In other words a firm might build a Document Management System (DMS). Such a system should enable quicker identification and retrieval of a relevant item and (unlike paper) allow for multiple concurrent users.
However, though itself a massive manual and technical task, such a DMS is only part of a knowledge management solution. Studies have shown that managers get two-thirds of their information and knowledge from face-to-face meetings or phone conversations; only one-third comes from documents.[67] Encapsulating such undocumented knowledge, along with that which is not even articulated verbally, is the main challenge in building a knowledge management system.
Cultural Problems: Eliciting Knowledge
As with the intranets on which they are usually built, the main problem is that of getting people to contribute to, and make use of, knowledge management systems. As Terrett observes, with respect to intranets, “development is probably 25% technology and 75% cultural change.”[68]
The concept of sharing knowledge, and the team being more important than the individual, runs counter to the instincts within most law firms, where the competitive atmosphere and desire to succeed and make partner, makes one hoard any piece of information that might produce an edge over one’s co-workers. Additionally, there is the view of fee-earners that “any time spent sharing knowledge is time not spent billing”,[69] and here again, the issue of promotion is apparent, in that in most firms the more you bill, the greater your prospects.[70]
Promoting sharing
There seem to be few solutions to the cultural resistance to sharing. Terrett notes the success of the McKinsey strategy whereby contributing to and making use of the firm knowledgebase is part of the annual assessment of employees and awarded accordingly. No law firm, he claims, has followed that line. In addition to the culture problem per se, one might suggest that it is compounded by technological problems, in that whatever the culture, unless it is technically easy to share knowledge, it simply will not happen. However, this raises the technically challenging issue of integrating systems, such that one click, from within any application, allows information to be added to and shared across the knowledgebase, which should itself the accessible from any application.
Other problems
A number of papers have appeared over the last few years, often expressing different views over exactly what knowledge management should entail, as well as different ways of going about it (with consequent duplication of effort and failure to learn from others’ experiences). This last point indicates the absence of an agreed methodology for building knowledge management systems and this was highlighted in a recent research paper by Oskamp. She is investigating whether the insights gained from years of AI and law research, specifically related to building knowledge-based
systems, can be used in the development of a methodology for creating knowledge management systems.[71]
There is also no agreed method of measuring return on investment (ROI) on knowledge management initiatives; in fact there is very little attempt to even measure it at all.[72] Consequently, although seminars abound in which consultants and top firms advocate the benefits of their particular approach to such things as “Matter Centric Portals and Knowledge Management Systems”,[73] there exists no objective way to assess the utility of what they propose.
Marketing and more
The utility of document retrieval systems, litigation support systems and knowledge management projects, other than for large to mid-sized firms (and even for them some would argue) is questionable. What most commentators agree on, however, is that a firm of any size can greatly benefit from having a web site.
As the main outwardly facing vehicle IT can offer, a web presence makes a firm available to clients (to a greater or lesser extent, depending on the nature of the site, as will be discussed) out with ‘normal’ working hours and thereby better able to compete with its 24-hour availability competitors (whether other law firms or new entrants). This alone constitutes an argument for developing a site.
Over the last few years, a number of authors have produced advice on how best a law firm can use a web site. For example, see Terrett’s section on ‘Web Site Development Strategies’,[74] or Gerald Newman’s book.[75] As a result, a number of labels have developed, to denote the different levels of sophistication of law firm web sites, although these categorisations tend to overlap with each other. This section and the following consequently seek to set out the principle ways in which a site can benefit a firm.
‘Brochureware’ sites
These constitute the most basic use of a web site, as a marketing tool to generate more ‘traditional’ (i.e. off-line) business. They contain such fundamental marketing information as contact details, summary of services on offer, etc.; the sort of information that would traditionally appear in printed promotional material. However, unlike such traditional printed material the most recent version of the information being advertised is available to the public as soon as the firm updates the site, and the costs and time involved in a mass remailing are avoided. The more such sites contain additional material, of use to prospective clients, the more they fall into the next category.
Content Rich sites
These are an extension of the basic site to include free, useful materials, such as on-line articles and e-mail newsletters, in the hope that visitors will appreciate the firm’s worth from those free materials and instruct it (i.e. become fee-paying clients). To do this successfully the content must of course be up-to-date, relevant to the client base and, critically, written from the client’s perspective. Achieving all this, Reevy stresses, is not easy, and is often done badly, by the firm’s lawyers themselves. Writing the content, he believes, should be outsourced to professional copywriters because doing it in-house may be prohibitively expensive in lost chargeable time and, moreover, few fee-earners are good copywriters.[76]
Other ‘content rich’ features might be interactive facilities, such as on-line quotations, or a fee calculator; or there might be pre-instruction questionnaires, to save the time of both user (prospective client) and lawyer.[77]
It is worth emphasising that on-line articles and e-mail newsletters really do appear to present a firm of any size with an opportunity ‘re-intermediate’ itself by addressing, for the benefit of its (prospective) clients, the problem of information overload. (i.e. A firm can use its legal expertise to extract, from the masses information available, items which are useful, and encapsulate them in a digestible form.)
Work-In-Progress Reports
A web site can be used to provide work progress status reports (i.e. where are we now with a particular matter, and what is due to happen next; what is the financial situation etc.) thereby both addressing one of the most common complaints about lawyers (i.e. that they do not keep their clients well enough informed of developments) and enabling the lawyer to get on with fee earning.[78] In this way the site is used to enhance traditional (off-line) legal service rather than (as is the aim with the previous two types of site) generate new business.
Document Depositories
This would be part of a web site available externally only to an authorised client where he could go to download documents specifically related to his matter. It could be separate from, or additional to, the aforementioned progress reporting facility.[79]
Shared Workspace: Virtual Case (or Deal) Room
This is argued as being of particular use in the corporate or commercial world, and involves a more extensive part of a firm’s site, or even a separate virtual site, where the lawyer and authorised client(s) can share, review, comment on and amend, authoritative copies of documents, rather than faxing back and forth amendments, or having to try to schedule face-to-face meetings.
Each of these last three deployments of a web site, which enhance the traditional legal service, would normally be implemented via an extranet, i.e. (part of) a web site which is not available to the whole public but only selected external bodies, under secure conditions. Such an external party might be serviced through a “client portal”, i.e. a home page on the firm’s site set up for a particular client, which has been tailored to provide access to the specific information and services to which that client is subscribed.
Selling legal services
This section presents a more ambitious use of the firm web site than those examined in the previous section. It involves not simply using the site to attract and complement traditional legal work, but actually selling and delivering legal services on-line, possibly without any off-line interaction between the solicitor and the client.
Commoditised Legal Services
Commoditisation seems to have two slightly different interpretations.
One idea is that certain areas of legal practice, which are standard, repetitive and procedural in nature, can be automated through IT into processes which require little user input. Additionally, the input that is necessary can be supplied by someone less skilled than a solicitor who has traditionally done the job which has been so automated. The common example given is that of debt collection systems, which enable large volumes of cases to be processed efficiently and cost effectively by paralegal staff with relatively little supervision and/or intervention by lawyers.[80] This type of commoditisation was discussed earlier under the heading Workflows.
Another interpretation views “commoditisation” as the creation of a build-once sell-many-times package. The idea being that you take an area of your legal expertise, which you know does not require much modification from one client to another when delivering it, and package it for delivery on-line in a form that can be dispatched to many people without further lawyer intervention; thereby freeing you to engage in other fee-earning work while it is earning money.
Both types of commoditisation can be viewed as a threat or as an opportunity for a lawyer. On the one hand, it is argued that commoditisation means that a lawyer can get through more work, so that even if the end price to the client of a legal service is reduced, the firm still benefits from the greater productivity realised. On the other hand, it is argued that those lawyers who will not themselves introduce commoditisation (or who are maybe unable to), will lose out to competitors who do.
Of the two types of commoditisation the focus here is on the second, (i.e. ‘selling your expertise on-line directly’).
One of the best-known examples of on-line delivery of legal services in the
Although Blue Flag operates at the premium end of the legal market,[82] the model has been widely followed by both other firms, such as Kaye Tesler (see below) and alternative legal service providers such as Epoch Software (now Epoq Group) providing the Desktop Lawyer service (of downloadable lawyer-drafted documents).[83] Consequently there are now almost 200 sites where one can buy online legal services, varying from simple ‘holiday from hell’ complaints forms costing a couple of pounds, through to complex international financial services compliance advice costing tens of thousands of pounds. Most services offer some form of backup from lawyers (typically to help members of the public who are confused by the legal process) and a growing number now also offer payment facilities via secure online credit card transactions.[84]
One of the first small firms to move into the area of online legal service delivery was Kaye Tesler & Co,[85] with its on-line will production service. Users complete an on-line form with the information needed to produce a valid will, they can choose to pay online by credit card (or phone or by cheque) and the will is sent to them by e-mail, fax, or post. Thus, the whole operation can be done online. Kaye Tesler also provides on-line questionnaires which can be used instead of an initial interview with a solicitor in areas such as conveyancing, tenancy agreements, unfair dismissal etc.
