The Challenge of Technology in the New Practice of Law

Samuel A. Guiberson

Ohio Northern University Law Review
Vol. XXV No. 4
1999

So many lawyers make the fundamental mistake of believing that if they just have a twenty-eight inch monitor and a wooly mammoth hard drive, somehow their law practices will become technologically state-of-the-art. They believe that all they need to do is open the box, put the PC on their desk, and everything will change. In truth, you must do more than that if you want to own something more important to your practice than a $2,000 paperweight. You must invest yourselves; you must understand that as your law practice experiments with technology, that technology experiments with your law practice.

The first thing I recommend when lawyers are beginning to integrate their law practices with state-of-the-art technology is not to look at the computers but to look at themselves. As we apply legal technology to our law practices, I want to focus on shifting our focus away from hardware questions like "which computer is best for me," or "which word processor will give me that strategic advantage over the other lawyers?" The truth is, none will. The reason hardware alone will not help you is that all the strategic advantage in using technology exists in how you use your mind-the way you blend your talents with the capabilities of technology. It is not about hardware, it is about understanding how to extend technology into a new human limb for the mind.

We like to think that we buy computers and use them because they are efficient. They are machines which make our paperwork go faster. They produce products more quickly. The notion is that a computer is really just a microwave oven-an appliance that cooks the same old recipes faster-when, in fact, it is not that at all. Computing is not just about automation and expeditious production of things we already produce in other ways; it is about information, and I do not mean information in the pedestrian sense of more data. I use the word "information" in the sense of knowledge forming a way of doing things, a way of thinking things, the process of encouraging lawyers' thinking with thinking machines -- not machines that think for us, but machines which compel us to think in a clearer way. Success with technology is not found in how many computers you can buy, it is not money that will make you succeed in the information age, but the use of skilled intellect.

What I mean by "intellect" is not just gathering a lot of information. I have found in my twenty years of working with computers that I was not working with just another microwave oven. I found myself working with a new chemistry of thought, a new way of thinking, a new way of organizing information, a new way of conceptualizing what could be useful to me in my litigation practice.

The way we think is changing. Of course, the way we practice law must change with that. What I want you to focus on is how these tools change your minds.

One of the profound aspects of a revolutionary information technology is that it makes us apply a new structure to how we will organize our ideas and retrieve information. It creates a medium-not electronic hardware connected by wires, but a medium for communication and organization between people. In any lawsuit, no matter how small the litigation team-whether it is a team of two hundred or a team of two-solving the problem of how best to employ your computing resources creates a structure for your work. What are the priorities?

First you focus on people, not technology

What are the capabilities of the people involved in the project? What can they do with the technology? Whatever they do not understand about the hardware and software will never be available to you. You have to focus on their skill levels and be insured that, whatever you do, you raise all boats, leaving no one behind. If you are working with someone who does not know how to work a complex word processor, do not wait another six months to start working with them until they learn to use that technology -- find a simpler one. Keep lowering the entry barrier to the use of technology.

Nurture technology with process

Spend more useful time thinking about how to organize around the technology you have, regardless its level of sophistication--how you will learn, and how you will organize information, prepare for trial, and structure the phases of the litigation process. Those are the hours that are most valuable. On a practical level, reading magazines about the latest processor or ultra giga drive has little influence upon how well you use the technology you already have.

Let the case dictate the technology

There is an assumption that one technology size fits all. This is simply not true. Each case ought to be reviewed as a new experience that may require different software, different hardware, and different tools for courtroom presentation than your last case. Do not be locked into thinking that technology is uniform. Always center the way you use technology on the particular facts and needs of the case at hand. You do not come to court with a $75,000 high-gloss computer animation if it is a dog-bite case. You have to set the technology production values to the level of the case you are involved in. Never seem to be "over-teched" and, of course, never let the technology overshadow your personal advocacy for your client.

Trial tactics are information tactics

By stating that trial tactics are information tactics, I mean you cannot do at trial what you did not visualize would be significant to your case before the trial. In an age in which more litigation is large-scale and of great complexity, computer resources allow solo practitioners and small firms who are technologically sophisticated to undertake cases of magnitude that used to be reserved for major law firms.

Your trial tactics, your advocacy itself, in the modern complex litigation environment we are in, require that your information tactics must be in place before your advocacy skills will be able to take effect. If you cannot see a fact in the evidence, you cannot advocate. Information tactics are the DNA of trial advocacy.

