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An article in Slate claims:

While legal automation will be a boon for those who can’t afford representation, it’s bad news for lawyers. The industry is already in a slump, and law school is no longer seen as a sure path to riches. Because software will allow fewer lawyers to do a lot more work, it’s sure to drive down both price and demand.

My opinion? Software won’t replace lawyers, but it will reduce the demand for certain routine legal services and raise the complexity of litigation. Those without the software will be at a disadvantage. It will also cut into the work of paralegals. But not lawyers.

(Part of this reminds me of the claims in the early 20th century that polygraph machines would replace juries, since machines could judge truth of falsity and revolutionize the entire legal process. That didn’t happen, of course.)

It’s true that being a lawyer today involves a great deal of drudge work, especially at the lower echelons, and certainly eliminating some of the most time-consuming parts of the profession has the potential to reduce the workload. But while computer programs to generate wills have cut back on the demand for bare-bones legal services, the general result, I think, has been to increase the number of written wills, not to reduce the people who consult a lawyer for more complex drafting. Similarly, I expect contract-writing tools to help create more written contracts, not to reduce the important of lawyers who write and review more complex deals. The result will, hopefully, be more routinized, written business processes–but may result in freeing lawyers to spend more time drafting complex documents that exceed the abilities of programs to interpret alone.

The basics of document review can already be outsourced abroad in some cases, and using machine processing is rather similar. It helps with the routine and frees up time for the more complex.

The law is a complex human construction because society is a complex human construction. As long as it stays that way (and as long as people form a society, it will), it will take humans versed in its complexities to manage it fully.

An attorney for Google slammed a controversial intellectual property treaty on Friday, saying it has “metastasized” from a proposal to address border security and counterfeit goods to an international legal framework sweeping in copyright and the Internet.

The Anti-Counterfeiting Trade Agreement, or ACTA, is “something that has grown in the shadows, Gollum-like,” without public scrutiny, Daphne Keller, a senior policy counsel in Mountain View, Calif., said at a conference at Stanford University.

via Google attorney slams ACTA copyright treaty | Politics and Law — CNET News.

I have to agree this Google attorney. I don’t like ACTA much, either, and don’t think it’s much of an improvement on the current, uncoordinated approach to copyright.

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Though I don’t believe that it’s necessarily prudent or always cost-effective to run a law firm on freebies alone, free services, when used appropriately can give lawyers a wide range of capabilities that once would have been cost prohibitive.  And of course, don’t forget that yet another free tool for starting a law firm is MyShingle!

via Some Free Tools for Starting A Law Firm : My Shingle.

Before proceeding, let me remind anyone with confidential client information to be particularly careful, as you do not want to let an accidental slip-up reveal such details to the entire Web. (And there’s an open debate on whether it’s a good idea for attorneys to keep confidential information on 3rd-party servers, so think about that before doing it. I think it’s fine, personally, but you should think about the issues first.)

First, before we move on to tools to manage your business, you might want to consider alternatives to the very expensive Lexis and Westlaw. One new choice is Google Scholar, which has added case law to its index. I’ve written about some other choices before, along with more inexpensive alternatives,  including:

• Your local law library, where research is generally free
• FindLaw, a free case law database
• Fastcase, a reasonably priced legal research service (not free)

Once you can do research, you’ll need clients. In addition to the usual (paid) approaches, consider establishing your presence on Twitter, connecting to others on LinkedIn, and networking with your old classmates on Facebook.

Of course, once you have clients, you will need to keep track of them, along with your projects. You’ll also need to bill them. For this, I recommend either Cashboard (“time tracking, expenses, invoicing, estimates, and online payments done your way”) or FreshBooks (“Send, track and collect payments quickly. Great for teams, freelancers and service providers”). Both interface with Basecamp (below) to provide effective invoicing and billing. I have used both Cashboard and FreshBooks, and both are excellent choices.

Although you may be small, or may not even have more than token office space, you may want or need to work with a team — whether that’s collaborating with a virtual paralegal or a law student intern, or with a more specialized attorney. For this, take a hint from professional Web developers, and consider 37signals’ Basecamp. It lets you share files, meet deadlines, assign tasks, and centralize feedback.

Microsoft Exchange may cost much more than you can afford — and it certainly is more complex than you need. But you still need what it provides, especially email and calendaring. Throw in Web-based document editing and collaboration tools which are quite capable of replacing Microsoft Word for most document preparation tasks, and you have a winning combination in Google Apps. Basic services are free, but you may wish to upgrade to a paid business account for guaranteed service-level agreements and support.

You’re going to need to manage your telephone presence. Google Voice can help give you a central number for all your clients, and even transcribes your voicemails to text — all for free. (Consider VoIP services and Internet fax services to save money, too. One nice tip: Box.net, mentioned below, allows you to send faxes via efax.com for free.)

You’ll need a Web presence, too. While you can certainly use free blogging services like WordPress.com or Blogger (both recommended), you’ll probably want to buy a custom domain so you look more professional.