The arguments for on-line commoditised legal products are as follows. Firstly, convenience to clients, who can access the information they need at any time of the day and night without the inconvenience and delay associated with the traditional legal process. This 24/7 availability of services is what people are coming to expect in the modern world. Secondly, the benefits to the firm, in that although there will be a large initial investment in fee-earner time spent producing the product (i.e. a financial cost), once the service has been set up the fee-earner is freed to concentrate on higher paying consultancy style legal work (conducted in the traditional way), while the (possibly budget priced) commoditised service can be delivered automatically on-line. Moreover, whereas a fee-earner can only deal with one client at a time in the conventional manner, the fact that once the legal product has been created it can be sold many times means an increase in both the productivity and the profitability of the firm.[86]
However, whatever the potential benefits to a firm of running an online legal services site, voices are increasingly being raised expressing doubt about the feasibility of new entrants securing a place in the market. For example, Reevy claims that, “The main areas where the web is likely to be effective have already been covered (and covered very well) on a national basis by firms like CompactLaw . going into a market where there is established quality competition who have already travelled up the ‘learning curve’ seems unlikely to generate a worthwhile return.”[87]
Given this view of Reevy, plus Christian’s observation that almost 200 firms are now offering on-line legal services, a firm must consider to what extent the market is saturated for one of its existing services that it might offer, and/or assess how easy it will be for it to find and develop expertise in a niche/specialism for which there is actually a client base. Offering the same service as someone else on the web will probably not generate much business when you cannot rely on the physical proximity of potential clients which often helps to generate business for the high street shop, or practice.[88]
Latent Legal Market
A particular aspect of commoditised legal service delivery which is still quite controversial is the latent legal market. This is Susskind’s idea that online legal services might unlock a latent demand for legal services. The theory is that there are those in the community who need access to legal services but, for whatever reason, (e.g. cost, inconvenience, inaccessibility, etc.) are currently reluctant or unable to use the facilities of traditional suppliers of legal services, such as solicitors in their offices. This is the latent legal market and the suggestion is that if legal services were delivered in a different format, such as via the internet, the latent legal market would use them.[89]
Many commentators, such as
While Christian and
However, whether or not there is a latent legal market beyond the existing markets, the fact is that those firms which deal in areas where commoditised products definitely can be successfully marketed may suffer rather than benefit from that fact. This is because clients who previously would have placed their work directly with a solicitor’s practice may instead use an on-line service and, as long as they feel they can trust it, not be concerned about whether it is provided by a traditional firm or not.[93]
There is certainly recognition within the legal profession of the threat posed to traditional (high street) solicitors by alternative providers delivering commoditised products (whether small companies like Epoch before, or large organisations like insurance companies now), and of the limited scope for those firms themselves to commoditise and sell online. This can be seen from the remarks of the Law Society President: “Commoditised work by itself is unlikely to provide many of us with a bright future unless we can find profitable ways of handling it …. we will have to face the fact that some of the things we now do, and the way we do them, will not remain viable.”[94]
However, there is also evidence of resignation from those who take the threat seriously and wish to do something about it that there is little in fact that they can do. For example Halliwell observes that the problem for lawyers at the high street end of legal practice is that their skills are very
geographically and jurisdictionally limited. He concedes, speaking from personal tentative attempts to use the web as an enlarged market place, that there are some opportunities for smaller firms, but believes that whether they can ever counteract the commoditisation by others of much of the existing work is very doubtful.[95]
IT, Courts and Judges
Moving on from the opportunities for legal practices to use IT to improve their effectiveness, attention now turns to IT initiatives in the justice system. These are intended to address the perceived failings noted at the start of this work, by improving efficiency, and the access and services available to the public.
Case Management and Electronic Files
The report Modernising the Civil and Family Courts, of May 2002,[96] emphasises the importance of effective case management systems for civil, criminal, and family cases in
To this end judges are already largely in charge of managing their own caseloads. They have broadly welcomed this, and have been given case management software to timetable their caseloads, produce daily reminders, project manage the load etc. As regards case management for the overall administration of the court system, Modernising the Civil and Family Courts indicates that this is very much an ongoing endeavour. Currently the courts are flooded with paperwork and obvious inefficiencies such as manual re-entry of summonses, dockets and pleadings, for different systems, are pervasive. The goal is to have unique electronic files for cases, accessible across all systems and from all the locations; such files will be supported by a case management system, which will automate many of the processes currently requiring staff intervention. [98]
The Courts and other parts of the Justice System
The courts link with, and provide information to and receive it from, many agencies e.g. police, prison, social work, probation. Achieving more efficient courts will require the electronic integration of all these bodies.
The seriousness of the current inefficiencies across the justice system is evident from recent pronouncements of Lord Justice Brooke, acknowledging that miscarriages of justice and delays had resulted from lousy IT systems, and calling for an investment of over £500 million for the Criminal Justice IT infrastructure. Moreover, some indication of the scale and nature of the problems across the criminal justice system has also been given by others. For example, “The personal details of a suspect can be entered in systems up to 18 times from arrest to going to court”, says The Home Office Policing Bureaucracy Taskforce. [99]
Recently, the desired financial resources were released,[100] but, given the recent failures in large-scale government initiatives, such as the ongoing fiasco regarding provision of software for Libra (the Lord Chancellor’s Department project to modernise the IT infrastructure of the magistrates’ courts in
Within the Courtroom
Inside the courtroom, successful IT innovations have included Computer Aided Transcript (CAT) systems such as LiveNotes. In such systems the stenographer’s input is both stored for later printing and displayed in real-time to the participants.
Judges’ reactions to this have been particularly positive, noting how CAT has aided them in their work. For example, Lord Macfadyen, speaking of his experience at the Lockerbie trial, expressed appreciation of the facility to annotate the text, as it appeared, and that the transcription reduced the need for him to take his own handwritten notes, commenting that this allowed him to concentrate more on the trial and events in the courtroom.[103] Also, he and other judges appreciate having a digitally searchable, legible, CD transcript of the proceedings to leave the court with at the end of the day, and they comment that the entire process of the trial is accelerated. Negative reactions have, however, come from both plaintiff and defence teams. For example, concerns that the judge is distracted by the display, or that the transcription might be overanalysed.
Other courtroom IT, for example equipping certain courts for electronic presentation of evidence (EPE),[104] as used in some high-profile cases such as Lockerbie and the Bloody Sunday Inquiry, is also part of the considerations in the court modernising programmes. However, this raises questions of fairness such as the financial ability of one side to take advantage of such technology whereas the other cannot, and questions of admissibility of evidence (i.e. whether such data can be relied on, particularly given the ease with which digital technology can be used to deceive).[105]
Of course, equipping courts for CAT and/or EPE raises serious questions of financing and cost effectiveness for those charged with modernising the courts. Consequently, such IT has to date been confined to high profile and/or complex trials.
Judicial Decision Support Systems: Sentencing Information Systems
Direct assistance to judges with their exercise of a core function of their substantive work, the exercise of judicial discretion, has been the subject of academic research and pilot projects for a number of years. To date the most successful system seems to be that in actual use by the judges of the High Court of Justiciary in
For example, the appreciation by the development team, through discussions with the judges, of how judges view a case ‘as a whole’ when considering sentencing, and the consequent attempt by the team to take a ‘schematic-holistic’ approach when developing descriptors for retrieval of information about past sentences in similar circumstances.[106] Also, the lessons learnt from the failure of systems such as that in
Judicial Communication
Other, more straightforward, IT initiatives for judges introduced in recent years, and particularly welcomed by them, have included the introduction of secure email and conferencing facilities. These enable them to communicate directly with their colleagues, and thereby keep abreast of developments and counteract the isolation inherent in the nature of their job. Again, Lord Macfadyen’s comments provide direct confirmation of this appreciation.
Video links
Further evidence of judicial willingness to embrace IT can be seen in the use of video links.
