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Technology a strange bedfellow for lawyers

Mon, Nov 26th 2007 12:00 am
In March 2005, University at Buffalo Law School students returned from spring break to find the Charles B. Sears Law Library boarded up and inaccessible until further notice due to fire damage.

As it turned out, the blow to students was less because of a loss of access to research materials as it was a loss of study space. This is because the vast majority of information students needed was easily accessible via the Internet on the laptops virtually every law student carries around in her backpack. That the library closure was a mere inconvenience instead of a crippling loss of research tools is indicative of the changing nature of informatics in the legal world.

Indeed, once upon a time the operation of any sizable law firm demanded the informational services of a constantly updated library and full-time research librarian. Although most larger firms still maintain library facilities, they have been significantly scaled back and operate under the aegis of a part-time mobile librarian instead of a resident in-house expert.

Over the last few decades, the law - the profession from which the phrase "throw the book at him" emerged - has become a culture dominated by paperless technologies. Lawyers, once quintessential bookworms, now sashay about with Blackberries buzzing on their hips, living in fear of a productivity hiatus when the office server fails.

An ever-increasing number of information technologies are affecting both the practice of law and the training of the future lawyers of America. Questions of e-mail etiquette, online social networking, computer use in the courtroom and the usefulness of "blawgs" (Web logs centered on legal issues) dominate discussions about the future of the profession. Even though concerns about the latest gadgetry and the most water-cooler-worthy Web site might seem more interesting, they pale in comparison to the most profound change - the shift in research from a book-based process to one conducted entirely while sitting in front of a computer screen.

Perhaps the uneasy intersection of the law and modern technology is what makes it so noteworthy. This is because the legal world relies entirely on what was, not what is coming next - it depends on precedent. Hence, the profession demands that lawyers not only respect, but hinge their arguments on, history and the paper trail it leaves in the form of cases, statutes, treatises, articles etc. It is only in the last 20 years or so that an attorney's online access to information, primarily through databases such as Lexis Nexis and Westlaw, has become available.

Although the law itself does not always follow a straight line, one element of the practice that is decidedly linear is how to rise to prominence within a law firm. Power within the firm structure is designed so that influential positions such as partnership, executive-committee membership, etc. can only be earned in time. The system creates an inevitable generation gap between experienced attorneys and newer associates. There is likely no area where this generation gap is more evident than in ideas about how research should be conducted.

Most upper-echelon attorneys graduated from law school when all research was conducted via books and paper. Nearly every person who has graduated from law school over the past 10 years has learned to research almost exclusively online. This can lead to a great deal of grumbling across the divide about the right tools to piece together a sound legal argument.

It is not so much that senior attorneys do not effectively use the Internet; they do. The issue is rather that younger attorneys do not know how to use books or lack a general knowledge of the type of sources available. Younger lawyers may rely too heavily on punching in search terms instead of understanding the importance of individual source materials. The Internet has won, but that does not necessarily mean that books are passé. Today, it's all about managing the information available to you.

Lawyers who have bridged the gap say that the increased alacrity of Internet research allows more time to think about legal fact patterns and to craft their arguments. It also allows time to access a great diversity of sources when a more creative argument is needed. However, this state of affairs comes with the caveat that too much information can be the enemy. It creates a tendency in a newer attorney to continue searching in vain for the perfect answer, or to over-argue a point using too many resources and muddling simple points.

Obviously, cost-effectiveness plays a role in the switch from paper to digital resources. Keeping libraries current requires the constant updating of inventory, and although subscriptions to Westlaw and Lexis can cost tens of thousands of dollars, the resources available are as inclusive as an individual firm needs them to be and are updated automatically. As a result, firms are not abandoning libraries completely, but instead are paring down inventory and employing part-time librarians.

Jane Snyder, who has worked in law-firm libraries since 1991 and works at several large Buffalo firms, says that her part-time status actually makes her job more effective, especially because of the cross-pollination of information between firms. "There are advantages for both firms and the librarians when they work part-time ... the firms are only paying for work when it is needed," says Snyder. "By going to different firms, we can keep up on the latest trends within libraries and disseminate that information to our different libraries,"

Despite appearances, technology and "old school" resources like books are not mutually exclusive. Hein Online, a Western New York company that is a giant legal research provider but is little-known locally, might typify the nexus between the digital and print divide.

William S. Hein & Co. Inc. has been in the business of recording legal documents and taking pictures of papers and books, storing them on microfilm or microfiche, for more than 80 years. It had rights to an impressive list of legal journals and, as digital demand grew, started putting them online, accessible via subscription. Unlike other internet entities, Hein posts reproductions of the actual book page or document so that it appears exactly as if the reader were holding the original in her hands.

Company President Kevin Marmion reports that Hein Online is available in 150 countries, 3,800 libraries (including every university with a law school in North America) and 450 law firms, including most of those ranked among the top 100 in the United States. Explaining how the company came to its current market, he says, "We have always been in the business of legal information. We were always taking information and media and distributing it in new ways."

"Originally we were primarily an academic product, so we wanted to add actual books online, not just (to) re-key information," says Marmion. "We wanted to make librarians confident they could take books off the shelf and still have them available on microfilm in storage and available online ... We wanted it to feel the same as a book so that it could be viewed page by page."

A mantra often repeated by Hein Online representatives is that they are "preservationists" above all. The question they ask themselves as they develop protocols for the future is, "How can we preserve what has been done in the past while meeting the changing needs of researchers?"

Marmion refers to that researcher/customer as a "moving target," and says that the company's focus will continue to be on the broader market of the internet, while working to improve the connectivity of online documents and allowing features to the reader like the ability to write notes, as one might when reading from paper.

Even a company with an online focus such as Hein is not immune to the suggestions and information strategies of new generations. Marmion's son, who is 28 and recently took on a more active role in the business, recommended adding a blog to their Web site. Marmion believes the new addition is a truly effective way of answering questions and facilitating a conversation with customers.

Ironically, over the last few years Hein has found new business opportunities by printing and binding paper copies of governmental documents originally provided only in digital form. As much as things change, some stay the same.

Freelance writer Caroline Bala Brancatella is a recent law-school graduate who has passed the New York State Bar Examination. An associate at Jaeckle Fleischmann & Mugel LLP, she can be reached at cbrancatella@jaeckle.com.