Susskind R., “Legal informatics - a personal appraisal of context and progress”, in European Journal of Law and Technology, Vol. 1, Issue 1, 2010.

LEGAL INFORMATICS - A PERSONAL APPRAISAL OF CONTEXT AND PROGRESS [1]

Richard Susskind [2]

Cite as: Susskind R., “Legal informatics - a personal appraisal of context and progress”, in European Journal of Law and Technology, Vol. 1, Issue 1, 2010.

Abstract

This chapter is an account of the prospects and progress of information technologies in the legal professions as seen through the author's own journey in the field. In an edited extract from the author's book, The End of Lawyers?, the chapter suggests that lawyers have insufficiently adapted to the opportunities presented by legal informatics and by the information society. Their challenge is to identify their distinctive skills and talents, the capabilities that they possess that cannot, crudely, be replaced by advanced systems; or by less costly workers supported by technology or standard processes; or by lay people armed with online self-help tools. The market is increasingly unlikely to tolerate expensive lawyers for tasks (guiding, advising, drafting, researching, problem-solving, and more) that can equally or better be discharged by less expert people, supported by sophisticated systems and processes. Therefore the jobs of many traditional lawyers will be substantially eroded and often eliminated. At the same time, new law jobs are likely to emerge which may be highly rewarding, even if very different from those of today. The market will determine that the legal world is inefficiently resourced and is likely to drive out excesses and unnecessary friction and, in turn, we will witness the end of outdated legal practice and the end of outdated lawyers.

1 Introduction

The main request I currently make of all lawyers is to invite them to introspect, and to ask themselves, with their hands on their hearts, what elements of their current workload could be undertaken differently i.e. more quickly, cheaply, efficiently, or to a higher quality-using alternative methods of working. In other words, the challenge is to identify their distinctive skills and talents, the capabilities that they possess that cannot, crudely, be replaced by advanced systems; or by less costly workers supported by technology or standard processes; or by lay people armed with online self-help tools. I believe that the market is increasingly unlikely to tolerate expensive lawyers for tasks (guiding, advising, drafting, researching, problem solving, and more) that can equally or better be discharged by less expert people, supported by sophisticated systems and processes. It follows, I say, that the jobs of many traditional lawyers will be substantially eroded and often eliminated. At the same time, I foresee new law jobs emerging which may be highly rewarding, even if very different from those of today.

For those lawyers who cannot identify or develop the distinctive capabilities to which I refer, I predict their days are numbered. The market will determine that the legal world is inefficiently resourced (under-resourced in the consumer sector and over-resourced at the high end); it will increasingly drive out excesses and unnecessary friction and, turn, we will indeed witness the end of outdated legal practice and the end of outdated lawyers. Or, at least, this is my thesis in my book, The End of Lawyers?

2 Four Thoughts

The origins of that book lay in four thoughts and a journey. Let me start with the four thoughts because they provide the context, I believe, for the future of legal informatics and for the future of legal services.

The first thought sprung to mind when I sat, in great comfort, in early 2006, in the ancient and splendid surroundings of the dark wood panelled main hall of the Mercers' Company, in Ironmongers Lane in London. Founded in 1394, the Mercers is the longest established instance of a great tradition in the city of London, that of 'livery companies'. With origins in ancient trade guilds and, in the early days, very much focused on regulating their trades, there are now over one hundred of these bodies. Mercers were traders in fine cloths and silks. The last person to become an apprentice with the Mercers did so in 1888; since then, like many other livery companies, the Mercers have supported innumerable charitable causes and educational initiatives. It was probably the fine food and wine that emboldened me and fuelled my imagination. I wondered to myself, in an entirely untutored way, about the fate of mercers. I thought about improvements in transportation and communications, the impact of machinery on craftsmen and cottage industries, the emergence of synthetic fibres, the advent of mass-market retailing, and the impact of an ever more influential fashion industry. I then thought about other ancient trades and craftsmen, now remembered, in London, largely because of the livery companies that bear their names - for example, tallow chandlers (who rendered animal fat as candles), cordwainers (who worked with fine leather), and wheelwrights (makers of wheels). It occurred to me that the fundamental demand for the products of these trades (candles, cloths, wheels) had not diminished; indeed it had often increased. However, new technologies, methods of production, and innovations had served to displace most of the associated craftsmen. I reflected upon the legal world and the possible impact of information technology. I wondered then - and this first thought inspired the title of the book - whether lawyers might fade from society as other craftsmen have done over the centuries.

Perhaps 100 years from now maybe more or maybe much less people might sit in fine comfort in some vestige of today's legal world (perhaps an ancient courtroom refurbished as a restaurant, as some of London's banks have been repurposed) and, appropriately nourished, speculate in a leisurely manner about solicitors, barristers, advocates and attorneys, in much the same way as I had been musing about various craftsmen of centuries past. Who exactly were these people, these lawyers? What was their craft? They were involved with the law, of course, but what did they actually do? Why did we need them? How did they contribute? And why do we not have them any more? What brought about the end of lawyers? It was just a thought.