It is well known that video conferencing for the practitioner of large firms is increasingly used. Purpose-built suites allow meetings to take place which save participants time, and the expense of travel. More interesting, however, is the use which has been made by the courts. For example, Judge Valerie Pearlman used video conferencing to continue her summing up in a major fraud trial for two days from a hospital bed after breaking her leg. The estimated cost to the taxpayer had a retrial been necessary was £2.5 million.[108] Or the use made of victim and/or witness testimony by video link, for example saving children the trauma of court proceedings, or the cost of transporting an expert witness from abroad. Additionally, there is the frequent use of video links in the case of remand prisoners, where time and money is saved by interviewing prison inmates in prison from the court, rather than transporting them to courts, and, as is usually the case, back again.[109]
The Modernising the Civil and Family Courts report indicates an intention to increase the use of this technology, noting that video conferencing suites have now being installed at various sites around
However, returning to the crucial issue of trial interviews by video links, there exist many objections to video testimony, such as the visual demeanour of the witness not being properly conveyed.[110] Thus, if the overriding public interest is not that of saving money, or protecting an individual from the courtroom environment, but ensuring that a thorough cross examination has taken place, then that may only be achievable by the physical presence of a person in court. Consequently greater use of video communication must proceed with caution.
Kiosk Assistance
Within the actual court building, court kiosks to provide information to the public also feature in pilot projects reported in Modernising the Civil and Family Courts. They are seen as a method for improving court efficiency, as well as improving public access to justice. Like an ordinary web site, they allow information to be easily kept up-to-date, reduce printing costs, and lessen the administrative overhead of giving basic advice and information. They can also be available to the public when court personnel are not. The success of this concept can be seen in the pioneering electronic kiosks in
More advanced Advisory Systems
In the US, Branting has pioneered the use of web based advisory systems as a mechanism to address the growing burden on the legal system which has resulted from the increasing number of pro se litigants. It is claimed that such advisory systems can lessen the support that pro se litigants require from the court, by helping them both to understand the legal remedies available to them and to satisfy the substantive and procedural requirements for those remedies. One such system, the Protection Order Advisory, is currently in use throughout
In
Given Lord Justice Brooke’s recent comment about the challenges posed by litigants in person,[114] and the recent bleak report from the Law Society regarding the predicted future lack of provision of legal aid services,[115] it is to be hoped that the UK government will observe the progress of such work, as a means to make more effective use of scarce resources. Specific reference to these US and Australian projects does not appear in any government publication but the desire to use IT to better serve the increasing numbers who do not have adequate access to legal services does.
On-Line Services
As reported in Modernising the Civil and Family Courts, the government has already successfully piloted 24/7 delivery of court services with its now operational Money Claim On-Line service,[116] which enables on-line filing and settlement of a claim, includes on-line reporting, and for which the fees can be collected electronically by debit or credit card. More systems of this nature, which is considerably more efficient than the offline claim procedure and the time consuming court visits which it entails, are promised.
Text and web alerts to witnesses
Other court service improvements, using proven technology, aim to avoid the inconvenience to potential witnesses and police of having to attend court all day only to find that the trial has been delayed, or that they are not to be called. Such improvements include, for example, monitoring the progress of a trial and updating a web site (to which only interested parties have access) with the trial’s current status, or, sending a text message to a prospective witness once it is clear that their attendance will indeed be required. Such simple schemes should reduce trial delays (helping trials to be dealt with more speedily), and thus make more effective use of judicial time.
Modernising the Civil and Family Courts reports a successful pilot project, XHIBIT, in the Crown Courts, which has demonstrated these benefits. In the context of criminal cases the government has recently set itself targets with respect to these facilities, making online case monitoring for victims of crime one of the 2005 targets in the Justice for All white paper.
On-Line Dispute Resolution and Cyber Courts
The Access to Justice reports,[117] and consultation and ‘vision’ papers, such as civil.justice and civil.justice.2000,[118] have emphasised the desire to avoid litigation, and ask such fundamental questions as “is court a place or a service”.
Resolving disputes, without going to courts has traditionally meant employing an alternative dispute resolution (ADR) mechanism, and in recent years a number of on-line versions of ADR have arisen.[119] Although they might properly be regarded as having a minimal impact on the caseload handled by courts in the
As noted by Hornle, the principal beneficiaries so far of on-line dispute resolution (ODR) are people pursuing small claims, where the supplier is in a different (distant) geographical location and jurisdiction. About 30 ODR services exist globally, principally providing a mediation service. The obvious problem with such ODR services is that being a non-binding procedure ODR relies on the suppliers’ desire to maintain good customer relations for any awards to be implemented. Therefore it may not be effective in one-off consumer disputes.[121]
As regards the issue of whether a court is a service or place, and conscious of the international competition to attract law business, it has been noted that
4 – IT Strategy considerations for law firms
Having examined the current legal applications of IT, and touched upon possible future developments, this chapter will attempt to identify the considerations that should shape the formation of any law firm’s IT strategy, but with the smaller firm being particularly in mind. In this context, and in the light of the fact that the foregoing discussion has signalled some dissension amongst commentators as regards the future impact of IT on law firm practices, the strategic advice available will be examined and consensus identified where possible.
Business-like Approach
In his examination of IT for legal practices,
Referring specifically to the smaller practice,
This businesslike, long-term view, is something which most commentators agree law firms have in the past failed to adopt; perhaps because it was not necessary. They further concur that the pressures on firms now, as outlined earlier, mean that the past approach is no longer a viable option for any firm which wishes to survive today, let alone to thrive. Consequently, a key message for a law firm must be to view the firm as a business, and develop the IT strategy in the context of that business .
Client Focus
The core message of Christian’s 1998 book is that law firms should shift the focus of their attention from internal IT systems (which is where, he asserts, they have been focusing) and concentrate on outward looking, client facing systems, following the example of competitors like banks, insurance companies and estate agents.[130] The importance of a client facing strategy is certainly something which Susskind also emphasises, and explores in some detail, through his Legal Grid and Client Service Chain models.
The Legal Grid,[131] conceived (amongst other things) as a tool to aid strategic planning, presents a continuum (illustrated as a horizontal axis), from technology (or data), through information, to knowledge. Around this Susskind suggests IT based services or systems, each of whose focus is more towards one end of the spectrum or the other, which may benefit the firm either in its internal work (in which case they appear below the horizontal line) or in its external dealings with clients (above that line).
Susskind’s idea is that this provides a graphical, strategic map, using which a firm can plan IT investment. A vertical line bifurcates the horizontal axis producing four quadrants in which Susskind categorises types of IT which he believes can benefit the firm. The bottom left quadrant contains the back-office systems (practice management systems, marketing databases, etc.) which most commentators agree are essential to the survival of most firms. The upper left quadrant contains “client relationship systems” (e.g. matter status and financial reporting systems). Susskind’s view is that such client facing services (top left), plus the basic internal systems (bottom left) will, over the next few years, come to be expected of any firm that hopes to survive.
Susskind believes that the only possibility of a competitive edge for firms will come through exploiting the types of IT system to the right of the vertical axis. i.e. Through the bottom right quadrant of internal knowledge systems, and the top right quadrant of on-line legal services. The bottom right quadrant comprises such things as know-how databases, and precedent and template libraries. However, the difficulties of successful knowledge management projects have already been discussed, and Susskind himself acknowledges that successful implementation of internal knowledge management in law firms “seems to elude the overwhelming majority of firms.”[132] As already noted, recent reports confirm this continues to be the case.[133] The top right quadrant contains services to make a firm’s knowledge and expertise directly available to the client. It is this quadrant of on-line knowledge client services that Susskind believes any firm which wishes to succeed in future will have to be operating in. High-profile examples of this concept, at both the ‘high’ and ‘consumer’ end of the legal services market, have already been noted. But so too has the question of how much room there is in this area for new entrants.
Through his Client Service Chain model,[134] Susskind argues that the existing reactive, one-to-one method of supplying legal services will not suffice in the future for firms other than those dealing in ‘high-end’ specialised advice. Rather, the firms that will flourish will be those that (proactively) anticipate client needs, address issues before they become problems, and suggest ways in which the law could be employed to make things better, in situations in which the client does not even realise it could be of service. Susskind believes that only through the employment of IT can this enhanced level of client service be achieved.
However, whereas Susskind’s two models emphasise the vital importance for law firms of providing new types of client service in the future, and the fundamental role of IT in achieving them,
Reevy offers a view which to some extent seems to reconcile those of
In other words, by implementing IT which will better support traditional client-relationship management (
Thus client focus is a theme common to all commentators, the divergence of views regards the ways in which IT can serve that focus.
