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Washington Lawyer magazine
The Paperless Profession
By Joan Indiana Rigdon
Changes in technology promise to revolutionize the legal workplace
Over the course of the past decade, law professors at several universities around the country have told their students that they do not need to purchase any textbooks because all course materials are available online and all research is to be done on the Internet. These “paperless” classes, where all documents and decisions move online, offer a glimpse of the profession’s technology-driven future—where legal proceedings may one day take place over the Internet instead of in courthouses and agencies.
The events of September 11 are illustrative. When two planes hijacked by terrorists felled the twin towers of the World Trade Center, thousands of pieces of paper came fluttering down among the ashes. Then a curious thing happened. In the midst of unspeakable tragedy, several financial service firms began to conduct business the very next day from temporary offices. They were able to continue functioning because they had backed up their data on off-site computers. But many law firms and law offices had not. As a consequence, the affected lawyers had to petition for relief from various filing deadlines so that they would have time to reconstruct their records. Meanwhile, the U.S. Equal Employment Opportunity Commission’s legal staff in New York had to ask filers to resend documents that had been destroyed in the attack, and they estimated that it would take at least six months to restore the records.
These events illustrate that the legal profession is straddling a huge temporal chasm, with a tradition of paper, stamps, and seals on one side and visions of a digital workplace on the other. How far and fast the profession moves from one side to the other will affect what lawyers do: how they compete, how they bill, how well they serve clients, how they pursue justice.
To better understand what it will take to make this transition, The Washington Lawyer spoke with several lawyers and judges who have spent much of their career experimenting with new technologies that promise to revolutionize the legal workplace. Ranging from solo practitioners to lawyers who quit their firm to work at technology start-ups, all of our interviewees agree that the profession has already moved a long way from its paper-bound past, and that it needs to continue moving forward. However, they have very different ideas about what “forward” means.
Days of Old
Anyone who has been online for 10 years and still has trouble coping with computer crashes will have a difficult time appreciating how much technology has done for the profession of law. It has done a lot, especially when you consider what life as a lawyer was like a few decades ago.
Judge James Robertson of the U.S. District Court for the District of Columbia recalls the mid-1960s, when documents were prepared one page at a time with “steno masks,” carbon paper with a plastic cover. Small corrections were made by dissolving the plastic with a chemical that smelled like nail polish remover, he recalls, and for larger corrections the whole page had to be retyped. If you had a 35-page brief to file on deadline, you and your secretaries gathered around a conference table with 35 stacks of paper, and collated copies by making the rounds of the table.
Now lawyers have word processing, laser printing, and PowerPoint. E-mail allows them to communicate cheaply with clients around the world, regardless of time zone. Cell phones make them reachable, for better or worse, day or night. Wireless, pocket-sized e-mail devices like BlackBerry allow them to send and retrieve e-mail from places where they can’t receive cell phone calls or talk, such as in court or at their children’s soccer games. Conference calls and videoconferencing allow lawyers to meet quickly, sans travel time and costs. Instant messaging allows them to immediately and quietly strategize with one another during larger meetings. Electronic research services Lexis and Westlaw make it possible to research cases from anywhere with an Internet connection. And now that many courts and regulatory agencies offer live video feeds of hearings and electronic filing, lawyers can do a lot of their work online.
In general, all this technology has improved the practice of law by making it more efficient. As solo practitioner Joel Bennett puts it, “My hourly rate gets higher, but the amount of time I spend doing things gets lower.”
But as with all new technologies, efficient doesn’t always mean better. For instance, some lawyers say it’s dangerous to Shepardize cases electronically, because that means relying on an electronic research service to decide whether or not a case has been distinguished.
Then there’s the problem of bad writing. Robertson, otherwise a major technology fan, thinks word processing has made lawyers’ writing worse.
“There is no limit to how much you can put in a paper these days,” he says. “You can cut and paste from online. You can write footnotes until the cows come home. When the secretaries were typing [filings] out by hand and running them off on steno masks and collating documents around the table, there was something about that that made you more succinct. And succinct is a word that seems to have disappeared among lawyers.”