The second thought that led to my embarking on the book crystallized after many years of talking with a wide variety of lawyers. Increasingly, I have found that many lawyers seem to have one thing in common - they seem to want to deny that they are lawyers. They downplay the legal content of their jobs. Private client lawyers (for example, those who advise on divorces or draft wills) tell me that their job is not really about the law; rather, they insist, they are experienced counsellors, confidantes, or therapists even, in whom their clients have unwavering faith in relation to their personal problems. In similar vein, litigators say that their primary role in life is that of project manager rather than provider of legal advice, corporate lawyers claim to be deal-makers and negotiators much more than legal draftsmen, in-house lawyers maintain they are risk managers as opposed to legal counsellors, banking lawyers assert their clients come to them not for legal advice but for their market knowledge, and high street solicitors insist that they rarely undertake legal research. Even judges say that they are becoming case managers.

Where have all the lawyers gone? Why are lawyers not devoting themselves to the rarefied legal work that our law schools led us to expect (and many still do)? My second thought was that lawyers are denying that they are lawyers because they recognize the need to change and diversify in response to shifts in the market.

Of course, a variety of reasons might be advanced for lawyers denying they are lawyers. One response might be that being a lawyer is, bluntly, not the coolest of jobs, and perhaps not as prestigious as once it was. There may even be a stigma of sorts attached to being a lawyer (hence the wealth of lawyer jokes). So, in response, lawyers might be holding themselves out as belonging, at least in part, to another discipline. I do not accept this line of thought. It may be that the ill-informed and the disconnected will trash the legal profession but, in most walks of life, lawyers remain well respected. In any event, I cannot imagine according to what scale it is cooler or more prestigious to be, say, a project manager than a lawyer (with all due respect to project managers).

It may be that lawyers often genuinely forget how much they know about the law and so do not regard themselves as especially lawyerly. Or perhaps they do not feel that it is their legal knowledge that differentiates them in the marketplace and so they point to complementary skills of which they are proud. There is something different now, I believe, from yesteryear's traditional role of the lawyer as the 'man of affairs', the all-purpose rock of an adviser upon whom clients could unfailingly rely. That old boy (and these chaps were invariably male) regarded the law, in contemporary jargon, as their core competence, around which they built more general business acumen.

In contrast, the modern lawyer, who is in denial of being lawyerly, seems to want to argue that they have some different core competence and relegate their legal ability to the background or periphery. I believe this is an indicator of profound forces at play, forces that are lessening the need for the traditional black letter lawyer. When it becomes possible to standardise and computerise the law and legal work, the need for the traditional bespoke handling by the conventional lawyer lessens considerably. Once legal practice is demystified, it becomes feasible to decompose many legal tasks into work parcels that can then be sourced in different ways (for example, by outsourcing, off-shoring, and home sourcing), leaving much less for the traditional lawyer to do. When legal service is systematised, legal knowledge and legal solutions, in turn, can be shared and embedded in business practices. All of these ideas are explained in my book. For current purposes, I suggest that lawyers' denial of their lawyerliness is an early and yet crucial pointer toward shifts in the legal market: lawyers are adapting to a world in which much conventional legal work is routine and can be handled differently and by others, and in which clients require actionable and practical advice that extends well beyond legal analysis and word-smithing. There is a hint here too of a confession from lawyers - they know that there is room for change and improvement, and that client satisfaction is not always sky high.

Whether consciously or not, in order to survive, many lawyers are widening their range of skills, broadening their sphere of impact, and are anxious that the world does not pigeon hole them as detached scribes who sit in ivory towers. Many lawyers, in other words, can no longer eke a living from the law alone. Lawyers, like the rest of humanity, face the threat of disintermediation (broadly, being cut out of some supply chain) by advanced systems; and, as in other sectors, if they want to survive, their focus should be on re-inter-mediating, that is, on finding new ways of invaluably inserting themselves into these supply chains. This will lead, I claim, to the emergence of what I call 'legal hybrids', individuals of multi-disciplinary background, whose training in law will have evolved and dovetailed with a formal education in one or more other disciplines; the formality is important. When most lawyers claim today that they are, project managers or counsellors, they are nothing of the sort, too often they but dabble in these separate disciplines. They are dilettantes, who have read an article or two and possibly attended a few seminars or intensive courses: we would not dare call someone a lawyer on the strength of similar schooling. If lawyers want to re-invent themselves and carve out new multi-disciplinary roles allowing them to deliver new value, then their commitment to these neighbouring areas of expertise must be deep and our law schools should be gearing up accordingly. In this way, we will also formally be equipping lawyers of the future with the tools and knowledge to solve business and social problems and not legal problems in isolation. I am not suggesting that there will be no call for the traditional legal expert. I am saying there will be less call for these individuals, because new ways of satisfying legal demand will evolve and old inefficiencies will be eliminated. On top of this smaller group of genuine legal specialists and this growing cadre of hybrids, I also envisage the emergence of a further grouping of professionals - the legal knowledge engineers. These are the highly skilled individuals who will be engaged in the jobs of standardising, systematising, and packaging the law. They will be the analysts, who reorganize and restructure legal knowledge, in a form that can be embodied in advanced systems, whether for use by lawyers, para-legals, or lay people.