Project Management and Implementation considerations
Whatever IT projects and systems are decided on they should be implemented following strong project management principles (e.g. milestones and timetables should be set and regular formal meetings should be held), so that adequate resources (time, equipment, money, etc.) can be budgeted for, and revised if necessary.[139] The Law Society provides much freely downloadable information in this area, including detailed guidance specifically on IT strategy, procurement and implementation.[140]
Regarding the ‘nuts and bolts’ of implementation,
Cost of IT: Budgeting
Additionally, it is hard to determine ROI for IT expenditure and so justify it to accountants, practice heads etc. For example, it is difficult to attribute the gain of a particular new piece of work, or improvement in efficiency, or greater consistency of work, specifically to the fact that a particular piece of hardware or software was acquired. Many firms do appreciate the IT investment, once they see the increased productivity which has resulted (i.e. some time after the investment has been made). They also come to appreciate other more intangible benefits (equally hard to relate directly to better profits), such as contracting and maintaining good quality staff, or keeping up with and putting pressure on competitors.[143] However, these factors are not the easiest with which to convince those controlling the financial resources that there is a need to invest in IT. Thus the commitment of the top management to the IT vision (whatever it is) is essential for an IT strategy to succeed.
Of course budgeting should also involve consideration of ways to reduce the impact of large, ‘one-off’, periodic IT expenditures, by investigating ways of spreading outlays. For example, there are all sorts of financing facilities for hardware and software now available. Also, if possessing one’s own software and hardware is not considered essential, the possibility of outsourcing the provision of various services (e.g. backup, site hosting, secure e-mail), and even renting the software applications themselves, on a per-use basis, from an Application Service Provides (ASP), should be considered.[144] Such approaches could reduce expense by obviating the need to have much of the requisite hardware, software, and IT skills support, in-house. However these approaches also necessitate consideration of many other factors: such as the reliability of the connection to the service provider, and its financial and technical robustness, particularly in the light of the fact that a number of ASPs have recently collapsed.[145]
5 – Small Firm IT
In the light of all the foregoing, attention now turns specifically to the smaller firm, and the particular IT systems and issues it should consider. Towards the later part of this chapter a number of cost saving approaches to small firm IT will be featured, as studies continue to note that small firms believe funding is a major obstacle to their ability to develop IT and thereby increase their profitability.[146]
Basic Systems and Software
General software
As regards the standard office IT noted in the opening paragraph of chapter 3, there is little disagreement that it should form the basis of any modern firm that wishes to remain competitive.
Law practice back-office systems
All commentators seem to agree that for small firms, handling routine, procedural type work, case management systems and workflows can produce efficiency benefits, while maintaining consistent quality of output. As
Consensus also seems to exist as regards the benefits of practice management systems. They aid analysis of the performance of a firm (and its different components) and thereby assist planning of its future directions based on the strengths and weaknesses identified.
Help with choosing suppliers of law office systems can be gleaned from the publications of professional bodies, such as the Law Society’s annual Software Solutions Guide, primarily intended for small-to-mid sized solicitors practices.[150]
Web site
Christian observes that of over 10,000
Christian also notes that of the firms with a web site over 80% of the sites are simply brochureware. Thus once a firm is on the web with a simple site, it should consider how to enhance that site, to give itself an advantage over that 80%.
Of the enhancements to a basic site discussed earlier, the possible difficulties for a small firm wishing to exploit the on-line services market have already been noted. Additionally, the utility of such things as deal rooms has been called into question, even by the big firms who have pioneered them. Thus Reevy reports the comments made by Kevin Doolan of Eversheds that deal rooms “basically didn’t happen”, to which Reevy adds “if they didn’t work for them [a big firm], they won’t for you”. The reason, he suggests (echoing the observations Leith has made on the nature of the majority of lawyers’ work), is that “for many firms the basic provision of legal service involves a lot of ‘hand holding’, which is very difficult indeed to do through a medium not involving direct verbal (and preferably visual) contact “.[153]
However, on-line progress reporting is something which people want, is relatively easy to set up (simply requiring a secure area of a site to which reports can be posted) and will immediately benefit both lawyer (who is freed of interruptions from clients calling for update information), and clients themselves (who can access the information to fit in with their timescales and agenda). Moreover it addresses one of the most frequently raised grievances about the legal profession (confirmed in research conducted by
Thus once a firm has its basic marketing site in place, the best first enhancement would seem to be to better support the existing, traditional business through on-line reporting. The next step should be to explore the ‘content rich’ approach, as it is more likely than the basic brochure site to successfully attract new business.
Site Design and Presentation
At the general level of web site design and presentation, the site itself must be professionally produced and follow all accepted good practice to ensure it is user-friendly, easily navigable, quickly downloadable etc. Various generic sources for ensuring this exist. For example, free internet resources, such as Jacob Nielsen’s email bulletins and web site.[155] There are also primers specifically oriented for law firms.[156]
Legal obligations and guidelines must also be complied with, for example, regarding data protection and privacy,[157] and disabled access.[158]
Of course it might be preferable to entrust the design to one of the many companies that claims to design sites specifically for law firms.[159] As ever, when selecting a third party supplier (when all seem to offer the same), samples of work should be obtained and reference sites should be requested (and followed up). Having obtained some reference sites it might also be of some value to see where those sites appear in the league tables of bodies which claim to rank the popularity of law firm sites.[160]
Whatever route one chooses to web site design, it is vital to try to get an ‘unbiased third party’ assessment of the site (both during development and on an ongoing basis once implemented), to ensure the site is something which will attract new business and that clients will want to come back to. (Friends, colleagues, commercial third party audits, or even existing clients, can be used to this end).
Speech Recognition software
Even back in 1998 Christian noted that, in spite of his reservations regarding speech technology at that time, lawyers who could not afford to employ secretaries, such as sole practitioners or new firms just starting business, had a clear incentive (and probably the time) to make speech recognition systems work for them. Given the advances that have been made since that time (noted earlier), the argument for using speech recognition must be even more compelling now in the case of the small law firm. Particularly given the low cost of such products (under £100 for a standard version, for example, of the Dragon product) and the easy installation.
Other systems
As has been noted, those commentators who are sceptical regarding the utility of more sophisticated legal IT for the average small firm comment that, apart from the procedural nature of the work undertaken (with regard to which the impact of information technology has been discussed), the other main focus of lawyers’ daily work life (apart from personal dealings with other lawyers) relates to keeping the customer happy.[161] In this context, it is worth noting that over the last year the IT industry perception of the ‘must have’ application has moved on from knowledge management to customer, or in the legal world ‘client’, relationship management (CRM) systems. (i.e. Systems in which all relevant information about customers can be stored, cross-referenced, and instantly available, so that a better service can be provided to them.)
Of the approaches we have already looked at, some view CRM as a subset of knowledge management for which special software is needed. Certainly, for large companies, there are many software houses with dedicated CRM software to sell (e.g. Siebel, SAP). Moreover there are increasing numbers of suppliers with products aimed specifically at the legal market. However, as with knowledge management projects, there have been more reports of failed CRM projects than successes.
Others regards CRM information (e.g. contact details, client interests, etc) as essentially marketing information and, as noted earlier, a marketing database is universally agreed to be useful for any business. For a small firm therefore, the conclusion must be, that, as outlined earlier, rather than invest in any additional software, continue to concentrate on the human side of client relations, but maximise the benefit to be gained from existing systems in support of that function
Additional small firm strategy considerations
On-Line Services
The potentially limited scope for small firms in this sphere has already been noted. However possibilities should of course be explored. As a codicil to the whole issue of how small firms should respond to the threats to their business, posed by others delivering commoditised services online, it is worth noting that joint ventures and collaborations with other bodies are another avenue advocated by Susskind.[162] However, the examples he gives are of medium-sized firms doing this, and one wonders whether even the accountancy firms would be interested in aligning themselves with independent small firms. The examples to date, certainly in
Web Resources
A small firm should take maximum advantage of the free resources which are available, e.g. the research facilities such as the law-specific search engine LawCrawler,[163] and the law specific full text sites such as BAILII. As noted earlier, these resources might provide such firms with access to material which it would not have been financially feasible for them to have obtained before, and present the opportunity to be more competitive with the larger firms who can afford access to the private sector law database services.
Additionally, there are various cost savings opportunities available to small practices over the web. For example, there are companies which can help a firm control disbursements, do the payroll more cheaply than it would cost to do it in-house, and there are firms offering inexpensive, high-quality, online training.[164]
Outsourcing
A small firm, with limited technical and/or financial resources, might wish to contract in IT support, and/or outsource some (or most) of its IT requirements. Some of the advantages, and possible drawbacks, of this approach were considered when discussing the cost of IT. If the outsourcing approach was taken, then all the security issues (see later) one would need to address in the context of in-house IT, would have to be applied to the external provider.
However, some firms are simply not happy with the IT, in which the firm’s ‘intellectual assets’ reside, not being physically in-house. Thus one needs to consider other ways of reducing the cost of a firm’s IT.