But these are only caveats. Here is a look at some of the technologies that are making the greatest impact on the practice of law.
If there is any lawyer who can say what electronic case filing has done for the practice of law, it is Andrea Miano, an associate at Dewey Ballantine LLP, and also chair of the D.C. Bar’s Computer and Telecommunications Law Section.
In the summer of 1996, when she was working for a small D.C. firm and eight and a half months pregnant with her first child, Miano found herself racing to meet a 5 p.m. filing deadline for the Federal Communications Commission (FCC). She grabbed then-paralegal Bill Hackett (now senior manager of regulatory compliance for Western Wireless Corporation), jumped in her car, and started nosing through rush hour. Destination: Gettysburg, Pennsylvania, two and a half hours away. As Miano drove, Hackett assembled 13 filings, each with scads of exhibits, while brushing away hair from Miano’s dog.
“I still have staples and binder clips under my front seat,” Miano says. “And I (was) breaking every speed limit trying to get there.”
She arrived in Gettysburg with minutes to spare, but couldn’t find the FCC. She called for directions. Luckily her firm had called ahead.
“Are you the pregnant one?” the clerk asked.
Miano affirmed and got a sweet reply: “You slow down. We’ll stay open for you.” And they did.
Miano still relies on the mercy of clerks, but not as often now. “It’s great that we have electronic filing,” she says.
Electronic filing allows litigants and judges to send and receive filings, motions, orders, and other documents electronically, instead of hauling them to courthouses or regulatory agencies or sending them through the mail. It also eliminates the need for duplicates. Once a document is uploaded, the court’s software automatically and immediately distributes electronic copies to everyone who is supposed to receive them. This way litigants can view documents as soon as they are uploaded. Judges say they can sometimes render and upload decisions within minutes instead of days.
E-filing cuts down on the cost and trouble of storing and retrieving paper. Judge Brook Hedge, who presides over the domestic violence unit at D.C. Superior Court, and who is helping to implement e-filing at the court, says she has had to stop hearings for up to half an hour while aides searched for missing files. That has a domino effect. “If I pull my law clerk or my secretary” to do the search, she says, “that means they’re not typing my opinions.”
Although some courts, including U.S. district courts, have decided to develop their software in-house, there’s a much cheaper way. More than two dozen software vendors including CourtLink offer e-filing software for free; they make money by charging users a fee (CourtLink charges 10 cents a page) for every page filed or served; in general, parties to a lawsuit may view any document e-filed in that lawsuit for free.
Since Superior Court began accepting e-filing for its Civil I cases last May, about 75,000 documents, with a total of 225,000 pages, have been electronically filed or served with the court, says Hedge. Barring any major glitches, the court hopes to expand e-filing to higher volume types of cases, including landlord–tenant and family law.
Still, e-filing is only slowly coming online. Of 90 U.S. bankruptcy courts, only 22 accept e-filing, according to Gary Bockweg of the Administrative Office of the U.S. Courts; only seven of 94 U.S. district courts accept e-filing; and no federal appellate courts do. Bockweg says the federal government’s goal is to have all of its courts accept e-filing by February 2005.
Meanwhile, various levels of courts in the District of Columbia and 14 states offer some form of e-filing, according to the National Center for State Courts. Others put the count at 25 states for courts that accept e-filing, including Maryland and Virginia.
Several factors are slowing down the rollout of e-filing. First, if a court wants to integrate e-filing with a case management system, that costs money and time. Sometimes the obstacles are too great. Orange County Superior Court of California, for one, suspended its work on a full-fledged e-filing system last September because of “technological and business process complexities,” according to a court press release.