I highly recommend backing up your documents off site. Mozy is one nice choice — there’s a free intro plan, and paid plans if you need more space or service. Box.net is a good storage space if you need to collaborate or share files. Additionally, Dropbox provides simple cross-platform synching, so your laptop (which you’ve encrypted, right?) and your desktop files stay up to date.

All of the above provide fine services when you are starting out, and can grow as you grow. Just remember not to be cheap when it really counts — once you have some income coming in, I recommend an upgrade to the paid versions of these services to get full and professional support.

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It could mark one of the biggest changes for lawyers joining the profession since the first U.S. bar exam was given in Delaware in 1763 — a single bar exam aimed at standardizing attorney credentials nationwide.

via Law.com — Uniform Bar Exam Drawing Closer to Reality.

Law is slow to develop, so this will take a while — but it’s a step in the right direction.

Law school’s pedagogical approach does not necessarily reflect this ultimately practical goal, though, and its focus on the so-called “Socratic method” and on appellate case law is, many argue, an ineffective means of training effective lawyers:

Martha Minow, the new dean of Harvard Law School, where the Langdellian method of teaching from appellate opinions was developed, has called for “another case method” closer to the one used in business and public-policy schools, and consistent with W and L’s approach and Carnegie.

PrawfsBlawg: What’s happening in legal education?.

In contrast, graduate school is eminently suited to its goal of training new academics. We read other academics, write like academics, and teach and grade like the teachers we expect to be. Very disconnected from the “real world,” perhaps, and often overly bound up with theory — but still, if one is aiming to work in this area, the training is, in a very real sense, practical.

Law school, though, while pushing the practical, does not teach it. At most, one might argue that it teaches a kind of thinking — a very critical kind of thinking — but it does not teach students to practice law (nor to teach it, for that matter).

I’m curious to see how my reflections on law school education change as I pursue my PhD — I expect I might feel more positive about it as more time passes. We shall see.

Jim Calloway points out a troublesome issue for traveling attorneys:

The Department of Homeland Security recently clarified its position to restate that if you cross the border, any of your digital information devices can be seized and searched without the government giving you any reason whatsoever. They did promise to try to return them in a more timely manner. This includes everything from a laptop to an iPod to a USB flash drive. (Wow, wonder how many flash drives are in the pockets of my laptop bag now?)

via Jim Calloway’s Law Practice Tips Blog: The Digital Lawyer Crosses the Border.

He goes on to provide the following advice to any lawyer who may cross the U.S. border with a laptop potentially full of confidential client files:

That laptop probably can no longer travel across the U.S.border with you. Whether top military grade encryption protects your information from the Department of Homeland security or just presents a professional challenge for them is for you to decide.

via Jim Calloway’s Law Practice Tips Blog: The Digital Lawyer Crosses the Border.

There has always been an exception to search and seizure law at border crossings. In theory, this is nothing new — attorneys traveling with confidential paper files could also have them searched. But the ease of carrying vast numbers of confidential documents in electronic form raises the bar on this.

And, as Calloway also points out, encryption may or may not be sufficient to protect your data from the U.S. government. It might be better to limit what confidential data you have on your laptop at all — Calloway recommends “temporary” netbooks for the job instead of your regular notebook. I think that’s not a bad idea at all.

But I still think you should encrypt any laptop with confidential data too.

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It turns out to be a remarkably efficient way of offering what Granat calls legal transaction services — tasks that are document intensive. For everything from wills to adoptions to shareholder agreements, elawyering has numerous advantages. Its cheaper, for example; a no-fault divorce, Granat says, might run a fifth of what seeing an attorney would cost. It’s also faster — customers can access the tools anytime and never have to interrupt their day to meet with someone in a distant office. Simply put, elawyering makes certain legal services more accessible.There are trade-offs, of course. “The relationship has less richness than what youd get from sitting in a lawyers office,” Granat says. “And if you have an issue thats more complex, then you still need to see a lawyer face-to-face.” In other words, its a lower-fidelity experience.But for most simple legal interactions, elawyering is, well, Good Enough. It gets the job done, even if it doesn’t let you ask every question or address every contingency. And not surprisingly, it’s on the rise. “Elawyering will be mainstream in three years,” Granat says. “I predict that in five years, if you’re a small firm and don’t offer this kind of Web service, you’re not going to make it.”

via The Good Enough Revolution: When Cheap and Simple Is Just Fine .

I have yet to see an explosion of virtual legal practices by attorneys (although I have seen a few ads for outsourced legal research, generally to India), but I think paralegals are leading the charge in this area. (See, for example, Paralegal Associates, based here in San Diego.)

The biggest worry I think many might have with this — a worry that might prevent this approach from being “good enough” — is one of trust, particularly in billing issues. With standard hourly billing (at sky-high rates), working virtually with a remote attorney is, well, scary. (Of course, how much real interaction do you really have on an hourly basis with a “regular” attorney?)

In the attorney space, there is an increased focus on alternatives to hourly billing, such as fixed-fee services for routine legal matters (wills, for example). This ties neatly in with virtual legal services, where in-person meetings are less necessary, and flat fees make good sense.

