Rebooting Justice

Yesterday, I had an envelope in the mail from my dad.  I opened it up to find a photocopy of the “Opening Statement” of the Summer 2009 issue of Litigation, the official journal of that section of the American Bar Association.  The Litigation Section’s chair, Lorna G. Schofield, dedicated her essay to an observation of how, like so many industries, the legal profession is being challenged by the rapid innovation of the information age.

As a future lawyer (side note: I sent 12 of 15 law school applications last weekend!), it reassures me that at least the ABA’s leadership has recognized that lawyers, firms, and their clients need to adapt in order to survive.  But I found it even more encouraging that Schofield highlighted the need for the entire justice system — especially the Federal Rules of Civil Procedure, which were last updated in 1938 — to be refreshed for the present times.  I’d like to highlight a couple of her points and add my own thoughts as well.

The first area that Schofield specifically targets is the billable hour.  The billable hour system rewards firms and attorneys for the time spent working on a project.  While the rate can vary depending on the type of work performed, the rates typically do not reflect the value added by the work performed.  And it doesn’t even really make logical sense, as Evan Chesler noted in Forbes back in January: “If you are successful and win a case early on, you put yourself out of work. If you get bogged down in a land war in Asia, you make more money. That is frankly nuts.”  He went on to propose a system more similar to how a construction contractor operates:

For reasonable periods of time during the life of a lawsuit, say three months at a time, I should do what [a contractor] does: identify the client’s objectives, measure, calculate, build in a contingency and come back with a price. Once the price has been agreed upon, the billable hour should be irrelevant. The client will no longer be surprised by a whopper bill and met by the standard (albeit true) explanation that “litigation is unpredictable.”

Whether this is the approach that wins the day is up for question but, as Schofield concludes, “sooner or later, something has to give.”

Moving on from the billable hour, Schofield notes that the new generation of lawyers is organizing its workload and its information in new and different ways from the previous generations.  Using an anecdote, she notes that younger attorneys are no longer organizing evidence or information as a “story”, and instead are keeping key documents in their originally produced, bates-stamped order.  The takeaway is that as the tools for organizing and making sense of information become more sophisticated, we no longer have to rely on physical arrangement or sorting in order to retain a sense of sense or order.

This should not be lamented in my opinion, but celebrated and built upon.  The further into the information age we progress, the more information and data there will be to collect, understand, and present for consideration.  More and more, we will rely on tools to do that type of processing for us; what will be important from a human skills perspective is the ability to instruct those tools how to find and present what we need.

I spoke on the phone recently with Professor Fred Lederer at the William & Mary Law School.  In 1993, he helped start a program called the Center for Legal and Court Technology that “seeks to improve the administration of justice through the use of appropriate technology.  They recognized over fifteen years ago that the world’s judicial systems would need to keep pace with the rapid innovation that would arrive with the 21st century.  From the question of resolving disputes across multiple jurisdictions via videoconference, to figuring out the best means of conducting electronic discovery from data-saturated companies, the CLCT plays an important role in training new and veteran lawyers alike how to be better advocates in the information age.

Schofield concludes her essay by calling for a rebooting of some of our laws and the entirety of the justice system.  She highlights intellectual property law as a particular area of concern, noting that affairs have progressed to such a poor and confused state that content companies, in a vain attempt to protect themselves, feel forced to sue the very customers and partners they need to survive.  While this is also in large part a failure of imagination and innovation on the part of the content industries, the laws could be improved as well.

Of particular concern to Schofield is the ever-decreasing synchronization between the realities of the present and the Federal Rules of Civil Procedure, the court protocol for civil suits.  Schofield notes that 1938, the years the Rules were last refreshed, was the same year that the ball point pen was patented and that transatlantic air transportation was just a vision.  Now we live in a world where information is anywhere and everywhere at once, where employees work for companies headquartered on the other side of the planet, and where more or less everyone carries a small, constantly-connected computer in their pockets.  The Rules “speak of a 100-mile radius for service of subpoenas and the admissibility of hearsay statements by unavailable witnesses whose presence cannot be procured.”  Choice of venue and law are based on “anachronistic ideas of territorial jurisdiction and sovereignty.”  We are applying the procedures of pre-World War II to post-9/11.

The first of Google’s “Ten Things We Know To Be True” philosophy is “Focus on the user and all else will follow.”  The legal industry and the justice system would do well to follow this, whether they consider their “user” to be their client that should pay for the value received, or a citizen or company that deserves the fairest application of justice that is available.  Technology is meant to improve our lives, and that should include improving the protection and enforcement of rights as well.