The third thought that urged me to write the book came into focus when I was informally asked to advise the friends of my sons about possible careers in the law. I cannot pretend to these enthusiastic youngsters that what they have seen in movies or read in novels or even experienced through work placements will bear any relation to the legal world a generation hence. Can any responsible lawyer sensibly state with confidence that legal work in 2030 will be much the same as today? While major oil companies have plans in place for the next 50 years, very few lawyers look beyond the next five. In fact, when honest lawyers are really pushed, most confess to being clueless about how their profession is likely to unfold in the long run. And yet, in England alone, around 15,000 students each year are now being accepted by our universities to study law as undergraduates. Even if we concede that many never intend to practise, we are nonetheless left with very large numbers (perhaps one quarter of a million in the next generation, at current rates) emerging from undergraduate law schools, institutions that, generally, seem to assume and project a model of legal practice that held firm in the mid to late 20th century but may well bear little relation to lawyering of the 21st century. I give lectures regularly at law schools and to legal academics. These talks often provoke interesting discussion but I fear I am regarded by mainstream law professors as an interesting but ultimately misguided sophist and trends such as commoditisation and IT are looked upon as marginal sideshows. Disconcertingly, undergraduate law students are also sceptical. My ideas on the future of legal services may resonate with many General Counsel in the world's largest financial institutions and companies. I may be asked to advise many of the world's leading law firms on possible futures, but law schools, by and large, seem much less willing to engage and are comfortable in assuming that it will be legal business as usual for the foreseeable future. It is clear to me that few undergraduate law schools, in the UK at least, are exposing their students even to the possibility that legal service may be radically different in the future and well within the time-span of their careers.

What, then, are we training our undergraduate law students to become? What should we say to young aspiring, legal eagles about the landscape of the profession they are interested in entering? To what reports or publications should we be directing them? In all my travels, I have found only one, and even that is of limited scope, being of interest largely to major US law firms.[3]

For more than 15 years, I have been a general editor of the International Journal of Law and Information Technology; not once in that period have we received a submission on the subject of the nature of legal practice in the long term. If law schools and legal academics are reluctant to express a long-term view about the future of law, are others stepping up to the plate? Remarkably, they do not seem to be. For example, professional bodies in England, such as the Law Society and the Bar Council, may currently be discussing, supporting or effecting changes that will substantially affect the future of lawyers but I can find no statement of an underpinning vision for the future of legal service. Similarly, the UK Government is unquestionably reforming the legal profession and legal system, at a rate of knots, but in none of the white papers, consultation documents, or speeches by ministers can I locate a clear articulation of the distant end game: taking account of the phenomena that most long range strategic planners are wrestling with, such as, the impact of outsourcing or of Web 2.0 (two phenomena that are disrupting and reconfiguring most sectors) on legal practice. Nor has the Law Commission focused its lens on the future of legal practice. Even major law firms, who invest substantially in technology, very rarely look beyond the likely terms of office of their senior and managing partners, which tends to be about 35 years.[4] My third thought, then, is that no one who might be thought to be in the driving seat of the legal system is thinking systematically, rigorously and in a sustained way about the long term future of legal service. No one seems to be worrying about the fate of the next generation of lawyers. All that can be discerned in relation to the long term is a common assumption (on the part of scholars, professional bodies, government agencies or leading law firms) that legal services of tomorrow will be quite similar to that of today; perhaps more efficient and more business-like but not fundamentally different in nature. It is assumed, I perceive, that legal guidance will continue to be dispensed by skilled professionals as a one-to-one, consultative, advisory service; by and large, no discontinuities, transformations, upheavals, disruptions, or revolutions in the nature of legal service are being contemplated. One possible exception here is the legal publishing community, a market that has changed markedly in the last decade, in its widespread adoption of online techniques. I have found that many legal publishers, from the large and multi-jurisdictional to the small and entrepreneurial, do have a long term view, although it is not one they tend to publicise, for fear, perhaps, of agitating the law firms (of biting the hand that feeds them).

The fourth and final thought, that urged me to write The End of Lawyers? came quickly one afternoon, in the autumn of 2006, in a penthouse flat overlooking the River Thames. This was the unlikely venue for a seminar on the possible impact of the controversial Legal Services Bill and the liberalization of the legal marketplace. In the event, the Bill was introduced to Parliament in November 2006 and given Royal Assent in October 2007. The Bill had been inspired in large part by the findings and recommendations of an important independent review by Sir David Clementi, who reported in December 2004.[5] Clementi had been appointed, in July 2003, by the Secretary of State for Constitutional Affairs (referred to by most lawyers as the Lord Chancellor) to review the regulatory framework for legal services in England and Wales. His report covered much ground; and it shaped much of the Bill before Parliament. In the first instance, Clementi proposed a new regime for regulating legal services and it was this that seemed to capture the attention of most practising lawyers and legal policy-makers. He also recommended much debated new mechanisms for the handling of complaints against lawyers. There was a third major stream of thought in response to concerns about restrictive practices in the legal marketplace, that new legal structures for legal businesses should be permitted. The focal point of the seminar that day was this third and controversial proposed reform, followed by the Government in its inclusion in the Bill, of the 'alternative business structures'. This departure was being mirrored in a few other jurisdictions and anticipated for many more. For the first time in England, there was a strong possibility that, broadly speaking, it would be open to non-lawyers to invest in law firms. During the previous 18 months, law firms' responses to this particular development had been mixed. Some had seen it as an irrelevance, doubting on a variety of grounds that anyone other than lawyers would want to invest in law firms. Others regarded this development as yet another indicator of a decline from the professionalism of a partnership into the relative amorality of the limited company.[6] Still others were rubbing their hands in glee at the thought of being bought out, serving a couple of transitional years under the new management, and then retiring comfortably.

