Features - Lawyers, Libraries, and TechnologyBy Joe Stephens, Published on February 1, 1998
Joe Stephens is a
Law Librarian, Oregon Supreme Court Library
Joe Stephens is a former parasitologist, teacher of symbolic logic, public reference librarian and law firm librarian. If he had it to do all over again, he would be a meteorologist.
(Archived March 1, 1998)
Not so very long ago, law firms large enough to have in-house libraries were very proud of them. Very often, the library was the showplace of the firm, with lavish architectural detail, expensive wood paneling, deep carpeting, and custom shelving. These libraries were furnished impeccably, and they often occupied choice space, with panoramic views. Clients and prospective clients were given the grand tour of these palatial facilities, to be suitably impressed with row upon row of uniform sets of law books. When senior partners were photographed or videotaped by the media, it was usually in the library, with one of those sets of law books as the inevitable backdrop.
This has all changed. Law firms that have not moved to new buildings in the past few years and are still maintaining such libraries are not nearly so eager to show them off. They may even be regarded as something of an embarrassment, not just too opulent for the '90s, but also perhaps indicative that the firm is not "with it," and has not made the move to new technologies that clients tend to believe are more efficient. Firms which have moved to new buildings, and many others who are planning such a move, have often reduced the space allocated to the library by half, and it may be space in the center of the building, with no view at all because there are no windows at all. Furnishings are likely to be much more utilitarian, with metal shelving dressed up with wooden end panels. Clients are more likely to be given a demonstration of the firm's computer capabilities than a tour of the library. Instead of massive sets of reporters, clients see file servers, CD-ROM towers and home pages on the Web, generally not administered by librarians, but by IS staff. What are we to make of this sea-change?
Well, librarians have been told for years that technology would soon make them redundant and, libraries as we know them, obsolete. One of our most respected academic colleagues has recently predicted that "Printed legal materials are mortally wounded and will be curiosities within ten years."1 And Professor Berring also laments the death of librarianship. "The profession is dying," he says morosely. "Something is being born in its place. But the new thing will not have the values of the old..."2 So is it the end of print and the death of the profession that we are seeing in the shift in firm attitudes towards their libraries?
The Rush to Digitize Legal Research
Those who know me know that I am not inclined towards excessive cheerfulness. I tend toward skepticism, even pessimism. Yet I think librarians have generally done a good job of meeting the challenges presented by technology, and I expect print to be around longer than I will. What we are seeing in law firms at the present time, I believe, is the first flush of real enthusiasm for technology from lawyers themselves, with too little hands-on experience to appreciate its difficulties and limitations. Lawyers were very slow to become involved with technology. Although their firms long ago implemented word processing, time and billing programs, computerized docketing, case management and other applications, lawyers, and especially senior lawyers, kept all this at arm's length, and it fell to staff, including librarians, to make it work. Many librarians went through this initial enthusiasm for technology years ago when we first glimpsed the possibilities it seemed to offer.3 Now, chastened considerably by day-to-day reality, we have not exactly given up on technology, but we are much more clearly aware of its problems. While there are still many librarians eagerly looking forward to the virtual library, their vision dimmed perhaps by technolust,4 many of us now see a future in which print resources will continue to be important for some time, while the truly insane rate of technological change and other factors will place some limits on the shift to electronic resources.
But there is a real danger in the fact that many law firms are now just not on the same page with their librarians. These firms have been persuaded that CD-ROMs can replace books, and that everything is available on the Internet anyway (only a slight exaggeration). Hence, while many librarians are now inclined to see CD-ROM as an interim or "bridge" technology and are reluctant to commit further to it, some lawyers are demanding that space for the library be eliminated, or maybe just cut in half, for the present. Not long ago, we were concerned that firms were not able to use Westlaw and Lexis effectively because decision-makers in the firm did not understand CALR and were inclined to place undue restrictions on its use. Now, it seems, these same decision-makers want to make the leap to the electronic library immediately, if not sooner. The danger is that many firms are now rushing to replace books with technology without really knowing what they are getting into. This often puts their librarians in the uncomfortable position of having to argue against lawyers' newfound enthusiasm for technology. To these lawyers, it can seem as though it is librarians who are now technophobes, a strange bit of irony.
Lawyers' new rush to embrace technology is being driven by several factors. In the early '90s, when it was clear that the rapid expansion of the '80s was over, many firms found that they had expanded too rapidly. They found themselves in a newly competitive market, and old loyalties were no longer sufficient to preserve client relationships. Law firms were scrambling to meet the requirements of their clients and potential clients. They were well behind the corporate world in their utilization of technology, and clients demanded that they catch up, since in the corporate world it was at that time taken for granted that it would lead to greater productivity and lower costs.5 Clients expected to be able to contact their lawyers by e-mail, and to have access to information regarding the status of their matters being handled by the firm. Technophobia became definitely uncool.
