His book, The Future of Law (OUP), haswidened the audience for the issues and among other recent commitments is hiswork on the group which was responsible for the civil.justice consultation paperpublished by the Lord Chancellor’s Department. Laurence Eastham, Co-ordinatingEditor of the magazine, met with him in November and what follows is an editedversion of the informal interview which ensued.
LE: I was reminded of the great significance of your workwhen reading one of the articles which appears elsewhere in the magazine. Theauthor uses the word ‘Susskind-esque’ and that is a measure of how much youroutlook, and in particular your book, The Future of Law, has influenceddiscussion of the way in which technology will affect the development of legalpractice. In your book you discuss the prospective shift in the legal paradigm– how far have we shifted in the two and a half years since you published thatbook?
RS: What I was saying in the book was that we would see,over a period of years, a shift in paradigm (to use that overworked phrase) inlegal service on the one hand and in the legal process on the other. It wasinteresting when I came to write the preface to the paperback edition, whichcame out earlier this year, that it took me 50 pages to bring the thing up todate.
So I suppose things have shifted very rapidly indeed. They say that anInternet year is the equivalent of seven normal years – so it has been 14years by that standard.
When I wrote the book in 1995 and I suggested that legal guidance could be delivered online via information systems, many people thought I was off my head. |
What I was saying, in very broad terms, is that we are in a transitionalphase between the print-based industrial society on the one hand and the ITbased information society on the other. In the book I say, and it’s no more thanan informed guess, that it will take 15 or 20 years to get fully into theinformation age. We will know that we are in the information age when thetechnology enables us to get all but only the information we need –when the knowledge processing technology is as good as our current dataprocessing technology. The gap today is between our ability to produceinformation and the technology to manage the resultant information overload. Asmore and more knowledge-based technologies emerge, and help us manage all ourinformation, I think we will see ourselves in the information age.
Just as the industrial revolution didn’t happen overnight, so too we arelooking at 50 years before the full change has occurred. The interesting thingis how so much has happened, and is happening, in even such a short period oftime. In terms of legal service, I think it is true to say that when I wrote thebook in 1995 (having prepared it for several years prior to that) and Isuggested that legal guidance could be delivered online via information systems,as well as (not necessarily replacing) conventional legalservices, many people thought I was off my head. It is interesting to see thatsince then two of the world’s largest legal firms, Clifford Chance andLinklaters, have produced their NextLaw and Blue Flag systems respectively.Whether or not they were inspired or encouraged by me, the reality is that whatwas for many people unrealistic (even science fiction) only two and a half yearsago is now a commercial reality. And it is not just these firms now, but othersin the UK and around the world. One of the main things I was saying was that wewould see new ways of delivering legal service, new ways of offering access tolegal guidance; that is happening already and will continue to happen.
As regards the legal process, I think one of the main things to happen hasbeen civil.justice, which is an initiative of Geoff Hoon, the Ministerof State in the Lord Chancellor’s Department. Interestingly, he was the ShadowIT Minister before the Labour Party came to power. He has set up a group, and Ithink it is a high powered and effective group, to set the direction for IT inthe civil justice system for a 5 to 15 year period. The assumption is that theWoolf reforms will occupy most technological investment over the next five yearsbut this raises the question of what is going to happen thereafter. Theconsultation paper, civil.justice, is the first attempt to have a stabat thinking about what is round the corner. If you look at ideas about theCommunity Legal Service or virtual hearings, or if you look at some of the otherassumptions which that paper challenges, two years ago the publication of such aconsultation paper would have been virtually unimaginable.
Of course the changes which constitute the ‘paradigm shift’ will takemany years to come but the signs to date make me feel, more strongly than ever,that it will happen.
LE: So you feel the very fact of publication of the paper isitself significant. That the existence of the paper and some of the issues whichit raises is itself a major step forward.
RS: Yes. I do not think that the future is predetermined andout there waiting to happen. It is shaped by those who are in positions ofinfluence and power. Many of us who are involved feel that we can actually havesome influence on the way in which things develop. It is in some sense aself-fulfilling prophecy but insofar as a very widely read consultation papercomes out, and many others within the legal profession respond, it widens thehorizons of those in power who might not otherwise have been exposed to thepossibilities which technology can bring.
