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JILT 1996 (3) - An Excerpt from The Future of Law

An Excerpt From
Richard Susskind's

The Future of Law (1996)

ISBN 0-19-826007-5

by permission of Oxford University Press

©Richard Susskind

Introduction

It is said that one of the world's leading manufacturers of electric power tools invites its new executives to attend an induction course, at the opening session of which they are urged to consider a slide projected onto a large wall screen. The image put before them is of a gleaming electric drill and the executives are asked if this is what the company sells.

The executives look uncertainly around one another and tend as a group to concede that, yes, this is indeed what the company sells. It seems like a safe bet. They are immediately challenged by the next slide, however, that of a photograph of a hole, neatly drilled in a wall.

"That is what we sell", the trainers suggest with some considerable satisfaction. "Very few of our customers are passionately committed to the deployment of electric power tools in their homes. They want holes. And it is your jobs as executives in this corporation to find ever more competitive, efficient, and imaginative ways of giving our customers what they want, of putting holes in their walls".

The suitably humbled executives are urged in this way to think about commercial ends not means; to focus on the needs of their customers and not to succumb to tunnel visioned, corporate enthusiasm for a particular (and perhaps quite transient) product range.

The message

There is a crucial message here for lawyers and indeed for every individual involved with the administration of law. For it is surely doubtful that clients and other citizens who become entangled in the machinations of the legal system are irreversibly tied to the way in which the law is currently administered - to solicitors in offices; to barristers and judges in the courts; to legal textbooks, journals and law libraries; and to the existing legislative and administrative processes.

In fact, when most lay people encounter the law, they do so with a fairly clear end purpose in mind and are not so concerned with the nature of the justice system generally. They might, for example, want to make a will, seek a divorce, recover a bad debt, rent out a room, settle a boundary dispute, claim compensation, set up a business, buy or sell a home, or pursue any number of courses of action that they suspect have a legal dimension. Commercial bodies may have more complex requirements. They might want to know if there are legal obstacles, such as regulations, standing in the way of some proposed transaction or project. Or they perhaps need their position in a deal secured through some contractual arrangement. Or, again, a dispute may have arisen, on which advice is sought.

In any of these or similar events, involving individual citizens or business concerns, there is a demand for the input of legal knowledge and experience. Traditionally, lawyers have provided this input by offering an advisory service on a consultative basis. But what if similar legal input could be achieved in some other fashion? Would these potential clients jump to reject this different form of legal service, simply because it involved a change from the past? Generally, they would surely not be too concerned about any departure from tradition, so long as the service to be delivered were cheaper, quicker or better. If clients could choose to have legal knowledge and expertise conveyed to them in some improved way, they would probably welcome such an opportunity.

The challenge

This sets a major challenge for today's lawyers, in the ever more competitive market for legal services. The challenge is to investigate and devise innovative techniques for the provision of legal information, guidance, knowledge and expertise; to develop new ways of meeting clients' needs and in so doing to think in terms of holes not drills.

And one main theme of this book is that modern information technologies can and should provide the basis of, and even the catalyst for, the emergence of a quite different kind of legal service. Beyond automating and streamlining traditional ways of providing legal advice, it is argued that information technology (IT) will eventually help reengineer the entire legal process and result in a major change in the predominant way that legal services are delivered and justice is administered.

I envisage that legal work will shift from being an advisory service to becoming, in large part, a form of information service, a kind of legal service which might meet most of the needs of individual citizens and businesses and yet differ markedly from the traditional means by which legal counsel has been imparted. A vast, latent, legal market will emerge on the so-called information superhighway, giving everyone (and not just lawyers) ready and inexpensive access to legal products and information services. The focus of these services will be dispute pre-emption based on readily available legal guidance rather than dispute resolution in the courts; and legal risk management instead of legal problem solving. In the global information society, I claim, IT will help integrate the law with business and domestic life.

For members of the legal profession, I have an even more radical message than the mere foresight of radical change in the practice of law and the administration of justice. I claim throughout the book that lawyers' failure to embrace the techniques and applications of IT discussed here will result, in due course, in their providing a substantial disservice to the community. And for lawyers' businesses, it may eventually mean commercial suicide.

For whom is this book?

But the messages of the book are intended for a wider audience than its likely readership of lawyers and members of the legal profession. While it is tempting to say that this book is also for clients of lawyers, to use this terminology would itself beg one of the central questions confronted here. For the very word, "client",

suggests an arrangement whereby a legal adviser is retained to provide an advisory service to a client on some fairly particular matter on a more or less agreed financial basis.