Do not be intimidated by, or imitative of, how other people use technology

You must find your own unique voice in how you apply technology. The way to find your voice in litigation computing is to blend together many different software packages until you get that bundle that is synergistic. It gives you more than the sum of its parts. Do not ever assume that the way you did it the last time will produce the same result-do not fight the last war, do not try the last lawsuit. Always find the way that the particular lawsuit you are working can benefit most by the technology you have available to apply.

The process of using technology in law practice is non-delegable

The process of using technology in law practice is a lawyer-centered endeavor. It is not appropriate for a lawyer to have the database search results brought into the courtroom on a crushed red velvet pillow by some associate or paralegal. You lose contact with how software and computers can create insight into information as soon as you step away and delegate that responsibility. Working the computers is hard-core lawyer time. Anything that can make you more powerful in your mastery of facts is eminently lawyerly. Do not believe you should be delegating the learning curve to some person who will then work in a support capacity, because if you do, you will never have a clue as to how that computing resource can help you.

The best litigation support always uses the simplest means to present information. Managing information powerfully means managing to get the information to those who know the least about how they got it. That is the genius of it.

Another benefit of this approach to managing your own software applications is that you are always fresh. That which is the edge of the new is always right before you. One advantage of the rapidity of technological transformation and obsolescence is that it keeps you alert. You cannot sit back and relax for a hundred years, as our profession has done, essentially doing the work in the same way that we did it at the turn of the century. The big Y2K problem we have in this technological renaissance is not fixing our computers, it is fixing lawyers to know the difference between the year 2000 and the year 1900. That is the profound change that we will have to test-whether our culture and our technology and our commerce is up to that challenge. Fixing hardware is a cinch when compared to revolutionizing minds.

When you get to court, the technology you use is the technology you are familiar with, the technology you are used to using

I personally have a rule that, if I cannot make it work sitting on my sofa, I will not use it in a courtroom. The reason for this is not only to avoid being embarrassed, the effort is to encourage yourself to be authentic in the demonstration of your evidence. Someone who is fumbling with computer equipment is not an effective advocate because the message gets lost in the medium. You have to use something that you are as comfortable with as your own voice-not the software that someone brings in at the last moment to use in trial. Whatever you use in your office can produce an effective and artful courtroom presentation, no matter how simple it is. Use what you know.

The courtrooms of the future should have the same technology as the law offices of the future. Whatever technology is in the law office-computing resources, vast information access through the Internet, digital communication and presentation tools - ought to be available to lawyers in court

Unfortunately, courts do not perceive, in some instances, how intimate and how integrated the relationship between a lawyer's arguments and their technologies has become. Courts also have a certain apprehension that technology will, in a sense, control the courtroom. In fact, nothing is further from the truth. If you trust the lawyer who uses the technology, you can trust the technology that the lawyer uses.

Digital trial advocacy is not the same as using a microphone to have your voice projected more loudly. It requires employing new media and expanding the bandwidth of advocacy to incorporate images, sounds, and videos. All these media need to blend together because, while you may have spent your life in book-lined libraries reading precedent, your jurors surely have not. They are immersed in a sensorial, stimulating, visual environment, and that is the way they acquire information. That is the way you have to present information if you expect them to absorb what you are saying-total communication, broad bandwidth.

What is most important to all of us, I think, in any time of near-chaotic transformation, is that we find a way to weave our lives, our professional futures, between the barriers that technology poses. No one in this room, whether they are just now exiting law school or forty years out of law school, none of us are too far along or not far enough along in our professional paths to master this media, master this new dimension of legal advocacy. It is not complicated. Frankly, the most trying part is accepting that it has to be you who will perform this transformation, and that transformation is not about hardware but about what you do in your professional life.

Do not be confused. This is not an option for lawyers, this is an imperative. Lawyers who choose not to engage themselves in this training, in this reformation of the concept of how to be advocates, will soon be like aging gorillas stumbling through the mists, hunting for clients under flat rocks in some remote Amazonian jungle. There will be no practice of law for those that do not employ these tools. Not everyone will succeed through this transition. We will find our professional ranks diminished by the exit of those who cannot exploit what technology offers, who cannot open their minds to work within a universe of information of unlimited proportion, who will not dedicate the time, who find themselves unable to advocate well in audio/video imagery. That new dimension of advocacy will bring some lawyers to the forefront and leave others behind. On balance, we have been given professional life in one of the most profound and inspirational times in human history. Who could fail to take advantage of that gift?