LE: One criticism of the paper which I have heard expressedis that it addresses issues which are way outside IT or which have any apparentconnection with IT. Two examples would be the fusion of the profession and thedistinction, or the ending of the distinction, between civil and criminal legalwork. ADR is considered there too, as tends to happen in an IT context. Arethese areas which it is proper for the paper to address?
RS: There are two points there – one about labelling andthe other a more serious point.
The labelling point is that the paper’s full title is civil.justice –resolving and avoiding disputes in the information age. That means that thepaper is not merely addressing the ways in which technology may affect thejustice system. It is looking at the justice system in the information society.In that sense it has a licence to roam over any topic affecting civil justice inthat future.
More to the point, it is a fundamental error, an absolutely critical,fundamental error, to separate out IT from other matters. I like to think thatin society generally, and in business in particular, we are beginning to seetechnology as being a feature of life rather than something separate from it. Ithink it is right to see technology as a basic part of our world and a criticalpart of our justice system. It is the difference between 1980s thinking whichlooked at ways in which technology could be a support for us and 1990s thinkingwhich allows technology to help us shape our ideas of where we want to be.Innovative technology allows us to do fundamentally different things and thatdoes challenge some of the basic assumptions which you have made reference to. Ithink the extended title of the paper allows us to go beyond the strict limitsof IT and think about all aspects of the civil justice system in an informationsociety.
LE: So we are really talking about a business processre-engineering for the civil justice system.
RS: I think we will find two things happening. I think wewill find technology computerising, optimising and streamlining that which isalready quite well done. We will also find it offering opportunities to docompletely different things. This is the well established twin role oftechnology: automating and innovating. In regard to the latter, I am a verystrong believer that the idea for a Community Legal Service is ready-made forthe application of technology – it can potentially and in reality be shaped bytechnology so that we can go beyond the conventional ways of providing such aservice.
LE: It’s not just a case of getting online information tothe adviser at a CAB or law centre but you are saying that it requires anentirely different approach.
RS: It depends on the view you take. In the short term weneed to rationalise a lot of what is going on out there and make it morecoherent and so forth. But if we are looking towards the long term thentechnology can be used to provide a service which can give citizens betteraccess to lawyers, across the Internet for example. All of that sits comfortablywith the Prime Minister’s more general aspiration to have 25% of all governmentservices deliverable through new technology by 2002.
LE: One of the things that struck me about civil.justice,or more accurately about the group which produced it, is that there is not apractising lawyer in the group.
RS: That was the product of a conscious decision to make thegroup consultative rather than representative. Sitting as I do on numerousrepresentative bodies, frankly I am not sure that they work. It is always hardto get the best person round the table from any particular organisation and, hadwe tried to be representative, there are probably 30 or 40 interested partieswho might have claimed a place at the table. The approach which was adoptedinstead was to produce, with the input of those who are absolutely central totechnology in government and with the support of the Minister, a document whichwould provoke thinking and we hope, for example from the Law Society and the BarCouncil, to get a fairly definitive response which is the result of manypeople’s thinking not just that of the one individual who happened to be roundthe table. So our feeling was that we could launch a consultation exercise whichwill actually allow far wider representation and far more profound input thanwould have been achieved simply by having one representative on the group. Ithink the other thing to think about, and it is early days yet, is that sometime next year when the final document comes out the next step will be actuallyputting the initiatives into action; at that stage we must look for the activeparticipation of all relevant bodies.
LE: As you say it’s early days yet and we have not yetreached the deadline for views.