Microsoft or Open Source
Although there has been little reaction from the legal community to the new Microsoft licensing scheme,[165] in spite of the outcry from the IT industry in general regarding the increased financial burden this will impose, small firms should consider non-Microsoft software, particularly ‘free’ open source products, especially if it is desired to keep the IT in-house but cost is critical. The issue should be assessed in two contexts: servers and desktops machines.
At the server end, open source software for generic services such as web servers is more secure, more robust, faster, less resource intensive, requires cheaper hardware, etc than the equivalent Microsoft product. However, there is a perceived need for greater technical know-how to install and run open source products. Thus, the level of service offered by the reseller of open source software, e.g. Red Hat Linux, should be carefully evaluated if one feels technical know-how could be a problem. Alternatively, a firm might consider the cost/benefit of self-installing a Microsoft web server, which might prove unstable and require the constant applying of security patches, versus the expense of contracting a ‘techie’ (who can bypass the open source reseller) to set up an open source server, and provide the minimal supervision it requires.
At the desktop end, and for non generic server applications, the dependency of most law specific software on the Microsoft operating system would make it inadvisable, at present, to move to other operating systems, unless a supplier could guarantee no problems. However, non-Microsoft standard desktop applications, such as Sun’s StarOffice, run on the Microsoft operating system and are far cheaper than, and (on the whole) compatible with, Microsoft’s Office product, and so merit consideration.[166] The main issue could again prove to be a ‘cultural’ one; convincing users that it is worth getting used to the slightly different ‘look and feel’ of such products, and that some thing which is open source can be as good as the Microsoft product they are used to. It is cultural resistance that Sun is seeking to counteract by changing StarOffice from a free product to one which you pay for (albeit very little compared to the Microsoft product) in return for ongoing support in its use. By making this change Sun hopes that StarOffice will be more acceptable in the corporate arena where there seems to be a reluctance to embrace something which is free and unsupported. The same thinking is behind the existence of the Linux resellers, where the free core code is slightly embellished (by the likes of Red Hat), support is provided, and a license fee is charged.
It is worth noting that there have been high-profile announcements of organisation switching to open source products, and that the UK government recently announced its intention to consider open source products as alternatives to Microsoft (as other governments have already done).[167] If such moves filter through to software writers in general, and eventually to those writing legal applications, open source might in time become a truly viable option across the legal office.
Remote Working
More radical approaches to cost saving in a firm might be for one or more lawyers to work in a ‘virtual’ office, from home or some other low rent (i.e. non high street) location. As well as saving office space costs this could also better suit certain lawyers’ lifestyles (e.g. family commitments).
However Christian is cautious regarding such things as remote working, noting that there are concerns about just how compatible it is with maintaining regular contact with clients, and that a lot of people simply do not thrive in a working from home environment, where the disciplines and rituals of office life are absent. He believes that most lawyers really do need to interact with other lawyers (in a social way not possible through computers). Additionally, he observes that the ‘quality of life’ issue is often worse, rather than better, as a result of remote working because in addition to losing the benefits of social interaction, people do not benefit from any clear separation of work life and domestic life and, due to a feeling of ‘guilt’, often work far longer hours than they would if in an office.[168]
Security
Security has been left to the end of this chapter as it should be considered in the light of, and indeed applied to, all the IT elements that have been examined in the dissertation up to this point. Specific issues of security relevant to law firms (as well as many other entities) are continually being brought to our attention. For example, the inherent insecurity of wireless networks,[169] which have been part of the IT infrastructure upgrades of many large firms recently, or the importance of regular backups, contingency planning and disaster recovery procedures.
However, a number of general security observations, made by acknowledged IT security experts, such as Bruce Schneier,[170] should always be remembered when developing and implementing an IT strategy, as they are as relevant to the legal world as any other (and, like any other, continue to have insufficient attention paid to them by law firms). For example, nothing can ever be completely secure; you cannot ‘achieve’ security. Given that fact one must assess such things as: in what areas would the most harm result if damage occurred, and the likelihood of such damage occurring, and then prioritise one’s security efforts accordingly.
The damages to protect against can of course be characterised more as natural (e.g. fire, flood, power loss etc.), or human in origin. The human types may be regarded as unintentional e.g. failing to log off; deliberate but nonmalicious e.g. giving your password out on the telephone; or deliberate and malicious e.g. cracking, viruses etc. While the first two human types are obviously most likely to result from staff failings, security reports and experts are continually reminding us that, contrary to popular conception, most damage of the deliberately malicious type also emanates from people within the organisation, rather than, for example, external hackers.
To address all these potential types of damage, a well thought out and clearly articulated security policy, communicated to all employees, is essential; as is ongoing review of it and monitoring of its implementation (as it is easy to lapse back into bad habits e.g. passwords left on post-its). Thus, in the ongoing effort to maximise the security of a firm’s IT, the technology itself (for example, PKI and secure email, firewalls, UPSs, VPNs, digital signatures, etc) plays a minimal part. As ever the people are the most important element, and for that reason the security procedures they are required to follow under the firm’s security policy must be known to them, and periodically reiterated, and routinely tested, so that a ‘culture of security’ permeates the firm.[171]
In addition to the need for full commitment of all concerned to a strong security policy, the other overriding lesson from the security professionals is not to consider IT security in isolation from other types of security e.g. physical. For example, it is all very well having a fully patched, password protected server, to protect from remote attacks, if the server room is not locked and the supervisor is logged in at the console.
Finally, when specific IT expenditure for security purposes is required, as noted earlier with regard to IT expenditure generally, there can be resistance from those controlling the budgets. Moreover, as an investment in security simply ensures that things continue to work as they should, it tends not to produce the same appreciation of the need for good security as does the damage caused by a breach if the investment has not been made. Consequently, the need to continually upgrade IT security even though things are perceived to be ‘running fine’ and considerable investment has already been made, can be a hard case to sell. Thus, with IT security as with IT in general, the top people in the firm must be convinced of the need for it and, in particular, of the truth of the maxim that, “security is a process, not a product”.
6 – Emerging and (possible) Future IT
XML
Given that the web is one thing that most commentators agree is important for a firm (even if there is disagreement as to how firms should, or can, make best use of a firm web site) significant developments in relation to it should be considered, particularly as it has been suggested that XML, the proposed ‘new language’ of the web, will have significant implications for how legal business is conducted.
Although HTML was conceived as a document description language (DDL), it has been used simply as a document formatting language. Conscious of this, and the limited number of tags in HTML, the WWW consortium has agreed upon a new DDL, i.e. extensible markup language (XML). Using XML organisations which wish to collaborate can create a markup language appropriate to their needs, the tags of which can describe the content of the data in documents, rather than just the format.
Thus, it is argued, if legal documents were encoded in such a language, whose tags included descriptors such as ‘client’, ‘counsel’, ‘argument’, ‘ fact’, etc., searching for relevant information would be greatly facilitated. Such encoding would seem to constitute a step towards pre-categorisation of materials, which would facilitate better information retrieval (and, some would argue, bring closer automatic conceptual retrieval).
Existing web browsers would not be able to interpret the new tags, so XML documents would need to be accompanied with a Document Type Definition, detailing how the tags should be interpreted. However, no doubt future browsers will accommodate XML, should it indeed prove to be the way forward.
Aside from improving retrieval of information, the other great advantage advocated for XML is that it would automate the sharing and transferring of documents between applications. Thus, for example, if the relevant applications were XML-aware, and the documents coded in XML, filing documents with the court would no longer mean identifying particular items in a firm’s database, and then pinpointing relevant sections within those items, followed by manually keying in of the relevant material into the court systems. Rather the necessary items would be automatically extracted from the firm’s system(s), reorganised and merged with elements of other documents as necessary, and the resulting, properly presented documents filed automatically (i.e. electronically) with the court.
As Terrett says, [172]
Problems and issues
Obviously a standard ‘legal XML’ has to be agreed, or at least a standard for interoperability between different legal XMLs, for the above envisaged benefits to be realised. As yet no such standard language has been agreed, although different proposals are being developed.[173] However, even if a standard is agreed, and it was agreed to encode all newly digitised documents in the new language, there would be the issue of recoding existing digital material. Also, much rewriting of applications to make them XML-aware would be necessary.
AI & Law research
Information Retrieval AI research
Information retrieval has been one area of AI and law research; observations on its current state were made earlier in this dissertation.
Expert System AI research
As is well known, despite decades of research activity, the impact of expert systems on the work of the majority of lawyers has been minimal. Susskind attributes rule-based expert systems (the only type which has had some practical impact in the field of law) not being widely available in the marketplace to the following factors. The lack of suitably skilled knowledge engineers and domain experts willing to commit their time. The absence of an appropriate methodology for evaluating such system. The latter is something that Zeleznikow has recently noted an intention to address.[174] How the skills’ shortage can be addressed is not clear.