Another glitch is security. If litigants can view e-filings anytime from any Internet-connected computer, so can anyone. Because unsealed documents filed in court are public anyway, so far that hasn’t seemed too threatening. But now some people fear that “some kook can sit up all night in a basement and look up all kinds of files,” Robertson says, citing an objection he heard when discussing e-filing with other federal judges who are on a subcommittee to implement e-filing in the federal judiciary. After some debate, the group decided that electronically filed documents will not include full social security numbers, and that anyone who wants to view e-filed federal court documents will have to pay seven cents per page (except for litigants who want to view documents in their own cases, the first page view is free). The judges hope the fees will deter mischief makers.
Then there’s the fear that a criminal could hack into the system and change a judge’s order. Robertson is aware of this, but he says firewalls and security software now in place will deter most hacking efforts.
If that seems like small comfort, consider the alternative. Paper documents aren’t very secure now. Anyone can walk into court, check out a case folder, and depending on the court, quietly add, remove, or alter documents without being noticed. A fire or hurricane could physically destroy a court’s paper documents. And sloppy filing and clerical errors already result in lost files, or even changed orders, since the paper process forces clerks to reenter information from paper into court computers. D.C. Superior Court Chief Judge Rufus G. King III estimates that in general, “in busy courts with a docket of 60 cases [a day], there may be one or two cases [a day] where there’s an error.”
“People could destroy [and] manipulate and forge documents even before there were electronic materials,” notes Andrew H. Marks, a partner at Crowell & Moring LLP. “I could make the argument that electronics will let you catch those things more quickly,” by allowing you to compare more readily the text of an original and a copy, he adds.
Finally, there’s the problem of cultural adjustment. Peter R. Krakaur, knowledge manager and of counsel for Brobeck Phleger & Harrison LLP in San Francisco, California, recently hosted a panel titled “E-Filing: The Horror?” at the American Bar Association’s TechShow. Krakaur swears that e-filing will eventually be a major boon. But he can’t find much nice to say about it now.
Krakaur complains that e-filing saves a lot of time and cost for courts partly by foisting extra work onto attorneys. To wit, Krakaur misses the recent past, when attorneys could finish a filing at 4:15, hand it to a courier, and wash their hands of it. Now attorneys have to be technically savvy enough to know how to prepare a document for e-filing.
“It’s a little scary to me to presume that the attorney has all this technological proficiency when really what they should be focusing on is the representation of the client and the practice of law,” he says.
Krakaur also complains that it sometimes takes a long time to convert filings to the right format, and that when e-filing systems crash, attorneys are forced to file the old way anyway. But some courts make provisions for these glitches. D.C. Superior Court, for one, has a midnight filing deadline for e-filings (as opposed to the 5 p.m. paper deadline) and grants extensions to anyone who has trouble filing because of problems with CourtLink’s computers.
The Wired Courtroom
“The use of electronic devices in the courtroom without express permission from the court is prohibited.”
Such words have appeared for decades outside courtrooms all over the country. But strangely, the same words appear outside courtroom 16 in the U.S. District Court for the District of Columbia. In fact, despite the sign’s warning, Judge Robertson’s room is one of two in this court (the other belongs to Chief Judge Thomas F. Hogan) that have been specially equipped to host electronic devices, ranging from laptops to videoconferencing equipment. For the record, Robertson says the note refers to tape recorders and cell phones, but should probably be amended.
Robertson recalls that courtroom 16 was being planned when he joined the court in 1995. As tempting as it was to add as many toys as possible—like those of famed courtroom 21 at the William & Mary School of Law in Williamsburg, Virginia—Robertson’s court decided to keep it simple. Courtroom 16 has a system that can project an image of any paper, photograph, or small object onto large monitors around the courtroom. Lawyers or witnesses can draw on the image, and those drawings are projected in real time, much like the Telestrator technology that football announcers use.
In addition to large video monitors, the court has six small video monitors in the jury box, extra laptop ports on the conference tables, three cameras that can be used for videoconferencing, and Internet-connected computers for the judge and law clerk. Among other things, these computers can be used to view whatever is being displayed on the larger video monitors, to send and receive e-mail, or to view the transcript of the trial as it is being typed by a court reporter.