The other area that might make sense in this regard is virtual research: providing remote legal research to other attorneys, who can save time and money. I think this could be a real growth area for virtual legal services, and it keeps clients insulated from potential problems with quality, since a “regular” attorney still buffers any advice and so on.

Combine legal research with paralegal services and perhaps tech support, and you have a winner, I think.

Legal Research Plus brought this to my attention, originally from the Daily Journal:

… Several months ago, …  Irvine attorney [Ed Connor] learned the California Supreme Court had given his 143-page brief to the legal information service LexisNexis, which was making it available online for a fee.…

via LexisNexis and Westlaw violating copyright? « Legal Research Plus.

This idea — that the courts are turning over attorney work product to for-fee services, which then resell them (or merely make them available?) to customers — is an intriguing one. Do briefs filed with the court become public domain? Or do the original author-attorneys retain copyright? Even if the writer (or their employer in some cases, since briefs are likely works-for-hire) retains copyright, does fair use apply to Lexis/Westlaw’s actions? As I said, an interesting idea.

Personally, from a public-policy perspective, I would be inclined to favor allowing LexisNexis, Westlaw, and anyone else to provide access to court-filed attorney briefs. I am bothered a bit about the resale factor — but only because there does not seem to be a free (as in without cost) option for accessing the briefs. I do not believe the public benefits from applying a copyright approach that denies access to the briefs. We are all better off if we can read them.

But like other situations in which I advocate “open access,” there should be more public access than simply LexisNexis and Westlaw’s extremely expensive service.

I’ll be interested to see if this issue goes anywhere in California, or if it just disappears.

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Critics say the lawyers left out important, relevant cases that would have pointed to different conclusions.

For example, in 1983, a Texas sheriff was tried for waterboarding prisoners. Justice Department prosecutors called the practice torture. But a 2002 Justice Department memo analyzing whether waterboarding is torture makes no mention of the case.

…
Maybe lawyers didn’t intentionally skew the law. Maybe they just missed the Texas case.

Wendel says that points to another ethics rule.

“Ethics rules can require good lawyering, so sloppy lawyering can be a violation of the duty of competence,” he says.

via Did Justice Department Lawyers Violate Ethics? : NPR.

The appellate case following up this Texas sheriff case was United States v. Lee, 744 F.2d 1124 (5th Cir. Tex. 1984). It took me some time to find using LexisNexis, partly because it refers to “waterboarding” as “water torture.” In addition, the appellate case cited above deals more with the severability of defenses rather than with torture itself — that was, apparently, dealt with at the trial court level (trial court decisions are much more difficult to find, and generally carry no precedential value anyway).

Certainly, given the limited information on this particular case, I don’t think it’s a slam-dunk ethical violation not to have cited it — although, that said, this was a case argued and won by the Justice Department itself. Every law firm and organization I’ve been in always has searchable records of their own briefs and cases. I doubt the Justice Department is any different. That fact certainly raises the bar for Justice Department lawyers.

Regardless of this specific instance, I think it’s important that these days, minimum ethical standards require online searching, not just looking in a few indices and printed journals. They may also require maintaining and searching a firm’s own briefs and cases (“knowledge management,” in IT terms) in more detail than merely using Lexis or Westlaw.

Certainly I’ll be interested, even outside of the specific investigation of these lawyers, in what the final report will say about attorney ethics and the importance of effective and comprehensive research.

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The New York State Court of Appeals, in Stern v. Bluestone, 2009 NY Slip Op 04740 (2009), overturned a lower court ruling that ruled that a faxed newsletter dealing with attorney malpractice issues — the same area in which the author of the newsletter practiced. Lower courts thought this newsletter constituted advertising, and thus ran into rules about attorney advertising. The Court of Appeals disagreed.

Why is this important for law bloggers?

The primary purpose of most law blogs is the dissemination of information. Like Bluestone’s “Attorney Malpractice Report,” blogs educate the reader about a subject matter that is unrelated to the self-promotion of the blogger.

Certainly increased visibility of the blogger is a byproduct of the publication of a successful blog; and as a result of that visibility, new clients may follow.

But, that doesn’t mean that the primary purpose of the blog is the retention of clients.

In comparison, I think that most people would agree that the primary purpose of television and radio ads, billboard ads, professional Web sites and yellow page ads is the retention of clients. Blogs are different because the primary purpose of blogs — sharing information — is separate and distinct from the self-promotion that is the essential element of most advertisements.

Thankfully, the court’s decision in Stern v. Bluestone is a strong indication that the highest court in New York understands this distinction. The court understands that lawyers’ creative use of emerging Internet technologies is, in many instances, simply an extension of traditional networking activities, including speaking at a seminar, authoring an article in a legal publication, distributing a newsletter via e-mail or joining a committee at the local bar association.

It’s good to know that the highest court in New York “gets it.”

via The Court of Appeals “gets it” when it comes to technology « Practicing Law in the 21st Century-A Law & Technology Blog.

In short: the same logic could be applied to a topical law blog written by an attorney, making this ruling important outside of the realm of faxed newsltters. In addition, lthough this ruling applies only to New York State,many states have similar rules, and hopefully this ruling bodes well for potential cases in other jurisdictions.

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