I listened with growing interest to the debate that afternoon. It was a rare experience to hear legal services being discussed as though they were subject to the normal laws of the marketplace and not some kind of special case, sacred cow, or no-go zone. I learned that the value of the market for consumer based legal services in England is well over £10 billion. We were told of market research, by Which?, that suggested almost two thirds of adults thought it a good idea to obtain legal services from common high street brands (supermarkets and banks, for example) [7]. It was concluded, in a bit of a leap, that at least £6 billion worth of consumer based legal services was therefore up for grabs. Only a very few of the delegates were lawyers, most were representatives of high street behemoths whose remit now seems to know no boundaries. These individuals were not committed to the ways of the past: they were talking about call centres, outsourcing to India, online legal services, the automatic generation of documents, and more. I thought then, with complete conviction, that the delivery of legal services will be a very different business when financed and managed by non-lawyers. I wondered what the legal world would be like if dominated or even strongly influenced by the retail industry, by the management methods and ethos of corporate boards, with the backing of venture capital, private equity and other forms of external financing. Would this herald a welcome liberalization and demystification of the legal market or a lamentable collapse of its professional underpinnings? I thought how improbable (and have since had this confirmed by specialists in the worlds of venture capital and private equity) that investors would choose to put cash into the traditional business model of most law firms - hourly billing, expensive premises, pyramidic organizational structures, and the rest. If it were possible to start afresh and build legal businesses from the ground up, surely the hard-nosed investors would not replicate traditional legal service models. They might buy a firm for its brand but would no doubt bring to bear a more contemporary suite of tools and techniques for managing the delivery of legal services. The new wave of investors and managers will surely find that individual law firms and the legal profession are inefficiently resourced and often over-resourced. They will quickly recognize that, within and beyond law firms, there is enormous duplication of effort and reinvention of the wheel; and, in turn, that there are too many lawyers and too few advanced systems.

I reflected further that there would be no reason to suppose that investors would restrict themselves to legal services for consumers. I saw it as wrong-headed to think, as so many lawyers do, that the greatest impact would be felt amongst those who undertake high volume, low margin work. Before long, I thought, the entire legal marketplace will be under scrutiny, so that commercial law firms will also be challenged rather than purchased: I know that clients of such firms are increasingly dissatisfied with the level of fees that they pay; that they are under mounting pressure themselves to reduce their legal spend and that they are pushing for much greater efficiency. Their attention is focussed not only on the discrete high volume work, they are also looking at decomposing high value, big ticket deals and disputes, and identifying what parts of these legal matters can be carried out more efficiently. With around $65 billion being spent in 2007 on the top 100 US law firms and about £10 billion on the leading 50 UK firms, there is likely to be some scope for a saving or two. The major firms may feel they are beyond the scope of commoditisation and systematisation and that, on bet-the-ranch deals and disputes, the legal fees represent but pocket change in the grand scheme. This is not the attitude I find amongst General Counsel of some of the world's largest organisations. These managers are increasingly expected to function as other business managers do: to find ways to improve productivity and to produce more output with less input. In other words, they are under pressure to reduce their legal budgets and spend. Clients' loyalty to conventional firms will be limited if new legal businesses emerge that offer quicker, more convenient, lower cost alternatives to low and high value work that seem to be more geared to the interests of clients and are more business-like in their constitution. Of one thing I am certain - these new legal businesses will embrace existing and emerging legal informatics.

3 A journey in the world of legal informatics

As I mentioned earlier, a journey was also fundamental in the writing of The End of Lawyers? I am referring here to a personal journey - my ongoing activities in the field of legal technology (or legal informatics). It is a field that I find endlessly fascinating and one with which I hope to be involved for the duration. Indeed, it is my professional passion to help bring the law and the legal system from the 19th into the 21st century, in one single technology fuelled bound.

The journey began in 1981, while I was studying law as an undergraduate at the University of Glasgow. IBM had not yet launched their personal computer and it was over a decade before the Web would be invented. Nonetheless, there was a great undercurrent of excitement about the potential of computers and it seemed to me then, as now, that there was no reason why the law should be unaffected by the great changes that were being anticipated. Indeed, it occurred to me that a good deal of the law, with its piles of documents and its libraries of information, would be particularly well suited to the technologies that were emerging. In my final year of law school, I elected to write a dissertation, in place of one of my final examinations, and chose computers and the law as the subject matter. I was especially interested in the extent to which computers might solve legal problems and this led me to the field of artificial intelligence (AI) and law. With the help of a friendly librarian in the law library, I set about finding everything that had been written on this subject in the English language. (An aside: the law library was located on the fifth floor of the university library, a building that was perched on top of a hill; legend has it that the entire building is slipping down the hill at a rate of at least 1 millimetre per year, because someone forgot to factor in the weight of the books when designing the edifice; I remember wondering if computer technology might reduce the number of books and so stop the slippage; I now see that, so far, IT has had no such impact on reducing the amount of print on paper; I presume the library is continuing its journey.) The research librarian found 26 publications in all and I ordered the lot. In retrospect, the research tools we had then were remarkably primitive. There was no question of downloading these articles and being immediately gratified (or not). Instead, I had to use a service known as an 'inter-library loan', the result of which was a delay of about four weeks and then the arrival of smudged photocopies of requested publications. I devoured these and began to formulate my own ideas.