RS: The signs are encouraging that we will get worthwhilecontributions. The fear when you do this kind of thing is that it will be seenas peripheral but we have had real interest shown by the main representativebodies for lawyers, law centres, consumer groups and quite a lot of interestfrom around the world as well. We are plugged into similar initiatives in othercountries, which interestingly would have been impossible but for the World WideWeb. As it is we can pick up on all these initiatives: how else would we knowabout the People’s Law Library of Maryland for example – they are trying toput informal legal guidance at the fingertips of all Web users there, which isalmost everyone – or the Pro Bono Unit in New York which is doing someinteresting work on online guidance. Both of those initiatives are supported bythe Soros Foundation.
LE: Jumping back to what you were saying earlier about theLinklaters and Clifford Chance sites, you were talking of them as being worldleaders. Do you think that we in the UK are in the forefront of developmentsthere?
RS: I think those two sites are world leaders in acommercial sense – from two major international firms. But there is a hugerange of systems out there. If you look for example at the Kaye Tesler site, youcan see that it can be the energy of a small practice which can make equallyexciting things happen.
I am very interested in the whole idea of technology as a means of deliveryof legal guidance, for example to the people who are watching digitaltelevision. There is a huge potential for the delivery of legal service by thesesorts of means and we see Linklaters at one end of that spectrum of service.
LE: The digital television aspect, and the way it willdevelop, raises great uncertainties. It was interesting that when I wasapproaching people to write about possible future trends so many people raisedthe impact of digital TV that I was constrained to limit the mentions of it.There must be the possibility that it will be simply swept away by something wedo not even know about yet.
RS: Think first about the information source – in generalterms the Internet. Up to two years ago, almost everyone assumed that thedominant and exclusive point of access to the World Wide Web would be thepersonal computer. That underlies many of the concerns about Microsoft – ifthey dominate the industry and their browser comes bundled with the operatingsystem, does that mean they will dominate this global information service whichis going to become so vital for our lives? That was the worry two years ago, butthe answer now is that we see two other broad categories of informationappliance. On the one hand there is the personal digital assistant, like a Psion,the next generation of which will offer Web access as the convergence withtelecommunications technology develops. On the other hand there is the nextgeneration of televisions which will include other non-TV technologies and whichcould provide the basis for a phenomenal, interactive multimedia online service,which is rather upmarket and which for most people, not business peopleobviously, will be their main source of regular access to the Web – many timesa week.
I think you are right in that we cannot afford to be too dogmatic about whatis going to be the dominant appliance – there is the theory (to which I do notpersonally subscribe) that it will be the microwave door on the basis that youspend a lot of time in front of it waiting so why not access the Internet whenyou are there! My point is that we are going to find access points all over theplace. We need not worry about where they are but that they are going to come todominate our world. In an advanced society, they are saying that PC technologyis going to plateau at 50% of households, and that seems quite likely. Thatstill means that 50% will not have access to personal information systems unlessthey access these via the TV, or the microwave or whatever. We should bear inmind that Teletext and Ceefax are currently said to be accessed 18 million timesa week.
LE: One of the burning questions then is how many peopleactually want to interact. People I know do not even change television channelsvery often – they tend to let it come to them.
RS: Looking at the time frame that I am, which is the timeframe being considered in civil.justice, we have to consider the nextgeneration of human beings. There is what is referred to in Don Tapscott’s GrowingUp Digital as the ‘Net generation’, people between the ages of 2 and 22who in 15 years may be running the world, or at least running major corporationsand so on. People of our generation may prefer to be passive rather thannaturally interactive but 10-15 years from now society will be different and alarge percentage of the population will have the relevant skills and have grownup and been educated with online services. It is a different mindset. I amshortly giving a talk to school parents on that kind of issue: addressingconcerns like the fact that their children are being terribly solitary whenusing their computers. Reading a book is solitary too but we would be rightlycondemned if we tried to stop our children doing that. I find that we sometimescondemn the use of computer games without having looked at them ourselves. Mychildren have what I thought was a football game but which turns out to involvestrategic management of a club; being involved in play that involves theacquisition of business management skills online seems preferable to watching TVor reading comics.
Whether or not an older generation can adjust to the changes is a difficultquestion.
LE: Can I turn now to SCL and its future. The key questionis whether it has already fulfilled its aims now that IT is seen as a mainstreampart of the practice of law.
