The
Legal Marketplace of Ideas: Twenty-First Century Lawyers
(Speculation by Twentieth Century Minds)
Karen Kelly Grasso
Keith Throckmorton
This article ponders the pluses and minuses of technological change for attorneys. Before we get there, how about a glimpse of a possible future?
First, we do not live and die for "technology." "Technology," which many now take to mean computer-based equipment, differs only in magnitude from our ancestors’ manufacture of spear points and tanned hides. Technology is a tool, nothing more. Technology is subject to the same conditions for success as the hammer you buy at your local Sears (or at hammers.com). If it doesn't provide practical or aesthetic value, it will not be used. Technologies are adopted only when people choose to use them. The technological tools that emerge and thrive do so only because they are of use to us, either as lawyers or as members of a highly developed society. Once we adopt useful "technologies" there is no return. (Can you imagine using a draft horse and wagon, or curing a headache by having holes drilled in your skull to release the evil spirits?)
Second, technology is not inherently moral or immoral. The impact of a technology depends upon how it is used. Nuclear technology has presented the best 20th century example of this conundrum. While atomic weapons threaten to end lives in a fireball, atomic medicine has provided millions of patients with treatments to extend their lives, and for some, a cure for dread disease. Computer-based technologies present the same challenges. Computers have given us the research and analytical capabilities to reach new plateaus, but aren't the plateaus themselves. And, computers don’t guarantee that we have the wisdom to use the knowledge that they permit us to achieve.
The Human Genome Project is the first and most dramatic exploitation of the new "base level" computers have provided upon which we can build. The implications of genetic research are enormous, beyond our imagination. Genetic research may make it possible to stop the aging process, cure human disease and end hunger. We will have the capability, though perhaps not the desire, to engineer ourselves into a dramatically different race. We may choose not to do those things, but our decisions will be reviewed and reconstructed by our descendants, who will critique not only our technology but also our choices.
What does the future hold? We believe it is filled with realities more dramatic than fiction. People will eat plants grown in deserts and irrigated with salt water. They will carry credit card sized communications devices that function as data retrievers, videophones and 3-D projectors. The great majority of diseases will be eliminated. Crime will be reduced as root causes including hunger and addiction are removed. Our children will vacation on the moon while eating local foods. People will compete against machines for employment. Your stockbroker may be a computer that sifts past market trends and predicts future ones. Your doctor may be a software program that analyzes your symptoms and compares your condition with a database of all known human diseases. And yes, your lawyer, or even the judge that decides your case, may well be an artificially intelligent thinking machine.
You may pause and think, "The authors' are crazy." Before you decide on our sanity, consider that the technologies for all these predictions already exist in nascent form. The challenge to us is to ensure that the application of these technologies is tempered by wisdom.
What are the pluses and minuses for attorneys in all this? We cannot deny that there are some definite negatives for the legal community as it stands at the end of the 20th Century. Many attorneys have resisted computerization, or only grudgingly adopted it in the face of competitive pressures. In the past, those who resisted useful change were eventually put out of business. Only carriage makers who innovated by manufacturing auto bodies survived and prospered. Attorneys must overcome their fear of technology and embrace it, both to compete and to meet the needs of their clients who themselves are becoming more technologically sophisticated.
Technology may also reduce business opportunities. Wills, estate planning and contracts may be the most first areas where lawyers are replaced by sophisticated document assembly programs. Software now in use enables laymen to create these documents. Although users are warned that the resulting document should be checked by an attorney before use, many, if not most, do not. Attorneys may be relegated to reviewing machine created documents. When software becomes even more sophisticated, and with the Internet incorporating the experience and advice of others, review may also disappear as a source of revenue for attorneys. Trying to ignore this trend is not a wise long-term strategy. Lawyers will need to find ways to provide value to their client beyond these products. When people are able to achieve satisfactory results from the new software technology, the technology will have passed the same survival test the stone ax did thousands of years ago. NEW LEGAL COMPUTER TECHNOLOGIES WILL BE USED BECAUSE THEY WILL DELIVER PRACTICAL VALUE AND NO FORCE WILL BE ABLE TO PREVENT THEIR SPREAD. LAWYERS WILL NEED TO DEMONSTRATE THEIR CONTINUED RELEVANCE.
Another important difficulty for attorneys as technology takes root is the learning curve they face to master new technology. No longer will attorneys be able to survive on knowledge of the law and good business sense. Knowing how to apply computer technology will be as important as knowing how to read. Moreover, even for those who have others do the actual “technology” tasks for them, the penetration of technology into every aspect of society demands that attorneys understand its implications in order to competently advise their clients.
An additional threat is that the legal community will lose the input of many talented attorneys who may feel squeezed out of the profession in the face of rapid change. Many of these may be more senior attorneys who possess wisdom and sense that no computer can provide. They are also better positioned to identify the dangers in a blind adoption of technology without a careful consideration of its impact, since unlike those who have grown up with computer technology, they see the changes that it brings.
Finally, the application of technology to the law presents a whole array of challenges to the provision of justice. The increased role of technology threatens to make our legal system more inaccessible to those who lack the resources to use such technology. The pro se litigant in the 21st century may be unable to comply with requirements for electronic filing or Internet service. The solo practitioner may be unable to generate the sophisticated graphics and animations that become the norm in the courtroom. The wholesale automation of the legal system may threaten personal privacy as court records become much more accessible to the random browser.
But, as to the last, the issue is not technology, only wisdom. We, as lawyers, have a duty to shape the role that technology will play in the legal system. All of the new technologies that we can imagine— the Internet, e-mail, space travel, and genetic engineering — and those yet to be imagined, will create new opportunities and new obligations. We, as a society, decide what technologies to use based upon practical and aesthetic value. We, as a society, decide how to deal with the legal and ethical issues created by new technologies (even when the decision is not to decide). Look at the questions raised already by e-mail and Internet usage in the workplace. Add to that privacy and other issues yet to be raised as electronic commerce becomes a primary means of doing business and you come up with merely an infinitesimal portion of the legal and ethical issues that possibilities such as genetic engineering will create. Lawyers armed with advanced support technology and chanting the mantra "change is good" will find plenty of room for career growth. Moreover, they will be called upon to take the lead in ensuring that these changes are for the good.
How will you survive? Read. Learn. Open your mind to positive change and make it your role to advance it.