Production Rules systems
Technically simple rule-based systems have, as noted, had some commercial success. For example, diagnostic and planning expert systems have been created in the field of taxation and the SoftLaw Corporation has developed systems with tens of thousands of rules for the Australian government.[176]
Moreover, according to Susskind’s categorisation of the 6 types of system that can be classified as expert systems,[177] document assembly systems, commercially epitomised by the HotDocs and RapiDocs products,[178] constitute irrefutable evidence of expert systems in use in the consumer market. While at the higher end of the market the likes of Linklater’s Blue Flag service also uses rule-based document assembly techniques. Thus there certainly is use of rule-based expert systems throughout the legal world, but the extent of the technology’s use, and the sophistication of the tasks performed, are far more limited than what was once predicted.
Ongoing, Fundamental, AI and Law research
AI techniques more sophisticated than production rules have so far proved to be limited to research projects. For example, case based reasoning, which seemed a big advance in the early Nineties, is not commercially exploitable because of the huge manual effort required to identify and index concepts for case based reasoning systems.[179] (This is the same hurdle that more sophisticated IR systems face.) Consequently, throughout the Nineties and up to the present, the limitations of previous AI and law approaches were noted, and much research became more fundamentally than practically orientated.
A number of new researchers devoted considerable energy to investigating what might have seemed obvious to a practising lawyer (whether judge, barrister/advocate, solicitor) that reasoning in law is an inherently human exercise, intertwined with, and inseparable from the social, political and economic context in which it is undertaken, and which continually affects it.[180] The reason advanced for undertaking such research has been an attempt to articulate an overall model of legal reasoning set in the above noted context. Such a model is deemed necessary, on the one hand, purely in order to better understand how the law operates, and on the other, for the purpose of identifying where it might be possible to develop practical legal support systems.
Some of these researchers and others, believing more expressive language is needed to model the entities, actions, their inter-relations, etc. in the legal domain, have focused on, and continue to do so, the (rather thankless, some might say hopeless) task of attempting to develop ontologies, or conceptualisations, of the legal domain.[181]
Additionally, there is the logic school of researchers, interested in understanding the nature of legal reasoning, and whether it can be formalised, and for whom development of practical applications is of very minor interest. After reviewing the research emanating from this school one has to conclude that, even amongst the advocates of the logic approach themselves, there is more dissension and criticism than agreement on the way forward.[182] This is hardly surprising, given the observation noted above, i.e. that the practice of law is an essentially human process.
Other ongoing fundamental research concerns dealing with uncertainty in law, where the main focus continues to be on Bayesian inference and where, basically, there has been little progress.[183]
Promising work
From the point of view of practical systems (i.e. those of real use to lawyers and/or the public), and consistent with the broadly agreed goal of workers in the field of legal expert systems (i.e. that of making scarce legal expertise and knowledge more widely available and easily accessible,[184]) the current work of Zeleznikow and Branting, already discussed in the context of the courts, is undoubtedly the most inspiring. Apart from what they could offer at a societal level (i.e. improved public access to justice), Zeleznikow’s work is interesting, from a technical point of view, as it employs technology that goes beyond simple production rules i.e. neural networks. This in turn makes the work interesting at the level of legal theory, i.e. from the perspective of the ‘contribution to jurisprudence’ that many developers of expert systems, or ‘decision support systems’, point to as one justification for their work. What is jurisprudentially interesting is that Zeleznikow claims that the use of neural networks allows the accommodation, at least to some extent, of theories other than positivism; specifically legal realism.[185]
Both Zeleznikow’s and Branting’s work seem particularly relevant to the UK in the light of the government’s vision, outlined in consultation papers such as civil.justice, of how IT can be employed to radically improve the availability of legal services for the majority of the population. For example, providing online legal guidance systems accessible to nonlawyers through the next generation of televisions.[186]
7 – Conclusions
Some of the pressures currently being felt in the legal world have been outlined and, within solicitors’ firms and courts, the application of IT to improve efficiency and thereby help contend with those pressures has been examined. Areas of controversy regarding what the IT future holds for law firms, and what they can do to seize the opportunities and ward of the threats which some claim that future presents, have been discussed. An attempt has been made to determine a level of consensus among commentators such that specific advice can be offered to a small firm developing an IT strategy. Finally, a specific technology which could have a profound affect on future legal processes has been reviewed, and the current state of research in AI and law has been surveyed, particularly noting that which might have practical utility.
IT Strategy and Small firms
Reprising and condensing what has been laid out above, it is possible to divine sufficient consensus of views to offer the following concise suggestion of how to approach IT in a legal practice. The IT strategy must be integrally bound in with the overall business strategy of a firm, and developed in that context,[187] with a clear appreciation of the changing legal landscape (which must be informed by the writings of the leading commentators on it), and with an overriding client focus.
As regards specific IT applications for small firms, the basic IT systems essential for any modern office must be in place first; thereafter specific applications for the legal office, regarding which there is broad agreement could be of benefit, have been identified, as has the possibility of making better use of the basic IT rather than engaging in additional expenditure. Beyond that, the issue of what IT initiatives to invest in becomes a question of one’s particular view of what lies ahead, and how it will affect what one does.
If one subscribes to Susskind’s vision, then one must be conscious of what he identifies as one of his running themes in Transforming the Law and also central to the ideas presented in The Future of Law i.e. knowledge management, and in particular his belief that, “on-line legal guidance derived from the knowledge of practising lawyers, delivered over the Internet, will come to be the dominant source of legal assistance in the future”, (emphasis added). If one then heeds the warnings of those who believe that the opportunities for most smaller firms to embrace the online delivery of service model, as Susskind believes they should, are severely limited, then the future for such firms starts to look decidedly bleak.
If, however, one believes (or prefers to believe) more the view of the arch Susskind sceptic, Leith, then perhaps the threats from those providing online services can be deflected (or at least minimised) by redoubling the human effort put into the traditional delivery of service, and maximising the quality of that service through IT. It is suggested in this work that such enhancement of client service can be aided by making the most effective use possible of the standard office IT, case management and practice management systems, and a well constructed and evolving firm web site.
Whichever visions, or particular views, of those discussed in this dissertation one ascribes to, the greater avenues of client service that IT is making possible, plus the government’s own IT initiatives and its intention to open up the legal services market, should certainly result in a short-term benefit to the public. For, as more ways of receiving legal service become available, the greater competition for one’s custom will hopefully see the levels of service provided to the client enhanced, whether that be a cheaper downloadable commodity product, on-line reporting to enhance a substantially traditionally delivered service, or a high street solicitor who actually returns your calls (or is even actually available when you call in the first place) in the hope of your future custom and recommendation to others.
The longer term is, of course, more difficult to predict, but the concern must be that if the number of high street practices does substantially diminish, less competition will result in a reduced level of service.
Courts, Judges
The examples highlighted earlier give a good picture of how IT can improve the administration of justice to the benefit of all concerned (i.e. workers within the justice system and the public affected by it). Moreover, the recognition by those involved with the running of our legal system of the difficulties which it faces, appears to have produced a high level impetus to advance and explore IT initiatives which will ameliorate those difficulties. Hopefully, these initiatives will improve the overall efficiency of the justice system, and further enhance the public access to it and to legal help in general.
However, crucial to widespread realisation of these aspirations are, of course, the basic issues of getting the necessary IT systems working and getting people to use them. As regards the first of these aspects, the commitment of top members of the judiciary, political will, and finance, all seem to be present. Notwithstanding these positive factors past failures of high profile, large-scale government IT projects do not bode well for current and proposed endeavours in the justice system. One can only hope that lessons will have been learnt from the likes of the Libra project, so that negotiations with suppliers will produce realistically achievable goals, and all stages of every project will be properly project managed (so that any problems are identified before they become crises, and adjustments necessary do not fundamentally alter the previously determined parameters, such as timescales, costs, functionality of systems delivered etc.).
As regards the use of new, court related IT, by the people working within the justice system, as with any IT project the trick is to manage the changes that the introduction of IT will have on the way those individuals carry out their work. It is important to demonstrate to them the benefits of the new systems (something which the pilot projects have hopefully shown to all concerned), involve them in the whole process of developing and introducing the systems (so that they feel ownership of those systems),[188] and provide adequate training and ongoing support so that it feels more normal to use the systems that not to do so. As Lord Justice Brooke noted, acknowledging that there are many judges who are not as enthusiastic about IT as he is, it is necessary for “training to meet the challenges posed by resistance to change and the fear of the unknown”.[189]
Thus there is much work ahead but at least there is a clear recognition of how IT could serve the law and a desire to employ it to that end.
