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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.

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In The Magic Mirror, Kermit Hall and Pater Karsten write:

The [Plymouth] colony’s first trained lawyer, Thomas Lechford, did little to instill enthusiasm. He was disbarred for trying to influence a jury. Antilawyer sentiment was pervasive elsewhere as well, and the “ancient English prejudice against lawyers secured new strength in America.” The framers of the Fundamental Constitutions of the Carolinas in 1669 declared it a “base and vile thing to plead for money or reward.” Connecticut and Virginia during a portion of the seventeenth century prohibited lawyers from practicing. Early lawyers were often laymen helping friends or women serving the legal interests of absent husbands. (Hall 21-22)

Still, despite the opposition to lawyers — perhaps arising from the complex and seemingly arbitrary rules of the early common-law system — the complexity of colonial legal life (each part of the colonies tended to have its own legal rules which more-or-less approximated some part of the very complex English system), and the importance of smoothing out trade, meant that lawyers became increasingly valued. Although there were no law schools, a “rough apprenticeship” process, along with self-teaching, emerged to prepare attorneys.

But unlike in England, according to Hall and Karsten, there was never sufficient legal business to justify splitting the profession into barristers and solicitors. Instead, “American lawyers survived as generalists” (Hall 22).

It was not until after the Revolution that some moves to formalize legal training emerged, but even though Harvard, Yale and Columbia started legal training in the mid-nineteenth century, it wasn’t until the late nineteenth and early twentieth century that the law school system as we know it today developed.

Helen A. Anderson of the University of Washington School of Law brings us “Changing Fashions in Advocacy: 100 Years of Brief-Writing Advice.” (The Journal of Appellate Practice and Process, Vol. 11, No. 1, Spring 2010.)

Her historical essay looks at the twentieth century’s development of the modern legal brief, something she describes as “a relatively recent invention, not an ancient legal tradition.” The brief, she says, once was exactly the opposite in importance to what it is today. It has become the main form of appellate persuasion, with oral arguments focusing only on the highlights. Storytelling was once frowned upon in legal briefs, and “writers were told to avoid emotional or narrative appeals and present only the logical legal argument.” Later in the century, lawyers instead began to “craft their arguments like artists and novelists.”

She touches on the issue of new technologies impacting the practice of law, noting that “[o]ne judge complained in 1908 that lawyers no longer took the time to carefully craft briefs with quill and ink, but instead dictated pages of rubbish to stenographers” (from Alfred C. Coxe‘s 1908 article “Is Brief Making a Lost Art?”). Coxe goes on to write:

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The age of combinations, bureaucracies, telephones, and stenographers is at hand, but is still in its infancy. Some of us may yet live to behold a machine where the pleadings and proofs are inserted in a condensing hopper, passed through a solution of text-books and syllabi and from there to a drying chamber, to be deposited finally in a receiver attached to the clerk’s desk, in the form of a completed brief. It is to-day as difficult to find a hand-made brief as it is to find a hand-made shoe.

Interestingly, she compares the early twentieth-century perception of the judicial process “as one of scientific inquiry, and the lawyer’s role as an assistant in that project.” She quotes Ralph Ringwalt, who wrote in 1923 that the “proper personal attitude of legal reasoning on appeal is analogous to what is known as the scientific spirit in inquiry.”

During the middle of the century, lawyers began to recognize the power of storytelling, and to see the process of brief-writing as more than a scientific endeavor. Today’s brief-writers are more inclined to see briefs as a combination of technical legal argument and compelling storytelling.

Anderson’s article is both interesting and compelling, and provides much needed historical context to the practice of law that is often under-recognized within the practicing legal community. History is critical to the common law, but is less often practiced in relation to attorneys themselves.

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Reflecting on Avvo‘s Internet marketing conference for lawyers, Kevin O’Keefe of LexBlog writes:

I started on the Internet at AOL. I answered people’s injury, medical malpractice, and worker’s comp questions. The more questions I answered, the more work our firm got and the more successful we became. The more I listened to others and the more engaged I became, the more I enjoyed myself and the more people who contacted me to help them.

I discovered that Internet marketing was not all about me. It was about what I, as a lawyer, could do to help other people. Rather than buying cheesy yellow page ads and running expensive TV ads, I could get good legal work by helping people.

via For lawyers is the world really all about Google rankings? : Real Lawyers Have Blogs.

The lesson that good connections with people  —  arising from providing good quality content on a blog, helpful commentary in forums, useful information and replies on Twitter, to name just three examples  —  is the core of effective marketing is often lost.

You might call this “un-marketing” or “non-marketing” to distinguish it from frantic SEO, blaring billboards, or extravagant banner ad purchases. It’s deceptively simple: go out and help people, and clients will find you.

Taking this kind of approach does not mean foregoing an online presence. How can you put yourself out there and be helpful if you don’t join Twitter, don’t blog, and don’t contribute to forums? And once you start seeking out people to help, how can they and others find you later if you aren’t on LinkedIn or don’t have your own Web site?

Whatever you call it, the core message is to be helpful and do good, and the clients and customers will seek you out in return.

As a do-gooder, SEO, ad buys, and similar strategies should be done to be helpful. That is, such strategies should make it easier for people to find you, and for you to be helpful in return. They are secondary strategies, not primary ones.

For a do-gooder, primary strategies involve getting out there and providing utility to others: answering questions, being a resource, advocating positions you believe in, sharing your experiences and knowledge.

Doing good and being helpful isn’t a new marketing strategy. It’s just an old way of showing the world your worth, updated for new mediums. It takes Google’s “don’t be evil” and goes one better: go do good, and the clients will come (just don’t forget to make it easy for them!). It takes “add value” and takes it further: go be helpful!

Has this kind approach worked for you? Have better ideas? Think it’s crazy? Let me know in the comments.

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.

Ah, the challenges of equating production with copyright (a very Lockean concept, incidentally):

The problem? The city and the court reporter who recorded the transcripts would have charged a much higher fee for a copy of the transcripts, and felt that the lawyer’s use of the law to gain access was somehow unfair. The court then ordered the lawyer to pay the court reporter over $4,000 to make up the “difference.” The lawyer, however, appealed, and the appeals court has thrown out the lower court ruling, saying that forcing the lawyer to pay the higher fee would mean that the court reporter effectively was given a copyright to the transcripts

via Techdirt.

It may not be “fair” to the court reporter that his or her work product should be available for less than they wish to sell it for  —  but the point of copyright and IP is about balancing public and private interests (and in promoting progress, in Constitutional terms), not about awarding ownership to producers. The court reporter was already paid for their effort and work, after all. The public interest then is best served by not awarding future monopoly ownership to them. Which is, I expect, pretty much what the appeals court decided.