In the end, my dissertation was entitled 'Computers and the Judicial Process'. The final text and two 'carbon copies' were produced, by my mother, using a manual typewriter and transcribed from various long-hand drafts by me. The large fonts on the front cover were created using a kind of sticky transfer known as Letraset. It was a different world. As for the contents of this undergraduate thesis, with the benefit of hindsight, it seems fantastically naïve. Nonetheless, at its heart is a conviction that lives with me today - that there are many aspects of our justice system and the way we practise law that can and should be enhanced or even replaced by computer technology.

Having written this mini-thesis, I was hooked; I wanted to work further in the field. The dearth of publications in the area also urged me to investigate further. From my research, I had concluded that the most significant contribution to the field of computers and law had been made by Colin Tapper, of Magdalen College, Oxford. With a collaborator, David Gold, I wrote to Tapper, rather pushily arranged a meeting, and managed to convince him that I might be an interesting doctoral student to supervise. In October of 1983, I began my research as a post-graduate student at Balliol College in what was a joint project involving the Law Faculty and the Programming Research Group at the University of Oxford. Three fascinating years of study followed and I came to submit my doctoral thesis in May of 1986. It was entitled 'Expert Systems in Law: A Jurisprudential Inquiry'. At the time, expert systems technology was attracting great interest, both in the academic world and in the popular press. These systems were conceived as computer systems that could solve problems and offer advice to the standard of human experts and sometimes even at a higher level. They operated in various domains, but most notably in medicine where there was great excitement about systems that could be fed a set of symptoms and could deliver an expert diagnosis. I was interested in analogous systems in law. I wanted to study systems that could engage in legal reasoning and solve legal problems. Could expert systems in law, I wondered, match the standard of great lawyers and judges?

In progressing my research into this and related possibilities, I drew heavily on the discipline of jurisprudence which, roughly speaking, is the philosophy of law. Although great thinkers had contributed to jurisprudence for several thousand years, I was particularly interested in work of the 20 th century, much of which had focussed on how judges and lawyers go about coming to legal decisions, on the relationship between logic and the law, and on the nature of legal rules. I argued that much of this work was directly relevant for those who sought to build expert systems in law. The fundamental question I asked, and it was a theoretical and philosophical question, was whether there was anything inherent in, or special about the nature of law and legal reasoning that prevented the development of computer systems that could hold stores of legal knowledge which they could apply to the facts of particular cases and so draw legal conclusions. My answer was that, from the point of view of legal theory and indeed computation, there were no insurmountable obstacles to building such systems. I concluded that their scope would be limited. Given the state of AI in the 1980s and the teachings of jurisprudence up until that time, I could not see how computers could at that time, if ever, be programmed to display the creativity, craftsmanship, individuality, innovation, inspiration, intuition, and common-sense, that lawyers often bring to bear in advising clients and solving legal problems. I did claim that expert systems in law could hold large stores of complex, interrelated legal rules which they could apply to problems using some variant of deductive logic. I therefore saw expert systems as legal problem-solvers of a particular type, rule processing systems that could identify the literal interpretations of rules as they applied to the facts of particular cases. They could not hope to simulate the subtlety and sophistication, and reason at the level, of the finest judges or lawyers in the hardest of cases but would be of great use, I felt, in solving problems that were straightforward for legal experts and yet hopelessly difficult for non-experts.

I spent about a year revising my thesis for publication as my first book and it appeared the following year, in 1987, as Expert Systems in Law. [8] Although it is now out of print, sold relatively few copies, and betrayed in many places its origins as a self-consciously doctoral offering (and so was almost impenetrable), I still look upon it as a fair contribution to computers and law. I like to think that it demonstrated, at length and in a more academic way than my later work, both the potential and the limitations of IT in the law. Some of my fundamental thinking in the field has not really changed that much in the 20 years that have elapsed since its publication and, in many ways, most of what I have said since, and indeed say in this book, was anticipated in general terms in Expert Systems in Law. That said, I was keen at that time to move from theory to practice; out of the research laboratory and into the marketplace.

The following year, I did just that I took my theoretical analysis and applied my findings in developing, with Phillip Capper, the world's first commercially available expert system in law - The Latent Damage System. The system advised on the law of limitation, by indicating the exact date after which a claimant could not start proceedings in 'latent damage' cases. Research time in this highly complex area of statute and case law was reduced from hours to minutes, as users were taken through a massive decision tree with over two million potential reasoning paths. How did it work? We embodied the legal expertise of Phillip Capper in the system. At the start of the project, he was Chairman of the Oxford University Law Faculty and the author of the first book on the Latent Damage Act 1986 - clearly an expert. A user of the system was asked a series of questions about a case, as though in consultation with the expert, and the system identified when an action would be time barred (that is, when it could no longer be raised because time had run out). It also explained how it arrived at its conclusion. Phillip Capper freely admitted that the system frequently out-performed him. We wrote a book on the project that led to the system (Latent Damage Law The Expert System) and we packaged the text together with a complimentary version of the system (2 x 5.25 inch floppy discs) [9]. As the 1980s drew to a close, feeling that I had contributed both theoretically and practically, I left AI and expert systems behind and started to focus instead on less ambitious but more practical systems that were beginning to take hold in technologically sympathetic law firms - litigation support, know-how databases, work product retrieval systems, and even word processing for lawyers. Personal computers were starting to appear on the desktops of lawyers, even if it was not entirely clear of what use they might be. The cynics regarded them as expensive paperweights. They could not see why lawyers should become typists. The enthusiasts waited for the killer application that might transform legal practice in the way that spreadsheets had taken the accounting and tax professions by storm. I do not think any single legal application of technology has ever fulfilled that hope (although automated document assembly, in the long run, may yet do so). But the birth of the World Wide Web in 1992 was a turning point, an event as pivotal as the invention of the personal computer. [10]