[1] Small firms certainly merit particular consideration as according to Waterlow’s Directory of Solicitors’ firms there are presently 12,990 law firms in the UK, of which 7,668 are small firms (1-4 partners) i.e. small firms constitute a substantial proportion (some 59%) of the legal community in the UK. Moreover, research undertaken by the
[2] Susskind, R. Transforming the Law
[3] Ibid, p56
[4] Halliwell, T. Globalisation of Legal Practice – will there be any High Street Lawyers in 2010?
17th BILETA Annual Conference, 2002 http://www.bileta.ac.uk/02papers/halliwell.html
[5] Small firms engulfed. Law Gazette 14 September 2001 http://www.lawgazette.co.uk/news/…./2001-09-14/4arch.txt
[6] Halliwell, T. note 4 above.
[7] Ibid.
[8] Wall, D. S. Law has a Future but do lawyers? Legal Executive Journal,
www.ilexjournal.com/special_features/article.asp?theid=407&themode=2
[9] This has been the case for some time. e.g. “Litigants complain about delays and costs, governments about the cost of the system and lack of perceived value.”
[10] Government Computing Weekly email newsletter
[11] Irving, J. It’s Legal Bowerdean Publishing Company Ltd, 2000 pp28-32
[12]
[13] Christian, C. Legal Practice in The Digital Age Bowerdean Publishing Company Ltd, 1998 pp46-50
[14] Wall, T. note 8 above.
[15] Interviews were conducted with 159 private practice solicitors and 50 corporate solicitors, between 23rd of August to 5th of September 2001. [2002] 18 CLSR 1, pp 67-68
[16] Singh, G. et al, note 1 above.
[17] “it was realised how little of the modern solicitor’s job involves the substance of law and how much it now involves administrative and legal procedures: thus indicating the degree to which lawyering has become rationalised and has moved away from the traditional conceptualisation of legal professionalism, towards new types and levels of specialism.” Wall, T. note 8 above.
[18] Christian, C. note 13 above, p106
[19] Irving, J. note 11 above, p33
[20]
[21] Christian, C. note 13 above, p116
[22] Irving, J. note 11 above, p36
[23] Christian gives the example of the Scottish firm Morton Fraser having specially created a department to handle such high-volume ‘commodity’ legal work. Christian, C. note 13 above, p53
[24] Christian, C. note 13 above, p54
[25] “Information technology .. acts as an enabling mechanism for helping its people to create value. It can free staff from routine chores. It can allow them to get through more useful work faster. And it can make it easier for practice leaders to monitor and respond to trends in the business.” Irving, J. note 11 above, p23
[26] Information technology is merely an enabler. “..it’s people who drive the professions.” Irving, J. note 11 above, p9
[27]
[28] Whatever the politically correct view, the ‘law’ is not what occupies the time of the majority of practising lawyers. Hence the low uptake of on-line legal information services. Christian, C. note 13 above, pp37-38.
For most lawyers the process of law is procedurally driven, and thus procedure, rather than substantive law, is the focus of their attention.
[29] This concern was reflected in the Law Society and Bar Council’s Joint Statement on Qualifying Law Degrees, in which they emphasis the need to improve research skills training at University level. Widdison, R. Iolis Authoring in a Web Environment The Journal of Information, Law and Technology 2002 (2) http://elj.warwick.ac.uk/jilt/02-2/widdison.html
[30] Widdison, R. New Perspectives in Legal Information Retrieval International Journal of Law and Information Technology 10(1) Spring 2002 pp43-44
[31] Zeleznikow, J. and Hunter, D. Building Intelligence Legal Information Systems Kluwer Law and Taxation Publishers,
[32] Borlase, R. Natural Language Searching — Just Say ‘No!’ 2001
http://www.law.uh.edu/guides/Natural can %20Language.html
[33] Conrad, J. and Dabney, D. P. A Cognitive Approach to Judicial Opinion Structure: Applying Domain Expertise to Component Analysis ICAIL-2001 ACM p9
[34] See, for example,
[35] Conrad, J. and Dabney, D. P. note 33 above, p1
[36] As discussed by Widdison. Widdison, R. note 30 above.
[37] For example, Matthijssen, L. Interfacing between Lawyers and Computers Kluwer Law international, 1999 p235
[38] www.bailii.org www.austlii.edu.au
[39] Austin, D. et al. Scalability of Web Resources for Law: AustLII’s Technical Roadmap: Past, Present and Future The Journal of Information, Law and Technology 2000(1)
http://www.law.warwick.ac.uk/jilt/00-1/austin.html
[40] Widdison, R. note 30 above, p60
[41] Ibid, p42
[42] Only a quarter of homes have access to the web. One of the findings from the Scottish Household Survey, conducted by NFO Systems and Mori
[43] Widdison, R. note 30 above, p43
[44] Ibid, p43
[45] Brooke, L. J. The Information Society, the Judiciary and the Courts
http://www.lcd.gov.uk/judicial/speeches/ljb230502.htm
[46] Widdison, R. note 30 above, p44
[47] Nunn-Price, N. The Third Component – the Users International Review of Law, Computers and Technology 2001 Volume 15, No. 2, p137
[48] Widdison, R. note 30 above, p49
[49] Brooke, L. J. note 45 above.
[50] Access to justice Interim report, Chapter 13. www.lcd.gov.uk/civil/reportfr.htm
[51]
[52] The technology is not pervasive. A comparatively small number of English practices use it. Susskind, R. note 2 above, p246
[53]
[54] Christian, C. note 13 above, p41
[55] For example, at HM Land Registry. Legal Technology Insider 31 July 2002 p4
[56] What is IT? – Annual Lecture to the Scottish Society for Computers and Law,
[57] For example, Iliffes Booth Bennett has achieved “a major improvement in staff ratios” by rolling out digital dictation technology. Legal Technology Insider 4 September 2002 p4
[58] It is, however, still early days for digital dictation technology, with one recent report suggesting that only 25-35 firms in the
[59] One of the most recent bodies to invest in a document assembly system has been the Child Support Agency. Recent reports suggest that the introduction of the HotDocs system has cut document production times from around 4 hours to just 25 minutes per assessment. Legal Technology Insider 4 September 2002 p2
[60] There are many definitions of knowledge management. One, which seems to capture the themes present in most, runs as follows, “…the successful exploitation of ‘knowledge assets’ or so-called ‘intellectual capital’ is the key to competitive advantage in the future. The goal is simple [sic.]: to discover what the organisation knows, where that knowledge lives, how it can be found in future, made useful and relevant and how it can be delivered to the right person at the right time.” Terrett, A. The Internet – Business Strategies for Law Firms
Law Society Publishing 2000 p83
[61] For example, Growing the knowledge tree. Legal IT June 2002 p32
[62]
[63] Terrett, A. note 60 above, p84
[64] Susskind, R. note 2 above, p21
[65]
[66] Susskind, R. note 2 above, p131
[67] Terrett, A. note 60 above, p86
[68] Ibid, p74
[69] Ibid, p95
[70] Gottschalk confirms this attitude in his research into knowledge management in law firms. Gottschalk, P. 1999
[71] Apistola, M. and Oskamp, A. Legal Knowledge and Information Systems Jurix 2001: IOS Press, 2001, pp. 17-28
[72] Legal IT, September 2002, p26
[73] Kingsway Hall,
[74] Terrett, A. note 60 above, pp23-63 Amongst other things he emphasises the 3Cs (content, communication and community). A similar theme is articulated by others.
[75] Newman, G. Online Marketing Strategies LawPack 2001
[76] Reevy, J. Why Your Web Strategy is, err, Wrong Computers and Law, June/July 2002
Volume 13 Issue 2, pp 5-7
[77] Christian, C. Online Strategies For Smaller Law Firms Legal Technology Insider October 2001
http://www.legalnewsmedia.com/
[78] Ibid.
[79] In-house lawyers in particular, as buyers of legal services, are interested in downloading precedents and other legal documents directly from a firm web site, and in accessing its on-line information and library services. Christian, C. note 13 above, p78
[80] Susskind, R. note 2 above, p113
[81] www.blueflag.com
[82] Another high-end of the market site providing commoditised legal information is Clifford Chance’s NextLaw. www.nextlaw.com
[83] www.desktoplawyer.co.uk
[84] Christian, C. note 77 above.
[85] www.kt.uklaw.net
[86] Christian, C. note 77 above.
[87] Reevy, J. note 76 above.