The cost to equip courtroom 16 was surprisingly low: about $120,000, says John Cramer, the courtroom technology administrator. Overall, says Robertson, “What we have in our two electronic courtrooms may not be state of the art, but it is certainly ‘state of the practice’ and then some.”
For those courts that can’t afford digital enhancements, some companies are offering mobile solutions, such as Mediatech of Holly Hill, Florida, maker of TrialMate. TrialMate is an electronic kit the size of a steamer trunk that lawyers can use to project images and Telestrator-style drawings onto the images, among other things. Developed in consultation with the Courtroom of the Future project for the James E. Rogers College of Law at the University of Arizona, the kit includes a flat panel display and must be hooked up to a laptop to work. Price tag: $13,000.
The goal of courtroom technology is to make courtroom presentations more powerful and interesting, to enable the judge to analyze the information presented more efficiently, and to grant litigants better access to courts. To a certain extent, those benefits have already come to pass. Projecting documents is a lot more efficient than passing paper around. And judges can zap e-mail requests to law clerks without holding up court as they pass notes from the bench. Also judges don’t have to stop court to review anything they missed hearing—they can quietly review the real-time transcript on their PC.
Videoconferencing is more of a mixed bag, though. It does sometimes save substantial amounts of time and money in cases where witnesses can’t afford to appear in person. Robertson has had witnesses testify via video from Bangkok, Budapest, and Jakarta.
Videoconferencing also gives some low-income litigants better access to the courts. D.C. Superior Court, for example, estimates that 65 percent of the people who file with the court for civil protection orders live in Anacostia, and many of those people are mothers with low income and no day care. To obtain temporary restraining orders, these women often have to haul their children to court several times. To make the process easier, the Superior Court is working with community activists and Greater Southeast Community Hospital to set up a teleconferencing center at the hospital so women can petition for temporary restraining orders without having to go to court.
Once the center is running (it was stalled at press time for lack of funding), Judge Hedge expects to see fewer women bringing their children into court. “I had one woman breast feeding in the courtroom,” says Hedge. “She had three or four other kids with her. . . . [With the teleconference] I’m really getting the same information I could get as if they were standing in front of me.”
But for most other uses, lawyers and juries find videoconferencing clunky. There is usually a delay of a few seconds, so neither side can speak and hear at the same time. And juries often find video testimony less credible.
Abbey G. Hairston, a partner specializing in employment discrimination law at Seyfarth Shaw, recalls one case where she presented videotaped testimony. “I had a very good witness, but the room was hot, so he kept sweating. It looked like he was lying on the videotape.”
What’s more, some judges and juries get bored by too much video, especially if the video is a review of previous court proceedings that could be viewed more quickly in text.
Other courtroom technologies can be distracting when they aren’t used properly. Robertson, for one, says he has curtailed his e-mail use from the bench. “I determined that I wasn’t quite as good as I thought at multitasking,” he says.
Some other interesting technologies sound promising, but aren’t really useful yet. In Arizona, for example, six Maricopa County courts use CD-ROM or VHS audio-video recordings as their only transcripts of court proceedings, says Craig Gildersleeve, senior information technology consultant for Maricopa County Superior Court. Anyone who brings a CD to court can receive a copy of the recording for free.
Eventually, the CD records will become very handy, says Winton Woods, director of the University of Arizona’s Courtroom of the Future project. “Wouldn’t it be nice if I said, ‘I want to remind you of Ms. Jones’s testimony, in which she said . . .’ and I click [to show a video clip of her making a certain statement], and now she’s just told me something very different? Which one is the truth?” he says. “That’s going to happen. But it hasn’t happened yet.”
The reason why it hasn’t happened yet is because, although CDs can be searched for a particular event, like the start or end of a certain witness’s testimony, they can’t be searched for text, unless lawyers pony up several hundreds of dollars an hour to companies that transcribe the audio portion of the proceedings, and then digitally synchronize that transcript with the video.