At first, it was not at all obvious to me how profoundly the Web would affect humanity generally and the law in particular. I watched its evolution in research centres and in numerous industries and sectors around the world and I began to see that the Web could provide an entirely new channel for IT enabled legal problem-solving. Whereas, in relation to expert systems, I had focussed on the use of rule-based programming tools into which very formal representations of legislation and case law would be cast, I saw instead the idea of online legal guidance systems. The Web rapidly became my preferred delivery vehicle, carrying much less formal models of the law - practical, punchy, jargon-free renditions of the law as articulated by legal specialists. Whatever the underlying technology and knowledge models, the aim was the same - to spread knowledge and expertise using IT. In this light, I saw that those who were saying at that time that expert systems were dead were, to some extent, missing the point. If we defined expert systems in terms of the underlying technologies, then it was true that comparatively little progress had been made on the commercial exploitation of rule-based systems since the 1980s. However, if we took a wider view, a functional perspective, that expert systems were about making scarce expertise and knowledge more widely available and more easily accessible, then the spirit was alive and well in the mid-1990s, because that is what many contemporary online legal services were all about. I gathered notes and thoughts on the idea of web-based online legal service, read widely in neighbouring fields, visited more research establishments, tested ideas on colleagues and audiences to whom I spoke, and gradually developed a set of thoughts and predictions that I felt were sufficiently coherent to be pulled together into a book - The Future of Law, first published in 1996. [11] In retrospect, I can see that the first phase of my journey was complete. The book set out my stall, captured all of my thinking from the previous 15 years and made a set of predictions about the next 20 years.

4 The Future of Law

The arguments and predictions in The Future of Law were many and varied. Perhaps the most crucial line of thought was that we were witnessing what I called a change in the 'information substructure' in society. I used this term to refer to the dominant means by which information is captured, shared and disseminated within society. I observed, as some anthropologists have done, that you can see that human beings have travelled through four stages in relation to information substructure: the first was the age of orality, where communication was dominated by speech; thereafter, the era of script; then came print; and now into a world where communication is enabled by information technology. I said in 1996 that we were in a transitional phase between the third and fourth stages. (And we still are.)

My next point, and I still strongly believe this, was that the information substructure in society, this dominant means by which information is captured, shared, and communicated, determines to a large extent the quantity of our law, the complexity of our law, the regularity with which our law can change, and those who are able to advise upon it and be knowledgeable about it. If we look at the way the law has evolved throughout history, we can understand this in terms of changes in the information substructure. I argued that there was going to be a shift in legal paradigm; although now the notion of 'paradigm' is rather overused. By this I meant that many of our fundamental assumptions about the nature of legal service and the nature of legal process would be challenged by the coming of information technology and the internet. In other words, much that we had always taken for granted in the past, about the way that lawyers work and the way non-lawyers receive legal guidance, would change through technology. The paradigm shift I anticipated is reproduced in Figure 1.1.

Fig 1.1 The shift in legal paradigm

I also identified a phenomenon that I introduced as the 'technology lag'. This was a lag between two forms of technology: data processing and knowledge processing. Data processing is our use of technology to capture, distribute, reproduce, and disseminate information. We have become extremely adept at this. Indeed, everyone who bemoans the information overload that affects all of us will say we have become too good at data processing. But now, knowledge processing is coming to the rescue. This is a set of technologies that helps us analyse, sift through, and sort out the mountains of data that we have created and helps make them more manageable. Data processing has advanced well ahead of knowledge processing, but the gap between the two, the technology lag, is going to close. When it closes, we will be fully in the information society. I believe now, and I believed then, that we are in a transitional phase between the print based industrial society and the IT based information society. Only when knowledge based technologies allow us more effectively to manage these mountains of data that we have created, will we be fully in the information society.

I talked also of the 'latent legal market', and this attracted a lot of interest. This was the notion that many people in their social and in their working lives need legal help and would benefit from legal guidance but lack the resources, or perhaps simply the courage, to secure legal counsel from lawyers. Things have changed since then; on the Internet we now have vast resources available to people who can obtain practical, punchy legal guidance from the government's 2,500 websites or the many sites of the voluntary legal services sector. I contend there is not just a latent legal market for the ordinary citizen but also for major organisations too, when they too find it difficult (largely for reasons of cost) to secure legal guidance on all those occasions when they need it.