[88] Evidence that the market might already be saturated as regards certain commodity products and that consolidation is taking place, can be seen in the recent acquisition by DivorceOnLine of WillYouEver. www.lawzone.co.uk/item/89763
[89] Susskind, R. note 2 above, p113
[90] Christian, C. note 13 above, pp27-28
[91] Irving, J. note 11 above, p18
[92] Epoch back from the brink. Legal News Media (email)
[93] The scale of the threat to small firms’ business can be seen from the following:
The Royal & SunAlliance insurance group reports that since introducing access to online legal services as part of its More Th>n family oriented legal protection product in the UK, sales have increased by 25% and over 50% of policyholders have opted to take the online element in addition to the core legal expenses package. The online services element includes access to over 200 interactive legal documents covering everything from making a will to getting an undefended divorce. Legal Technology Insider Newswire (email) 12.9.2002
[94] McIntosh, D. Law Society President, Law Society’s Conference, November 2001.
[95] Halliwell, T. note 4 above.
[96] http://www.courtservice.gov.uk/info/reps/mcc_report.pdf
[97] Brooke, L. J. note 45 above.
[98] Within the Scottish Courts services too, case management is being developed and pilot schemes are in operation. – The newsletter of the Scottish Society for Computers and Law June 2002
[99] Poor technology ‘lets down’
http://news.bbc.co.uk/low/english/sci/tech/newsid_2055000/2055405.stm
[100] Government spending review – £650 million court IT boost. 31 July 2002 Legal Technology Insider p8
[101] LCD spends £230 million and then rethinks strategy. Ibid, p7
[102] www.cjsonline.org/library/pdf/CJS_whitepaper.pdf
[103] What is IT? – Annual Lecture to the Scottish Society for Computers and Law,
[104] e.g. Animations, computer graphics, simulations and virtual reality, used, for example, to illustrate events surrounding an accident, or articulate stages in a complex fraud.
[105] Brooke, L. J. note 45 above.
[106] Tata, C.
[107] Tata, C. Resolute Ambivalence: Why Judiciaries Do Not Institutionalize Their Decision Support Systems
International Review of Law, Computers and Technology 2000 volume 14, No 3, pp 297-316
[108]30 July 1999 http://news.bbc.co.uk/1/low/uk/407911.stm
[109]25 Feb 2002
http://www.lawzone.co.uk/cgi-bin/item.cgi?id=73153&d=pndp&h=pnhp&f=pnfp
Also, Brooke, L. J. note 45 above.
[110] Brooke, L. J. note 45 above.
[111] Katsh, E.M. Law in a Digital World
[112] Branting, L.K Advisory Systems for Pro Se Litigants ICAIL-2001 ACM
[113] Zeleznikow, J. Using Web based legal decision support systems to improve access to justice
Information & Communications Technology Law Volume 11 No 1, 2002 pp 15-33
[114] Brooke, L. J. note 45 above.
[115] Access Denied, Law Society report, see Access To Justice Disappearing, LawZONE 24 Jul 2002
[116] www.courtservice.gov.uk/mcol
[117] Access to Justice, Interim report 1995; Access to Justice, Final report 1996
www.lcd.gov.uk/civil/reportfr.htm
[118] http://www.lcd.gov.uk/consult/itstrat/civindex.htm http://www.lcd.gov.uk/cj2000/cj2000.htm
[119] Current examples include www.wecansettle.com and www.theclaimroom.com
[120] The EU’s E-Commerce Directive seeks to encourage the uptake of electronic dispute resolution, but the use of ODR has so far been limited. – Clark, E. and Hoyle, A. On-line Dispute Resolution: Present Realities and Future Prospect 17th Annual Conference, 2002 http://www.bileta.ac.uk/02papers/hoyle.html
[121] Hornle, J. 2002
[122] Clark, E. and Hoyle, A. note 119 above.
[123]
[124] Christian, C. note 77 above.
[125]
[126] www.scl.org
[127]
[128] http://www.technolawyer.com
[129] Irving, J. note 11 above
[130] Christian, C. note 13 above, pp72-73
[131] Susskind, R. note 2 above, pp4-41
[132] Ibid, p21
[133] Growing the knowledge tree, note 61 above.
[134] Susskind, R. note 2 above, pp42-76
[135]
[136] Reevy, J. Law Practice – But Not As We Know It Legal Executive Journal,
www.icon5.com/ilex_journal/legal_briefings/article.asp?theid=205&themode=1
[137] Ibid.
[138] The failure of small firms in particular to fully exploit the potential of the IT they have is something which is regularly highlighted by academic studies and surveys, for example, Singh, G. et al, note 1 above.
[139] Irving, J. note 11 above, p92
[140] www.lawsociety.org.uk/dcs
[141] Irving, J. note 11 above, p108
[142] Ibid. p72-74
[143] Ibid. pp78-9
[144] Even law specific applications are now available from ASPs e.g. New ASP case manager for smaller practices Legal Technology Insider 17 April 2002 p3
[145] For example, ASP supplier Hub calls in receivers Legal Technology Insider 27 March 2002 p1
[146] Singh, G. et al, note 1 above.
[147]
[148] Irving, J. note 11 above, p102
[149]
[150] www.it.lawsociety.org.uk
[151] Christian, C. note 77 above.
[152] Reevy, J. note 76 above,
[153] Reevy, J. note 76 above,
[154] Christian, C. note 13 above, pp76-77
[155] www.useit.com/alertbox
[156] www.lawzone.co.uk/item/89211
[157] www.dataprotection.gov.uk www.it.lawsociety.org.uk
[158] For example, www.ability.co.uk www.rnib.org.uk/digital/
[159] Such as the imaginatively named www.websitesforlawfirms.co.uk
[160] e.g. www.legaltechnology.com/hitlistuk.htm
[161]
[162] Susskind, R. note 2 above, p55
[163] lawcrawler.findlaw.com
[164] For example, Semple Piggot Rochez www.legalpractitioner.co.uk
[165] Microsoft’s new licence deal – who cares? Legal Technology Insider 10 July 2002 p8
[166] In fact there is evidence of increasing interest in such products. Trend for Microsoft alternatives growing. Legal Technology Insider 8 May 2002 p7
[167]
[168] Christian, C. note 13 above, pp42-43
[169] This continues to be a major problem. e.g. Woe betide wireless wannabes. ITWeek 22 July 2002 p16
[170] www.counterpane.com Free monthly newsletter, Crypto-Gram, also available.
[171] An appropriate aphorism in this context being, “computer security … must be a state of mind that is shared by all employees”. Terrett, A. note 60 above, p177
[172] Terrett, A. note 60 above, p165
[173] For example, the Legal Software Suppliers Association’s schema, available at www.lssa.co.uk
[174] Hall, M. J. J. and Zeleznikow, J. Acknowledging Insufficiency in the Evaluation of Legal Knowledge-based Systems: Strategies Towards a Broad-based Evaluation Model ICAIL-2001 ACM
[175] This stance of
[176] www.softlaw.com.au
[177] Susskind, R. note 2 above, pp164-5
[178] www.rapidocs.com/rc www.hotdocs.co.uk
[179] This is recognised, for example, by Kevin Ashley, one of the leading researchers into case based reasoning systems. Bruninghaus, S. and Ashley, K. D. Improving the Representation of Legal Case Texts with Information Extraction Methods ICAIL-2001 ACM
[180] See, for example, the works of
Yannopoulos, G.N. Modelling the Legal Decision Process for Information Technology Applications in Law Kluwer Law international, 1998,
Wahlgren, P. Automation of Legal Reasoning Kluwer Law and Taxation Publishers,
Valente, A. Legal Knowledge Engineering IOS Press 1995
[181] For example, Bench-Capon, T.J.M. and Henderson, J. ICAIL-2001 ACM
[182] See, for example, Verheij, B. Legal decision making as dialectical theory construction with argumentation schemes ICAIL-2001 ACM
[183] See, for example, Huygen, P.E.M. Use of Bayesian Belief Networks in legal reasoning 17th BILETA Annual Conference, 2002 http://www.bileta.ac.uk/02papers/huygen.html
[184] Susskind, R. note 2 above, p163
[185] Zeleznikow, J. note 112 above, pp25-27
[186] www.lcd.gov.uk/consult/itstrat/civindex.htm
[187] Confirmation of the continuing failure of law firms in this respect is provided in the 2001 Legal IT survey, Benchmarking Technology in the Global Economy, carried out by PA Consulting, which “revealed a mismatch between the strategic direction of IT and the business”. Legal IT, September 2002, p16.
Academic studies also highlight the failure of small firms to use IT as a “business development tool” Singh, G. et al, note 1 above.
[188] One would imagine that the high profile judges like Lord Justice Brooke and the Lord Chief Justice of
[189] Brooke, L. J. note 45 above.
