November 1999

External Trends Affecting the Practice of Law in Washington State:
Issue Spotting in Technology and Law Practice 2000-2005

Law and technology will intersect and change the practice of law in many ways in the near future.

The idea behind telepresence is the capacity of people effectively to interact from different locations.

Many tasks that formerly required face-to-face interaction can now be accomplished without the parties occupying the same place. The availability of the World Wide Web makes inexpensive video "meetings" of geographically distant parties possible. Web cameras sell for under $100, bandwidth problems are shrinking, and any attorney who wants to can have Web access. As a result, meetings can be conducted via Web-based video, at very little burden to all parties. The idea of flying witnesses to a deposition on the opposite coast may some day be considered unnecessary.

At trial, a virtual courtroom could supplement or replace the traditional and expensive co-location of judge, parties, witnesses and jury. Consider the savings to jurors alone. Telepresence could allow the formation of a statewide jury pool, thereby smoothing out local fluctuations in demand, allowing concurrent voir dire of one juror for multiple trials, and permitting jurors to serve in local jury rooms instead of having to travel downtown.

Ordinary meetings are synchronous; that is, each participant must be present at the same time. E-mail is an asynchronous form of communication, as participants communicate at a time convenient to each.

When it comes to carefully discussing an issue, a series of e-mails can be more effective than a traditional meeting. Each party has the opportunity to develop questions and review responses at a convenient time and place. E-mail communication has every important element of a meeting except simultaneity in time and space.

Of course, this comes with risks. Without the cue of physical location, lawyers could find themselves practicing law in an unintended jurisdiction. Public access to decision-making processes could also suffer. It may be unclear whether open-meetings laws apply to e-mails between public officials, even when these act as an asynchronous meeting. The solution may be to offer free public access to e-mail archives of public bodies. If the problems inherent in doing so (e.g., privacy) can be worked out, the result could be greater public participation and confidence in public decision-making processes.

The legal community, like other areas of society, is moving its records to electronic format. Many firms are appropriately moving to full-fledged document-management systems similar to those used in other industries. Some examples include:

ECR is maintaining court documents in an electronic format, regardless of the format in which they are filed. ECR offers better access to records, faster retrieval, longer service hours, elimination of problems with files "in transit" or being checked out to another person, and less need to maintain a parallel file. The result: savings in materials handling and storage.

ECF is submitting documents to a court in an electronic format, regardless of whether they are stored in an ECR system, or printed and filed conventionally. ECF offers benefits such as lower costs in getting documents to the courthouse and in converting them to ECR.

An extranet functions as a "place" where law firms, or a firm and its client, can share documents. For example, two law firms which must exchange thousands of documents might post them to a "virtual file cabinet" on an extranet computer or computers, with appropriate security. The result is more convenient access to large volumes of documents or to documents that change repeatedly (such as a contract under negotiation), and reduction in delivery costs.

The same information technology that has revolutionized other information-intensive sectors could benefit the legal industry. Integrating court, counsel and party calendars via the Web could cut down on time and effort, and reduce errors. Automatic sharing of information as soon as it is generated, such as a court order, could increase the effectiveness of the law and safety communities.

For example, the process of issuing a restraining order could include immediately entering it into a database that forwards a record to the relevant police department and to other courts. This could make precise identification of the parties and the terms of the order quickly available to the people who need it, including other courts.

The lowering of technology barriers to public domain data offers the potential for more effective use, at lower cost, by the bench, bar and public. The main issues may be organizational: how should the information be made available, and who should support it?

Formerly, the case law that was developed through public resources was available only in proprietary media that could not connect to electronic court documents. Today, it is technologically possible to post all Washington state case law on the Web in a form that hyperlinks from court briefs or any other electronic document, searches via standard Web search engines (e.g., Yahoo), and allows adding features as technology and requirements change.

There are, however, significant organizational issues. The case law host organization must be highly stable and authoritative, so that court records need not be converted as the host changes over the decades. Citation format must be vendor-neutral, allow pinpoint citation, and be simple enough to support hard copy. Court rules and statutes may have to be adapted. Finally, implementing linkable case law requires funding and management.[2]

Although in 1999 many statutes and other documents are available on the Web, they are not in a format to which documents can easily hyperlink. For example, many Web sources provide law through a database query that would not be appropriate to embed in a court document. Also, unlike case law, statutes change over time, requiring a more complex citation.

As technological innovations such as Microsoft Office 2000 and other software dramatically lower the cost of making public information available on the Web, the presumption should be to do so unless there is a good reason not to (e.g., privacy). While some particularly obscure documents may never be of interest to anyone, it is impractical to predict which documents these would be, and the effort of trying to make this decision would exceed the benefit of doing so. There will surely be organizational difficulties in making the transition to "working in a fishbowl," but the net effect should be to enable greater public participation and confidence in self-government.