All of this led me to speak about access to justice, not in the sense that Lord Woolf, the former Lord Chief Justice, was then speaking of access to justice, when he referred to improved access and greater access to dispute resolution; but in a broader sense. I had in mind the notion that as citizens we should be able to find out easily and quickly what our legal entitlements are, and in so doing, we should be able to avoid legal disputes. I pointed, at the same time, to a phenomenon I refer to as 'hyper-regulation'. By that I meant we are all governed today by a body of rules and laws that are so complex and so large in extent that no one can pretend to have mastery of them all. I argued then that hyper-regulation means not that there is too much law, by some objective standard, but that there is too much law given our current methods of managing it. Of course I was creeping towards the suggestion that, with the coming of knowledge based technologies; the volume of the law would be more easily managed with the assistance of our systems. I also drew attention to innumerable emerging technologies that seemed likely, at the time, to be tremendously important. It is laughable in retrospect, but email was one of them. When I suggested ten years ago that email would become the principal means by which clients and lawyers would communicate, many people suggested I was dangerous, that I was possibly insane, that I should not be allowed to speak in public, and that I certainly did not understand anything about security or confidentiality but that technology and many other emerging technologies have now firmly taken hold.

A vital and often overlooked point in all of this is that my view, as set out in The Future of Law, was a 20 year view. I was speculating about changes from 1996 to 2016 (give or take). The End of Lawyers? was largely conceived in 2006, that is, at the halfway point of the 20 year transition. It is a sequel to The Future of Law; a central theme is that, while much has happened since 1996, much more is yet to unfold. I believe that within the next ten years - it might be a little more, it might be a little less - we will see this technology lag, this gap between knowledge and data processing, closing. We will emerge into an era in which we will have at our fingertips, through the Internet and other facilities, all manner of legal guidance and legal resources, that were unimaginable ten years ago and I suspect lawyers will find some of what I say here as hard to imagine as my readers did in 1996.

5 Progress over the last decade

So, what progress have we actually seen over the last decade? In terms of technology, I think it fair to say that the last ten years have witnessed some mind-boggling developments. Let me give a suggestion of scale. On some counts, there are now more than 600 billion pages accessible through the Web. Most of these are available to roughly 1.25 billion internet users (there were fewer than 40 million users when The Future of Law was published). In 2006, the world generated 161 exabytes (billion gigabytes) of digital information (about 3 million times the information contained in all the books ever written, apparently). In the first quarter of 2007, more than 80 million users sold items worth over $14bn on eBay (the online car boot sale). Around 10% of UK retail spending is now online. Each day, more than 50 billion emails are sent; while instant messaging (online, real-time chatting) is enjoyed by more than 300 million users but it is not just text that is moving around the Internet, with dramatic advances in bandwidth, sound and video files are also downloaded with ease. Meanwhile, many cities have wireless broadband access throughout. Handheld machines have also proliferated: most notably, iPods; Apple have sold more than 100 million of these units. And around 20 million users, in the US alone, listen to podcasts (broadly, audio recordings that are made available on the Internet). Podcasts, along with blogs, are examples of the latest wave of Internet innovations. Blogs are personal commentaries that are made available online. There are now more than 15 million bloggers out there. The new era, to which podcasts and blogs belong, is often characterised as Web 2.0. The idea is simple, as internet users, we are becoming much more than passive recipients of the content published on websites; we are now able to contribute and participate directly and substantially; that is why Time Magazine recognized 'You' as its Person of the Year for 2006. [12]

User generated content is coming in a variety of forms. We are sharing our video clips in the online world: YouTube, sold for £889 million, is a user compiled collection of video clips that supports over 100 million views each day. We are supplying our own entries and changes to widely used online encyclopaedias: Wikipedia, the best known, free online encyclopaedia, was launched in 2001. It was created by non-paid volunteers in a remarkably short time, and is said to be as good, in most respects, as Encyclopaedia Britannica but is many times its size and appears in over 250 languages. We are socializing and networking electronically with kindred spirits: MySpace, now owned by News Corp, has over 100 million users; users are becoming providers; recipients are now participants. We are finding radically new ways to communicate, to produce information and to interact with one another. More than 150 million people are said to have online pets, for goodness' sake.

I could go on and on. The reality is that, in a variety of ways, the Internet and information technology have already transformed our communication practices, revolutionised our information seeking habits; and, increasingly, are radically changing the ways we collaborate, network, and buy and sell. I therefore join Kevin Kelly, in asking, as he did in his seminal article in Wired in 2005 - why are we not more amazed? [13] Although we are in the middle of a veritable revolution, people are not generally jumping up and down and getting over excited about it. Humanity is taking the Internet in its stride. Why? Perhaps we are witnessing what psychologists call 'hedonistic adaptation '-the idea that people adapt very quickly to good news. We seem to be taking on board these amazing developments that are changing and enriching our lives, without being especially fazed.