Although it’s not yet clear how technology will change the actual administration of justice, it has already had a major impact on the business of law by leveling the playing field between solo practitioners and big firms. Some solo practitioners say that technology as mundane as payroll and dictation software has cut overhead to the point where they no longer need secretaries. Meanwhile, the price of electronic legal research services has plummeted to a level solo practitioners can afford. More recently, scanning technology has allowed solo practitioners and small firms to handle cases involving tens of thousands of pages of documents.
But it takes a technically savvy and zealous solo practitioner to translate these technologies to get a leg up. Consider Joel Bennett, who specializes in employment discrimination law in Washington, D.C. Bennett says technology has cut his overhead down to about 25 percent of gross receipts, compared with about double that for some large firms.
His technology arsenal is relatively simple. He has seven computers between home and office (he keeps the old one whenever he upgrades), a fax, a scanner, a cell phone, a regular e-mail account, and a Yahoo! account he uses to check e-mail when he’s on vacation. He researches cases on the Web and through Westlaw, but saves extensive research for the library, where it’s free.
And yes, he clips coupons. “My wife says I’m the cheapest person she knows,” he says.
Bennett figures he is more technologically nimble than large firms. “In 1976 I couldn’t have the same equipment as the big boys,” he says. “Today my equipment is equal to or better than sometimes big law firms’, because they are so huge. They are still behind in [operating systems]. If I want to upgrade my computer, I walk a block to Staples and I’ve got a new computer.”
But there are places where Bennett draws the line. He prefers to read hard copy, so for him “the paperless office is a myth.” And he doesn’t give out his cell phone number because “I don’t want to be that on. I didn’t become a doctor or an OB-GYN for a good reason.”
If Bennett were willing to try the paperless route, though, maybe he could do more. Consider David Masters, a solo practitioner based in Montrose, Colorado. Masters does have a paralegal and an administrative assistant, but he also has only two drawers of documents. He does this by scanning almost every paper that comes into his office, and then returning the original, or sending it on. He runs the scanned documents through OCR, or optical character recognition software, so that he can digitally search the text.
“If you’ve got a case with 10,000 pages [of paper documents], you need a bunch of people working on that case to be able to keep track of where all of those documents are,” he says. But thanks to digitization, “I can find any document in 30 seconds or less.”
But the economies of scale don’t work in truly huge cases. In cases involving millions of pages of documents, large firms have the advantage because they can hire outside vendors to scan and index the documents digitally. Also, in cases involving electronic discovery, it can be extremely expensive to compel witnesses to turn over electronic evidence, much less sift through it.
The people who think the most about the future are not so impressed with what technology has done for the practice of law so far. One is Ron Friedmann, chief information officer at Mintz Levin Cohn Ferris Glovsky and Popeo, P.C.
“While we have seen tremendous changes in the last 10 years, by and large what we’ve done is automate the practice of law,” says Friedmann. “We have taken work and tasks we’ve done historically and made them faster, cheaper, and more efficient.” But lawyers, he adds, haven’t changed “how we deliver services, or how we think about the law.”
At least not yet. But a few major changes are under consideration. Christopher Bennett, a lawyer who is also the founding chief executive of NetInterests, Inc., an Internet technology firm operating under the University of Maryland’s Technology Advancement Program, sees a few interesting possibilities, including the idea that firms may eventually charge different rates for different types of consultation: less for e-mail than face to face, and even less to clients who are willing to get their legal advice from automated software provided by the firm.
That has many practitioners alarmed. Robert S. Freideman, a partner at Freideman, Irelan, Ward & Lamberton, P.C., is adamantly opposed to the idea of charging differently on the basis of level of human interaction. “When you’re in an attorney–client relationship, you’re bound to provide the same advice,” he says. “And the media of how the advice gets to the client is irrelevant. With some of these services that provide advice over the Internet, there’s the danger that people don’t get enough advice, or something that’s offered as preliminary advice is taken as last word.”
But automated legal advice has already become fairly common in simpler areas of law, such as writing basic wills or changing names. These programs work in much the same way that Intuit’s TurboTax does to help people prepare taxes. To a certain extent, this do-it-yourself legal software eats away at the low end of law firms’ business.
