In the past few years I have come to develop a strong sense that the practice of law is basically an act of managing information. It seems so obvious now that I can barely remember thinking of law as anything other than that. But the fact is, for most of my seventeen years of practice, I did. I don't think many other lawyers share my view. Most, I think, would feel compelled to disagree and say, "no, practicing law is about serving your client." Or something like that. But putting aside for the moment whether a lawyer should feel comfortable saying in public that basically all she does is "manage information" (perhaps she shouldn't), there is something about this law-as-information-idea that has a deep root that is worth exploring. And I think it explains why lawyers have not yet fully accepted technology as a critical tool in the practice of law.
But, let's switch gears for a second and talk about Accountants. I would guess that they don't want to hear someone say that basically all they do is crunch numbers. Even if you say it more broadly, as in, the accounting trade is basically processing financial information, many accountants might not favor that phrasing. But there is no question that the core thing that accountants do is analyze financial information.
And it is not at all controversial to point out that the computer has been a great boon to accountants. Many are familiar with the story of how back in the late 80's Visicalc became the "killer app" that made it easier for many people (accountants being at the top of the list) to manage their financial information. Why hasn't that happened in the law?
Well, for one thing (and this is an important point), there is no one "killer app" that makes it easier for lawyers to practice law. And many of the tools that are out there to help lawyers have only recenly been created. But that doesn't mean that law is not basically an information processing enterprise.
In the past three years I have come to view the practice of law as managing information because I have started using new tools that in my practice. But to use those tools I had to change some fundamental things in my practice.
I understand that many (probably most) lawyers aren't into computers and software like I am, and are not inclined to retool the way they practice law. Many, especially the older lawyers, feel like they have experienced quite enough change (thank you very much). "Boy that fax machine really changed the way we practice law," you hear them say. Or they'll observe how "now you see all these young kids with computers typing their own memos and pleadings." Implicit in such observations is the idea that the introduction of a few tools (like fax machines and word processors, or online computer legal research) has revolutionized law. Okay, well they did, sort of. But not completely. And not like the spreadsheet revolutionized accounting.
So why not? And, again, why don't lawyers view themselves as managers and processors of information?
Well let's ask a fundamental question. What happens when a lawyer practices law? And let's answer that by using one kind of lawyer: the litigator, as opposed to the transactional, deal-maker lawyer. What does a litigator do all day long? Well, in my case, I file lawsuits and defend them and get ready to go to trial (with an eye toward reaching a compromise along the way if that is in my client's interest).
But how do I pursue or defend a case? Well I figure out what law applies (using online computer research tools). And I write memos (using a word processor). And I transmit the final copy at the last possible moment to my opponent (with a fax machine). That's what I do and that is what most lawyers do. But all that focuses on the law. And there is something else besides the law that is important to litigators and trial lawyers. In fact, it is more important, in virtually eighty percent of the cases that we deal with. What is it? The facts.
Most lawyers instinctively know that the facts of a dispute will more predominately shape the outcome of a case than the law. So what technology tools do they use to help them analyze, distill, and cross-reference facts that apply to their cases? The answer is: surprisingly few.
Take depositions as one example. This is a key fact finding tool. You bring in a witness who knows something about a dispute and ask a bunch of questions. The witness is under oath and gives their answers and the court reporter takes it all down. So now you have a written record of that person's account of the events. So what does the lawyer do after the deposition is over? Usually, he orders a transcript and when it arrives he throws it in the file. Later when he gets ready to go to trial he pulls the transcript out and reads it again to refresh his memory of what happened. That's how it was when I started. And, for many lawyers, that's how it still is.
What about documents? Another source of facts. A document is usually better than a witness. Why? Because documents don't change their story. So documents are a gold-mine of information, and, given the ever increasing volume of paper that is being cranked out, (thanks to the word processor) there's usually a lot of gold in 'dem dere hills. And what tools do lawyers use to analyze the information in those documents? Virtually none. Or what tools do lawyers use to cross-reference the information in the documents with the information from the depositions? Again, almost none. Not an optimal situation, in my view. But it is the predominant method, and has been for many years, mostly because the tools weren't available to do it any other way. But it is safe to say that many tools are now available, and, frankly they have been for at least five years. Maybe more.
In the past three years I have stumbled across some of these tools. Out of some bizzare geek-driven curiosity I have learned little bit about how databases work, and how to make use of case management tools. I started scanning documents like a fiend, and then struggled with the problems of accessing and cataloguing the stuff I had scanned. I began using software to consolidate deposition transcripts into one massive database that I could search in one fell swoop. And then, somewhere along the line, the dust settled and I realized that, with a few simple tools (which, it is true, had to be carefully managed), I had at my fingertips a wealth of information about all of my cases. It was, as they say, a good thing.
But, what is the moral of this lengthy story?
It is certainly not that I am a genius for using technology to practice law (I didn't set out to learn all of this, but truly stumbled upon it). The point is to explain why more lawyers don't accept the idea that law is basically about managing information. And I guess, from my perspective, it's because they don't manage it. And I guess I don't blame them. I didn't either up until recently. And, from having done it, I know how hard it is to shift gears and develop a new method of practicing law (although, truthfully, it was easier in my case because I didn't have a great method to begin with).
But, having develolped a method now, and having developed one that lets me access information quickly and to process it quickly I really don't see that law is too much more than managing information. Sure, there are "judgment calls" to be made. But I see a lot of judgment calls being made with incomplete, inaccurate, or outdated, information. Technology is going to help us all manage our information better, whether we want it or not. And I think that over the long haul the lawyers who manage information better will win more cases. More importantly, they will be able to handle more cases, and at a cheaper cost to the client. So, while lawyers may not have fully embraced all of the tools that technology has to offer I think that market forces will eventually erode the present barriers. It just makes sense. It's really just a question of learning how to manage information.