Numerous sectors and industries have been radically altered as a result of the various technologies just noted - publishing, financial services, education, health, property, retail, and many more. What about lawyers, though? Have they moved on in the past decade? Hard though it is to conceive, most UK lawyers in 1996 did not have mobile phones or email; they had no access to the web; very few had laptops; and very few had home computers or handheld machines. E-business was not even on their horizons. There was no concept then, amongst most lawyers, of knowledge management and, frankly, very little interest in information technology generally. So, have they since advanced apace? On this question, I can flip from positive to negative in a matter of seconds. On the one hand, we can be in no doubt that there are notable pockets of excellence, not least in the English jurisdiction. Some legal pioneers have forged ahead, demonstrating the potential of all manner of exotic applications: from online legal advice systems to Internet based auctions for procuring legal services; from multimedia knowledge systems to virtual case rooms. Some law firms have embraced document assembly, e-learning, and a whole bundle of other developments that I have written about in a column in The Times every three weeks and it is to some extent revealing that I have, comfortably had enough material and case studies, to hand, to write more than 100 columns on all manner of fascinating and innovative applications of technology within the legal world. However, if I am really honest, and this is where the negativity can creep in, these success stories remain exceptional. In the words of the Canadian science fiction author, William Gibson: 'The future has already arrived. It's just not evenly distributed yet.' The successes and innovations have been relatively rare. IT and the Internet have provided stiff competition for the phone, the ledger, the library, and the filing cabinet, but the substantive work of lawyers has yet to be reconfigured.

There can be no argument that most lawyers' communication and research habits have been transformed by the Internet. However, many legal practitioners who now have their Blackberry machines and Google as their home page seem to think that they have arrived at their final destination, technologically speaking. The revolution is over. In contrast, I believe that what lawyers have enjoyed so far is little more than improved plumbing. The infrastructure (the global network) is in place now, but the really exciting developments that will penetrate to the very heart of legal service and our legal systems are coming in the next decade. We are just warming up. Lawyers may feel they are through the revolution but, in reality, we have barely started.

How do we figure out what further progress we should expect? While it is tempting (for me, at least) to suppose that most change will be driven very largely by technology itself, to concentrate only on IT would be to let the tail wag the dog. And to leave future thinking and action to technologists would be to let the inmates run the asylum. [14] I now see that it is important also to factor in the disposition of lawyers and, crucially, broader trends in the legal market.

The reality is that most lawyers are relatively late adopters of new technology. Accordingly, we can expect that most law firms will not rush to accept new technologies and may even, in reactionary spirit, resist their introduction. It follows, for me, that listening too attentively to the views of most lawyers on the future is not terribly illuminating. They are not uninterested, objective observers. It is in most lawyers' natures and interests to claim that things tomorrow will be much the same as today but perhaps somewhat streamlined through technology. Lawyers tend to believe, rather conservatively, that the past will offer solid insight into the future. In contrast, I do not find it helpful to be fixated by or driven by what has already happened. There is the danger here, as others have put it, of walking backwards into the future; of being contained and constrained by our current and past ways. I hazard that, at the hands of technology, we are going to experience a number of discontinuities. It may be comforting, but it is naive to hope that we can simply extrapolate from current and recent behaviour and thus identify what is going to be happening in the year 2016 when it comes to legal practice. I suggest that it is a mistake to look for continuity. If we do want to make informed guesses as to lawyers' likely adoption of emerging systems, I am increasingly convinced that it is most instructive to listen to their clients - to determine how their expectations and appetites are changing. It is from clients that we can glean probable trends in the legal market. It is client demand for new working practices and new efficiencies that will ultimately incline law firms to adopt new technologies. A few innovative and entrepreneurial firms will lead the way with some emerging systems but most will wait to be nudged or dragged, by their clients, into 21st century legal practice.



[1] This paper is an edited extract from Chapter One of the author's book, The End of Lawyers? (Oxford: Oxford University Press, 2008).

[2] The author is Visiting Professor in Internet Studies at the Oxford Internet Institute; Emeritus Professor of Law at Gresham College; and IT Adviser to the Lord Chief Justice of England. .richard@susskind.com

[3] J. Seidlet al. (eds.), Legal Transformation Study:Your 2020 Vision of the Future (Minneapolis: DSI and LRC 2008).

[4] A recent exception is the law firm, Eversheds, who commissioned and published a study in 2008 - Law firm of the 21st Century. See www.eversheds.com

[5] Report of the Review of the Regulatory Framework for Legal Services in England and Wales (Final Report, December 2004). See www.legalservicesreview.org.uk

[6] In May 2007, Slater & Gordon, an Australian law firm, became the first to float on a public market. See www.slatergordon.com.au

[7] This research was conducted in 2004. See www.which.co.uk . Also see the various articles in Consumer Policy Review, Vol. 16, No. 6, Nov/Dec 2006.

[8] Oxford: Oxford University Press, 1987. (Paperback edition, 1989.)

[9] P. Capper and R. Susskind, Latent Damage Law - The Expert System (London: Butterworths 1988).

[10] Throughout The End of Lawyers?, I use 'the Web' as shorthand for the rather cumbersome 'World Wide Web'. The inimitable novelist, Martin Amis, is amusing in this context - 'let's not forget that worldwide fatuity, 'www', which cuts three syllables down to nine' - The Second Plane (London: Jonathan Cape, 2008) 195.

[11] Oxford: Oxford University Press, 1996. (Paperback edition,1998.)

[12] Time , December 25, 2006 / January 1 2007, pp.28-31.

[13] 'We are the Web', Wired, August 1995, p.96.

[14] I borrow the phrase from Alan Cooper, The Inmates are Running the Asylum (Indianapolis: SAMS, 1999).