We are accustomed to thinking of documents as unitary objects that we must read to extract important attributes, such as "Title" or "Date Filed." Electronic documents can "tag" these attributes explicitly, using a "markup language" such as XML.[1] This lets us automate any activity which uses document attributes, such as indexing, citation, or identifying all documents referring to a particular plaintiff. While reducing paper-handling costs, this also dramatically improves the level of attorney service to clients. XML is a particularly useful method of tagging attributes, because it is designed to be flexible or "extensible." Future information requirements can be added as needed.

Paper documents often refer to other documents, such as statutes, cases and other documents within the case file. Electronic documents can improve on this by offering hyperlinks, with many benefits.

If a picture is worth a thousand words, video may be worth much more.

Many implementation issues hold up improvements in court filings and other documents. Legal-industry XML standards must be defined. This is comparable to defining EDI (Electronic Data Interchange) standards in the world of commerce. As with EDI, markup standards need input from a broad range of legal professionals if they are to meet broad needs.

What makes sense for document size limits? It is hard to apply page count to an electronic document or word count to a video. And what about hyperlinks? References must link to sources that are reliable and free of charge. Finally, using hypertext, multimedia, etc. must not prevent equal access by persons without the necessary technology.

Web-based, telepresent classes, simulations and analysis of essays using artificial intelligence could make education easier, better and cheaper. They also demand a more refined answer to the question of what the education is for.  For example, is interaction with a teacher important?. Also, if education is cheaper and faster, should more be required?

Technology may lower the cost of measuring the results of education. The bar exam might be offered at many sites with video monitoring. The effectiveness of law school or CLEs in leading toward effective lawyering might be measured with the same technology that allows marketers to correlate exposure to a commercial with the purchase of a product.

A digital signature is a reliable means to identify the author of a document, and whether it has been modified since it was signed. It involves the invocation of a third party, called a Digital Signature Certificate Provider (CP), to affix a special code to the document. While it may be impossible for any technology to perfectly guarantee the identity of a document issuer, a digital signature usually can be more reliable than a conventional pen-and-ink signature. Washington law gives effect to these Digital Signatures if the CP meets certain statutory requirements.

The advent of digital signatures is prompting an examination of the purpose of a signature. Do ethical requirements or legal effect mandate that all court-filed documents need the maximum security of a digital signature, or might a lesser form of security suffice for low-risk documents?[3]

Common Issues

Compared to other information-intensive enterprises, the legal system is relatively slow to adopt new technology. Perhaps this is because legal issues frequently involve matters which cannot be entrusted to experimental systems; perhaps it is due to budget. Many of the opportunities above share the following issues:

Ensuring that there will be enough hardware, software and technical support in courtrooms, police stations and law offices is not trivial. Many buildings were not designed with wiring, cooling or other facilities that technology requires. Many organizations do not have the necessary built-in organizational structures, such as a network support person or a policy of continuous retraining in new technology. Unlike commercial ventures, political units may not be able to simply go to the market to fund capital improvements.

Standards

Communication among diverse computer systems and political organizations requires some shared standard protocol, which has yet to be developed. Because diverse political units may not agree on a single standard, a protocol that allows for variation must be developed. XML is a promising protocol, but requires much developmental work.

There is a risk that early adopters may set a standard that may not be broadly appropriate. A standard set by a large court system, e.g., the federal system, might dominate out of proportion to technical merit. Many local court systems will want to maintain local control over their own records, perhaps sharing a common index to materials statewide.

Rules and statutory changes may need to precede technological implementation. Local or temporary rules may serve as experiments before the statewide rule change process is complete.

There are reports of several public-private projects around the nation. Some have failed to generate enough revenue to be profitable to the private partner.

Security issues become especially important as information moves from physical paper to electronic format. For example, while most court records have always been public, the physical effort needed to access them gave some measure of privacy to most people and limited the damage of erroneous or scurrilous documents. Easily accessed electronic records may put us all in a fishbowl.

Many people are accustomed to words on a physical piece of paper, and may resist trusting legal rights to the same sort of computers that they see messing up their phone bills. Even the most sophisticated institutions may require significant hand-holding with high-tech legal processes. For example, a bank may not know whether to accept a document with a digital signature. It is essential to assure individuals that their electronic records are secure and correct, as well as to assure institutions that they are in a format compatible with other institutions' computer systems.

The WSBA might provide leadership in examining or promoting technological opportunities. Through its practice sections, Electronic Communications Committee (EC2) and other entities, the WSBA can support members studying and sharing information on what works and what needs to be done.

In addition, the WSBA might sponsor high-tech services as a member benefit or as a revenue source. WSBA could, for example, become a Digital Signature Certificate Provider (CP). Determining which services best service the membership and the public is not trivial.

1. See Robert S. Apgood, "Extensible Markup Language (XML)," Bar News, October 1999, pp. 40-41; Roger Winters, "XML and Electronic Filing Issues for Courts"; and the home page of WSBA's XML Study Group.

2. See WSBA's EC2 Committee Public Data Access Program.

3. See WSBA's EC2 Committee Information on Digital Signatures in Washington State.

Randall Winn <randyw@rewinn.com>  wrote software for over 20 years before (inspired by too much L. A. Law) trying law school, passing a couple of bar exams, and seeking opportunities at the intersection of law & technology.

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