In this same period, the personal computer industry finally realized that there were not enough people around who were willing to type in arcane commands and spend a good part of the day looking at a black and white (or black and green) monitor. Even the omnicompetent Martha Stewart reports that she gave up on DOS. But the new 486 chip allowed PCs to run much larger programs at acceptable speeds, and we got Windows and color monitors. Suddenly, the screen had a glitzy new look, and point-and-click was much easier than typing, and carried none of its stigma for lawyers. It became much easier for lawyers to do at least rudimentary tasks on the computer.6 And of course the law graduates of recent years arrive at their firms with at least word-processing skills, and some computer research experience. Some are real techies, and many are technology enthusiasts.
And of course, lawyers are subjected to the incessant hyperbole of the Information Age, as we all are. There seems to be a worldwide consensus that the advent of the digital computer was a watershed event in human history. Even Library of Congress cataloging reflects this consensus with the subject heading "Computers and Civilization."7 Parents feel pressured to buy home computers since they hear on every side that their children will have no future unless they develop computer skills. In the face of this tidal wave, even lawyers who held out for years do not now want to be seen with a desktop bereft of its computer.8
The Challenges Posed by Legal Research
In addition to the hyperbole with which we all are inundated, lawyers are also subjected to influence from the "consultants" who write most of the technology articles in legal periodicals, and from mega-publishers like West, who clearly intend to keep re-selling the same information in new formats. The views of that large majority of lawyers who are not technologically sophisticated are being shaped by those who have an interest in puffing technology. And what they are hearing from these sources is: Books are obsolete and expensive and take up too much space; technology is cheaper, faster, better--and way cooler.9
Now, a good part of this is true: books are certainly more and more expensive, and firm libraries cannot continue to expand as they have in the past, given the cost per square foot in new office towers. Technology is certainly glitzier, and clearly faster and better for many things that must be done in a law office, including some kinds of research. It probably is not cheaper, when additional staff, training, maintenance, support, hardware, software, continual upgrades and retraining, downtime, glitches, bugs, failures, and frustration are taken into account. But if Bill Gates could click his magic mouse and make all print law libraries disappear tomorrow, most lawyers would find that legal information had suddenly become much less accessible for them, rather than more. There are lawyers who are skilled computer users, but it remains true almost a quarter-century after the advent of computer research, that few have more than rudimentary skills, and many of those over 40 (50?) have no skills at all. And effective computer research does require skill.
What lawyers do have, along with the rest of the educated public, is book skills, ingrained from the time they were toddlers and so natural that they hardly realize that these are skills. They know how to determine with hardly more than a glance the relevance of a book, how to judge its authority, and how to find their way around in it. They know how to browse library shelves to locate what they need. They know about indexes and tables of contents, and they can scan a page for its relevance in a glance. Many lawyers experience feelings of helplessness when confronted with a computer screen, even when it is adorned with glitzy icons rather than the enigmatic C-prompt. There is an excellent reason for this. It takes a long time and much work to reach a level of competence comparable to the book skills they take for granted. Lawyers who have been told that they will be able to do their research "at the touch of a button" will experience much frustration when they make the move to electronic resources and discover that they will have to touch many buttons, and in absolutely the correct sequence.
However, for recent law graduates, computer research comes more naturally that book research. "To them a keyboard and a screen with a menu of choices is far more natural than a printed index...," says Professor Berring. While I do not doubt that this is true, I continue to have my doubts about the depth of their understanding of full-text searching, and the level of research skills they actually acquire in law school. So long as law is taught from casebooks, law school will offer limited opportunities for real-world research. My experience has been that though recent graduates no longer are hesitant about turning to computer research, they are not necessarily better at it. And once they are in the high-pressure world of practice, they may find it difficult to maintain the skills they have, and to keep up with constant changes. So I expect that they may also encounter some frustration.
The Electronic Research Bandwagon
When law firms decide to jump on the electronic research bandwagon, what they are likely to have in mind is CD-ROM products and the Internet. LLRX readers will be familiar with the problematic nature of both these resources. CD-ROMs have proven balky and difficult on networks, and may not be available when needed most. They are sometimes less current than print sources, and may not contain all the contents of the print source. There have been occasional mistakes in hypertext linking, so that the link takes the user to the wrong document. Each vendor uses a different search engine and interface, so that transferability of skills is limited. Vendors seem unable to decide how to price these products. Upgrades come unannounced, and with no documentation. Worst of all, unless one is so inured to the computer screen that one does not know any better, CD-ROM is tunnel vision: you look at so small a part of a document that it is difficult to see the big picture. The Internet is chaotic and unstructured, and contains less really useful information than lawyers have been led to believe. Search engines do not allow the precision of commercial databases, and it is possible to spend hours "surfing"--skimming the surface of this vast sea of information--with no useful result. There are, of course, very useful legal sites, but change is occurring so rapidly that today's favorite site may be gone tomorrow. The Internet itself is being rapidly commercialized. Although its history is a research and communications tool linking academic institutions and the government, and it is now broadly viewed as "educational," my guess is that its future is pretty much what the future of other new media initially seen as educational has turned out to be. It is now said to be "infotainment." In a very few years, I think that it will be more entertainment than information.10 Something may evolve to fill the information role the Internet now has, but I would think that it will be quite different. For librarians, both CD-ROM and the Internet raise questions about preservation which do not occur to lawyers--until they need a document not available in a current format.