Some law firms think they have found a way to work with the software by taking the technology one step further. If they can develop their own software to help existing clients navigate areas of law where the rules are very clear-cut, maybe those clients will tap the law firm for full-service legal representation when their needs exceed the limits of the software.
By offering such software, firms are not saying that lawyers are no longer experts, says David Johnson, recently retired head of the e-group at Wilmer, Cutler & Pickering and founder of VirtualWorkroom.com, Inc., a Falls Church, Virginia, developer of workgroup software. Rather they are saying that “sometimes your expertise can be dispensed while you’re not there. All firms are terrified by this. Which is why we have to rely on outside [nonlegal] firms to drive us toward that.”
Not all law firms are terrified. Mintz Levin, for one, is in the process of rolling out test versions of advice software for certain areas of law, including Occupational Safety and Health Administration regulations.
Ron Friedmann explains how this business model could work for law firms, citing as an example an advertising compliance adviser. Say the client is a large company that sells hundreds of over-the-counter products. The company may have hundreds of product managers, each responsible for advertising his or her own products. But the company’s general counsel doesn’t have time to consult individually with each manager over every ad. In this case the firm could provide the company with interview-driven software, which the product managers could use to assess the legality of their own ads. The software would be tailored for different jurisdictional laws, and would be smart enough to tell managers when to consult a lawyer for more information.
Friedmann figures such software wouldn’t cannibalize the low end of Mintz Levin’s business because the firm doesn’t generally do legal consultation with manager-level employees. Instead, the firm could charge a subscription fee for the software, and if all goes well, the software would bring in incremental business.
Who needs documents? Right now the legal profession is built around preparing, filing, serving, and responding to documents. David Johnson thinks he has a better idea.
In several conversations with Judge Robertson, Johnson has advised him to “free yourself from the metaphor of the document.” Johnson explains that documents are static and computers are not. “It’s possible to think of the screen as something with which the user can interact. We’re moving away from the static notion of the printed opinion to a set of screens that are built with lawyers’ expertise, which are shared among people moving across people and courts.”
Christopher Bennett describes what this could mean for the judicial system. He sees a totally online court, where proceedings takes place in a chat format, with many windows on-screen, including windows for real-time video links to the judge, lawyers, and witnesses; a real-time text transcript; and maybe links to relevant points of law. The court would use passwords, fingerprints, or retinal scans to verify that the right people are admitted to the court.
Judge King says such a virtual court could be compelling for traffic or tax cases or billing disputes, but he doesn’t see it catching on otherwise. “If you’re going to be in a fight where you could end up losing some of your income or some of your freedom, you want a little bit of formality and ceremony,” he says. “You want to be in presence of a judge, be in presence of accused, face each other and deal with each other in a public setting.”
Some billing dispute resolution has already gone online. Cybersettle, Inc. of Mount Kisco, New York, offers clients a way to settle cases where liability has already been determined. In a double-blind bidding process, opposite sides key in the amounts for which they are willing to settle. When the amounts come within a certain range of each other, the computer splits the difference and the case is settled.
For now virtual trials seem light-years away. But anything is possible, when you consider that judges, lawyers, and software vendors continue to nudge the profession forward in small ways. And sometimes a small nudge goes a long way, as David Masters recently learned.
Late last year Masters had to file an answer brief with the Colorado Court of Appeals, which doesn’t accept e-filings. For fun he filed on both paper and CD. In “a little cover letter,” Masters says, he wrote something like, “We know you folks don’t have an e-filing program, but we thought you might want to take a look at it.” A few days later, the clerk of the court, John Doerner, called Masters, who thought he was in trouble. But he wasn’t: Doerner wanted to hear more.
As it turns out, the court was considering e-filing, but worried that it placed too much burden on lawyers. After Masters showed Doerner how cheap and easy it was to implement, the court, according to Doerner, was “much more enthusiastic about moving forward.”
Joan Indiana Rigdon is a freelance writer who has written for the Wall Street Journal and Red Herring magazine.