RS: I am reminded of a comment of Richard Morgan, an SCLChairman during the 1980s, when he questioned whether there was any more needfor a Society for Computers and Law than for a Society of Typewriters and theLaw. I feel now as I felt then that we are talking about tools which bringchange of a different order of magnitude The typewriter can only be a functionaltool. The interesting thing with IT is that it is so rapidly changing and thatthere are no clearly established boundaries. I think one of the challenges forSCL, once it has enabled and encouraged the entire profession to use technology,is to be the definitive voice in relation to emerging technologies. It is notjust that they keep on emerging but that it is so daunting for people trying toget on with legal practice to try to keep up to date with the innumerabledevelopments. So they will always want to have some kind of place or body whichkeeps them up to date with what is happening in the research laboratories andwhat is coming on to the marketplace.
One of the key strategic questions for the Society in the 1980s was whetherit should be devoting itself to advanced matters or whether it should beconcerned with basic matters too. It was decided then that it should do bothbecause we had to look to the leading edge as well as to encouraging thoselawyers in law firms who were moving quite slowly with technology. I do thinkthat a couple of years from now most people will have taken technology on boardand the basic function will be of less significance. I would like to see theSociety as the natural place to turn to in order to obtain guidance on newdevelopments. That is just on the applications side.
At least as important, as we see a business world dominated by computers,e-commerce and so forth, is the substantive law relating to technology. Like anySociety which deals with substantive law there is the issue of keeping up todate and commenting on emerging legislation and case law, and I would like tosee the Society as a focal point for such comments. But there is also a wholerange of information policy issues in which I think the Society can usefully beinvolved. The move to the information society will throw up huge challenges of asocial sort which government has got to address, for example about access topublic information, about privacy, about the regulation of information systemsand about the irrelevance of jurisdictional boundaries in an electronic world.These are all policy issues but the Society could play a vital role in thediscussion of them.
I am very interested in some of the issues about the future of intellectualproperty and the extent to which it is appropriate in the information society.There is a great book by James Boyles, Shamans, Software and Spleens,in which he convincingly challenges what he calls the ‘romantic author’element of intellectual property whereby the creators of information are seen asits owners. His challenges move into the area of what the law should be ratherthan what it is and how our legal systems should respond to the questionsarising from new ways of living. It would be a shame if SCL were not in aposition to contribute to those sorts of debates.
LE: Is a society dominated by IP lawyers well positioned todo that?
RS: It could be said that it is not in intellectual propertylawyers interest to challenge the status quo. But it is my experience that theyare imaginative and will see the entrepreneurial opportunities. In any casethere are enough iconoclasts and outspoken persons in SCL to allow any issue tobe raised.
LE: So you are happy that it is right for the Society todevote some of its efforts to the interest of IT lawyers rather than focusingonly on applications?
RS: It was a strategic decision by the Society some yearsago for us to become more involved in that area. I would like to see us steppingit up now. Most of the leading lights in IT law are active in the Society andthat is a strength.
It was not foreseeable a few years ago that we would be as successful as wehave been in bringing these players around the table. Obviously it is useful forpractitioners to get together and discuss practitioner issues of common concernbut I would hope that the discussion could be taken onto another plane; theymight discuss some of the information policy challenges which will arise. Ithink we need to sort out a mechanism for such discussion but it is one way inwhich the Society could make a difference.
LE: Any other thoughts for the future of SCL?
RS: It may or may not be a trivial point but whether or notthe name of the Society is now too far removed from what the Society actuallydoes raises an interesting challenge.
LE: Well certainly we find ourselves talking aboutapplications which have no immediate computer contact, obviously the computer isthere under the bonnet but it is not, for example, the element that oneconsiders when talking about Internet-related technology. Most of the time wefind ourselves talking of information technology, as we have here.
RS: It may be that the name is anomalous but quaint, or itmay be that we should be looking to have a name which makes it clear that thisis the definitive body for discussions relating to justice and informationpolicy as well as IT applications and IT law.
LE: Thank you for your time. We have certainly covered agood deal of ground.