In the world anticipated here, in contrast, this basic set-up is replaced by the provision of legal information services, delivered through advanced computer and telecommunications technologies. On this model, the client becomes a user; the lawyer becomes a source of legal information (a legal information engineer); and the

service is developed and marketed by a provider (who may or may not be a lawyer). The information itself will be presented in a way which is intended to be of more general applicability than traditional advice. And the cost of this reusable information will hardly be related to the number of hours spent by the lawyers in its compilation.

Accordingly, the book is intended to stimulate the interests of the likely users of legal information services of tomorrow and to discuss why fundamental change is afoot in the legal profession and the world of IT. It suggests how these changes might manifest themselves in the context of the administration of law, and what the consequences, opportunities and challenges might be for all concerned.

Little knowledge of the law or information technology is assumed beyond that expected today of any competent business executive, civil servant or professional adviser. This is neither a legal textbook nor a computer manual. Legal and technology jargon has been kept to a minimum, so that business readers who read of legal and technical developments in the national press, and are at home with that level of debate, should be comfortable with the language and concepts discussed here.

I have set out to follow the arguments wherever they lead, even if they may be unsettling or damaging for lawyers tied to traditions of the past. Radical change for lawyers is foreseen here, as indeed is the demise of many of those routine legal functions that today remain their province.

To be frank, I do not believe the law is there to support the livelihoods of those who administer it. Productive employment should be a by-product - an effect and not the cause - of the legal infrastructure in place in society. If the demands and interests of society, and those of commerce and individuals, bring about a beneficial shift in legal infrastructure, lawyers must call upon or develop their entrepreneurial talents in aligning their skills with the new order if they wish to continue to make a living.

The basis of the arguments

No matter who might choose to read the book, it is important to be clear about the nature and the basis of the claims and arguments that are developed here. The foundations of the spread of allegations and predictions that I make are a fairly wide range of research and experience, based on a variety of theories.

In its theoretical parts, the book tries to describe our current position and predicaments and seeks then to explain these in a systematic manner. In that context, I identify a number of very serious problems with contemporary legal systems and the way in which the law is administered. It transpires that IT can go some considerable way to remedying these shortcomings.

A vision of legal service in the future is therefore evolved and so the book in this respect seeks to go beyond description and explanation and predict what is likely to befall us. Where the book takes on a more practical orientation, the emphasis then shifts again, from explanation and prediction towards recommendation , in areas such as strategy, culture, finance and education. And it is important to add that most of the changes which I regard here as likely are ones that I also welcome, from a social, moral and political point of view. Although I have tried to disentangle my predictions from my preferences, I fear the reader may have some extra work to do here.

While my preferences rely on what I like to think is a fairly rich theoretical foundation (political, legal, management and information theory), the more arcane and esoteric materials on which they are based are confined to the bibliographical references at the end, if only to put the work in its broader setting and to keep the scholarly critics at bay. In any event, the book is better regarded and read as a broad brush polemic than a value-free piece of high scholarship.

For those who are sceptical about, or simply not interested in, arid theory and enjoy apparently harder facts and figures, the book may be seen to be at its most rigorous where I have relied on the findings of a variety of more or less robust, empirical research projects conducted and published by others. Through questionnaires, interviews and investigative work, these seek to lay out what is actually happening in the world of IT and of law. From these, we can discern some indicative trends in computer use within the legal profession, subject, however, to the qualifications that we must attach to any such studies which seek to report on the realities of the commercial world (I have concerns, for example, about the vested interests of those who respond, the commercial pressures that result in exaggerated statements of achievement, the validity of the statistical samples selected and the tendentious nature of the particular inquiries made).

More anecdotally perhaps, but with greater conviction, much that is said here is advanced on the strength of my own practical experience, as an in-house adviser and management board member of an international law firm which has committed itself wholeheartedly to its investment in IT and as an external adviser to a wide range of lawyers, including solicitors, barristers, judges and legal advisers working in-house within companies and government departments. I have seen all manner of lawyers address the challenges of their future and grapple with IT - some with spectacular success, others to staggeringly poor effect - and have learned much from this exposure.

I have to add, in all honesty, that much of what is also said here is unashamedly speculative. I have studied IT generally and its application in a number of industries and professions, I have pondered over the challenges facing lawyers and the law and have generated a framework that seems to explain much of what is going on and goes further by offering the basis for an improved legal infrastructure for society.

In all, then, the book is best regarded as no more than a tentative hypothesis about the future of law and the impact of IT, which may serve, if nothing else, as a provocative starting point for more informed debate on developments which go to the core of society.

The scope of the book

The hypothesis itself, however, is limited in scope. To the extent that much of what is said is oriented towards the legal systems of the United Kingdom, the arguments bear directly on all Anglo-American common law systems. I would hope that readers from the continental tradition (most European countries, for example) will also find some of the central themes to be relevant to their work - in some ways, I argue in the end, their current methods and practices will in part be embraced by common law jurisdictions in the future because of the influence of IT.