It is possible that all these problems will be fixed before lawyers become disillusioned. It seems unlikely that they will not be replaced with new problems until the pace of technology slows. And this probably will not happen until we reach the limits of Moore's Law, which states that the capacity of a computer chip will double every 18 months. Current sources estimate that this will not happen for another ten to twenty years, which means that hardware will continue to become obsolete at a rate which must make automobile makers drool. New chips mean new software to take advantage of the added capacity, which means re-training and new bugs. Few firms have adequate technical support to deal with this. USA Today reports that at least 10 per cent of information technology jobs are unfilled, and Microsoft is training the low-income elderly for certification in some positions. Technology will continue to change faster than the changes can be assimilated, which means that we will continue to suffer through upgrades which mostly allow us to continue to do the same things.
So I cannot help but think that disillusionment will set in. Already there have been postings on law-lib about a retreat from CD-ROM in some firms. Large subscription libraries report that firms, which have moved more or less completely to electronic research, are using their print resources heavily. Lawyers are learning what librarians have known for some time. For the foreseeable future, electronic sources will supplement rather than replace books. They afford another way to store and access material, but not to use it. The poor resolution of all currently available display technologies, insures that any one who really wants to read extended material will print it out--or find it in a book. Even Bill Gates acknowledges that "for at least a decade it won't be as convenient to read a long, sequential document on a computer screen as on paper," although he also predicts the coming of the e-book.11
Robert C. Berring, "Editorial," Legal References Services Quarterly, Vol 15 (3/4) 1996, p. 3. <back to text>
Berring, "Editorial," Legal Reference Services Quarterly, Vol. 15 (1) 1996, p. 2. <back to text>
I plead guilty to having written an article on CD-ROM for the Oregon State Bar Bulletin in 1985 in which I waxed eloquent about lawyers having available on their desktops a "juke box" of disks, which would include most of the resources needed to practice law. There were no law-related CD-ROMs in 1985, and no juke boxes, either. <back to text>
So far as I can tell, this useful and accurate term was coined by Walt Crawford and Michael Gorman to describe an irrational desire to acquire new technology for its own sake. On the place of technology in libraries and the future of the profession, I highly recommend their book, Future Libraries: Dreams, Madness & Reality, American Library Association: 1995. <back to text>
There is a further irony here. The Fortune 500 companies who led the way in embracing the PC revolution are now retrenching, and looking much more carefully at technology decisions. The promised productivity gains have proven so elusive that no one even tries to measure them anymore. See Stephanie Losee, Burned by Technology, Fortune, September 9, 1996, at 107. <back to text>
And "easier" is clearly the future. Microsoft is bent on developing an easy-to-use interface, and expects that 80 percent of its code will be devoted to user-friendliness. Windows will no doubt occupy a larger and larger amount of disk space with each upgrade. See David Beckman and David Hirsch, In re Technology, A.B.A.J. November 1997, at 84. <back to text>
There is no subject heading for "Printing and Civilization," nor even a subheading comparable to, for example, "Automobiles--Social Aspects." <back to text>
What they actually do with it is, of course, another matter. Used computer dealers are said to favor the PC from the partner's desk when there is an upgrade, since it may never have been turned on. <back to text>
See, for example, Wendy Leibowitz's column "Lawyers and Technology," National Law Journal, December 16, 1996, headlined "Watch Cost of Law Libraries Drop With CD-ROM, Internet and Online." The claims made here were qualified in a later column headlined "Technology Budgeting is Difficult; Prices fall, But Hidden Costs Rise," National Law Journal, January 20, 1997. <back to text>
Bill Gates is intrigued with the possibility of digitally altered movies on demand. For example, you could substitute a digital image of yourself for Rhett Butler, and watch yourself in "Gone With the Wind." The Road Ahead, p. 197. An even more distressing scenario is presented by the vision of Martin Hash, creator of a 3-D character animation program: "...primarily cyberspace will evolve into a fantasyland for people with no life." Interview, Wired, June 1996, p. 157. <back to text>
The Road Ahead, p. 113. <back to text>