Maybe it’s just my ultra-competitive nature, but to my ears, most conversations about legal technology seem to devolve into “us vs. them.” On one side are those that see the legal profession as an area ripe for change and believe technology and innovative practices are the way to do it. On the other are those that think the previous group is full of hot air and making baseless claims. I mean, I guess that’s what their problem is.
If I had to choose a side, I would lean towards the pro-innovation and technology camp. I’m not necessarily pro-technology, but having spent the last ten years helping people that have fallen into the access to justice gap, I am anti-status quo.
I’m cautiously optimistic that there are some technological innovations being made that can decrease the access to justice gap, and I’m hopeful that they are adopted. If I’m being honest, though, I have grave concerns about the rise of technology in the practice of law, especially in its current trajectory.
Full disclosure: I’m not a “real lawyer.” I’m a law librarian. If your first thought upon hearing that is “Libraries? Do we still need those? Isn’t everything online?” then you have a glimpse of what worries me about legal technology.
One of the complaints from people on the pro-technology side of things is that lawyers and the legal profession have been slow to adapt to technological changes. Personally, I see this as an advantage. This cautious approach has allowed the legal profession to (hopefully) learn from the mistakes other industries made as some of their core functions were computer-automated or computer-assisted.
About 30 years ago, libraries began to see some of the issues facing the practice of law today. People—some inside the industry, some outside of the industry—began to realize that some of the core activities of librarianship (such as organizing and providing access to knowledge) could be made more efficient by automating them. And it’s true—it is much easier to use an online database than it is to spend time hunting through bookshelves and rooting through print books.
Libraries are much more than book warehouses, however. Much like lawyers, libraries and librarians have an almost sacred duty to the society that they serve. Where lawyers work to keep the legal system operational and preserve the rights of citizens, librarians have a specific obligation to preserve knowledge and make sure that future generations will be able to use it. They also ensure that their patrons can access this knowledge privately, away from the prying eyes of their neighbors or authority. Other people and things can attempt to do these functions, but only lawyers and librarians have a professional obligation to do so in an ethical manner.
Now, almost all of the sacred duties of librarians are impossible thanks to technological innovations in librarianship. Large corporations such as Thomson Reuters, Elsevier, and Amazon have inserted themselves into, or even replaced, the librarian-patron relationship. The shift to digital information accretion and storage means that libraries lease information from large international corporations rather than own it. This lack of ownership means that libraries can no longer act to preserve materials. As soon as the funding runs out for the lease, the information goes poof.
These large corporations also have no interest in preserving the privacy of an individual who is seeking information. That may not seem like a big deal in today’s surveillance society, where we perceive privacy as impossible. Libraries at least take steps to try to maintain that privacy, such as not keeping records for the police to search, where corporations generally take no such safeguards. This means that those companies are not providing the few protections that libraries are still able to offer, and they are actually replacing libraries’ place in society. And it all happened so fast and so easily that no one really misses libraries.
How did this happen? First, libraries are generally underfunded and always on the lookout for ways to save money. It’s arguable they had a virtual budgetary gun to their head and weren’t able to make a rational decision. Regardless of motivation, libraries chose their budgets over their duties to society. They made poor purchasing decisions. Instead of investing in homegrown technology that would have preserved their duties, they decided to buy off-the-shelf options from for-profit corporations.
The legal industry still has time to avoid this error. It’s time for the legal industry to start treating technology as essential infrastructure and funding its development. Instead of “us vs. them” we should start thinking of technology as “ours” and make tools that support the critical duties of the legal profession. The best option is for bar associations, law schools, and non-profits (possibly backed by BigLaw) to create free and open source software (FOSS) for use by all attorneys, from solo practitioners to AmLaw 100 firms.
It sounds crazy and overly idealistic, but there’s actually some precedent for it. A little over 45 years ago, the Ohio Bar Association began development of a legal research system for use by attorneys because they knew lawyers were tired of tech companies over-promising and under-delivering and they wanted a product developed with lawyer professional standards in mind. Of course, this system became so successful that they sold out and it became what we know as LexisNexis, but imagine if they kept a free- or low-cost version of it.
Another example is the Knight-Mozilla Open News fellows program. Like law and libraries, the news media world has faced challenges and opportunities presented by innovations in technology. They also have duties and obligations to society that are being wiped out by newcomers to the market. OpenNews funds programmers and places them in working newsrooms. This allows programmers to learn of the needs of journalists and inspires them to make tools that are actually useful and mesh well with the needs of the journalism industry. Best of all, all of the tools they produce are FOSS, and they develop in the open so that others can replicate what they do.
So, not to go all Cassandra, but libraries—an industry with a duty to society and under considerable economic pressure—were offered a lifesaver in the form of technological advances but ended up failing their duties and are now slowly getting pushed into extinction. If it happened to libraries, a millennia-old institution that everyone says they love, it could happen to lawyers too.