Another point of clarification may also help to establish the scope of the book - although intimately connected with computers and technology, this book is not about the issues of substantive law which IT has generated, for instance, those of privacy and data protection, computer misuse, copyright and software protection. Nor does

it address the more general question of the changes in substantive law which will need to be introduced to meet the demands of the digital world. Rather, this book is about the manner of the administration of law and justice, the working practices of those involved, and the ways in which these may change in the future as a result of current and emerging technologies.

Finally, a word about timing is in order. If I have learned anything over the years about IT in the law it is that new developments take far longer to move from the research laboratory to the marketplace than might be expected. In optimism or perhaps naivety, I thought in the mid-1980s, for example, that the widespread use of

expert systems in law was just around the corner. It has turned out to be a rather larger corner than I had conjectured. For a variety of reasons (technical, commercial, cultural), that particular technology has not yet been embraced with the fervour I had anticipated. And so it will be, I have little doubt, with many of the other applications and enabling techniques discussed here.

The world of law discussed here will probably emerge in the next century not this one; but just precisely when, it would be silly to guess. I am certain there will be radical change. When and how, I leave to the reader's imagination and motivation, hoping that the ideas here provoke informed debate and then action. That said, I suspect the technology will take longer in coming than the IT evangelists anticipate or prefer although it will doubtless loom large far too soon for the IT atheists. My general feel is that the major shift in a paradigm which I project will come about over the next 20 years or so; with innumerable advances and changes along the way.

The title and subtitle of the book, suggesting as they do that the future of law will be determined by information technology, may seem to be going rather too far. I am not suggesting, however, that IT is the only factor which will determine the future of law. Instead, I am claiming that the practice of law and administration of justice will be more radically affected in the coming 50 years by IT than by any other single factor of which we can be aware today.

In sum, this book is not simply about IT and the way in which lawyers have invested and exploited computers and telecommunications. For there is a challenge here to the way in which lawyers contribute to society, to the manner in which they provide their services, to their working practices, their adaptability and the culture of the professions generally. Ultimately it is a moral, social and political challenge to the way in which the law, as administered today, meets the needs of those in whose name it ought to be promulgated.

How to use the book

Finally, by way of introduction, is it important that I offer some guidance on how to use the book.

Although my hope and preference is that it should be read sequentially from beginning to end (the arguments flow and develop more coherently if followed in this way), I accept that the book is something of a mixed bag and readers may prefer to dip only into those parts which appear to interest them most. For those who choose

to adopt this latter approach I have included numerous cross-references which should help clarify some central terms and arguments that have been introduced in portions of the book to which such readers may not have been exposed.

As to the structure and content of the book, it is divided into four major parts.

Part One - The Theory

In Part One, I take a step back from legal practice and operational technology and focus instead on theory, in an effort to explain past, present and future trends. In Chapter One, I consider various aspects of the law and legal systems and I point to a series of fundamental social and moral problems which later analysis will show can be overcome through IT. In Chapter Two, I introduce IT itself, largely without reference to the law at that stage, but principally to present a non-technical appraisal of its impact on commerce and society. And in Chapter Three, I bring the law and IT together in a series of discussions which begin to explain the emergence of legal service as an information service.

Part One therefore is concerned with the big picture - an information society which will bring a much improved legal infrastructure.

Part Two - The Technologies

In the second part, my principal concern is with the details of the technologies which enable the fundamental changes discussed throughout the book. I try here, in strictly

non-technical terms, to explain I.T. and all the jargon which is so freely bandied around nowadays. In Chapter Four my aim is to introduce the variety of enabling techniques which are likely to lie at the heart of legal systems of the future, while Chapter Five shows how these various techniques will support what will become, in due course, the most significant applications of IT both for lawyers and non-lawyers.

Part Two is provided, then, with the slightly perplexed reader in mind - to help the lawyer or the business manager, for example, to come to grips with the basic technical issues.

Part Three - The Practicalities

The third part of the book is intensely practical. In Chapter Six, I lay out a number of case studies, based largely on personal experience of operational systems. These support and clarify the earlier arguments of the book. Then, in Chapter Seven, I offer some guidance on the issues which are vital for any organisation intent on introducing new technology - strategy, planning, management and training.

So Part Three is recommended reading for the action-oriented reader or for those whose livelihood in some way depends on the law.

Part Four - The Vision

In the fourth and final part, I sketch out, in Chapter Eight, my overall vision of the future of law and suggest the implications of this for all who are affected by it - lawyers, judges, businesses and citizens.

Part Four is for readers who enjoy speculating about how our world and our lawyers might be in many years to come.

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