This is a continued conversation from Lawyer as Word Processor and the subsequent rebuttal.
The legal industry has a Microsoft Word problem. And it’s not simply that lawyers aren’t proficient at using the popular word-processing application. It’s that legal professionals often conflate “practicing law” with creating documents. While the rest of the world has gone digital, lawyers are focused on making “electronic” documents that still look and act like paper ones.
Last month, Dan Lear and Casey Flaherty debated the value of bringing lawyers up to snuff with everyday tools like Microsoft Word. Dan questioned how much a lawyer should be focused on word processing, while Casey argued that lawyers can and should master it themselves. Implicitly, both sides agreed that word processing itself is a low-value activity. But the discussion masks a bigger issue in the legal profession. Word is a general-purpose tool outputting a product that nobody wants anymore: paper.
The “Paper Problem” Is Worse Than You Think
All of us deal with the legacy of paper, even if we don’t always realize it. Email, for example, is a construct of the days of letters. With “re:” lines, “cc” fields and “enclosures” (or attachments), email follows the conventions of a mostly extinct medium of communication. That’s fine for correspondence of record, but for the everyday, back-and-forth banter of collaboration, it quickly floods inboxes and overwhelms most users. As a result, smart organizations have begun embracing “post-email” tools like team chat to drive better discussions among colleagues.
The legal industry, however, seems particularly stuck in a paper mindset. Despite digital interfaces everywhere else in our lives, legal workflows haven’t budged. Even when documents are “electronic,” the physical attributes of paper remain dominant. Consider these examples where legal substance is inseparable from physical pages:
- Contracts force the parties to hunt down every referenced document manually. Although hyperlinks were invented decades ago for computers, they don’t exist on paper, so lawyers don’t use them, either.
- Most courts offer electronic filing of briefs, but the rules about margins, line heights, typefaces, page limits, etc., are extensive. This makes the low-value formatting activity more costly, and related high-value activity—searching, extracting, and re-purposing content—immeasurably more difficult.
- West’s case citation system is based on printing court opinions into volumes of reporters for books that virtually no one buys anymore. (For more on this, check out the work by professor Peter Martin).
- Deposition transcripts arrive in a proprietary format based on “pages” that any first-year associate can tell you is a nightmare for compiling into an appendix.
The industry simply hasn’t figured out how to decouple its work from paper. So it’s not surprising that for nearly every problem, lawyers fire up Microsoft Word to craft a solution. Need a contract? We can make a paper for that. File a motion? Your papers are coming right up. Once completed, that work is trapped inside of a terrible format. These electronic documents are rarely printed but still share most of paper’s downsides: no links, no audio/video, and poor accessibility.
Microsoft Word is built for a paper-powered world. But we don’t live in that world anymore.
Ask yourself, what other industry staked its future on making more paper? Newspapers have all but disappeared in favor of dynamic, instantly updated, and searchable websites available on any device. Mail-order catalogs morphed into fully-realized online shopping experiences with suggestions, user reviews, and more. Even the professional world has changed: can you imagine going to the doctor’s office only to see the doctor flip open a laptop and start transcribing your symptoms into Microsoft Word?
But rather than developing an industry-specific set of tools and standards for this digital reality, the legal profession keeps plugging along with Word. Meanwhile, Microsoft itself has recently introduced a new tool, called Sway, helping users work outside the paper paradigm. If we seek innovation, we need to start doing the same.
Thinking Outside the Page
Embracing a new medium of legal services delivery won’t happen all at once or via a single, “Word-replacing” application. It will happen incrementally, across thousands of transactions and a variety of new tools. As lawyers, however, we should be more aggressive in finding and adopting these tools. Where they can’t be found, we need to work with developers to build them.
In litigation, for example, your client might be spending hundreds of thousands or millions of dollars to win a “bet-the-company” case. Naturally, your summary judgment brief is perfect: the arguments are sound, and every citation builds toward your conclusion. To a judge, however, your brief is simply another PDF file with lots of italicized text, hundreds of pages of attachments—and no easy way through it. Why risk the judge glossing over key citations in your brief?
Here’s an idea: consider experimenting with courtesy copies. Most judges are thrilled to have a better way to read briefs. When I worked on large cases, we hyperlinked PDFs with citations and testimony, delivering them to the court on USB sticks as courtesy copies. Today, I would put the entire brief and linked content online in HTML so the judge can read everything on an iPad, jump between sources, and watch deposition video clips with a single click. (A quick review of the site analytics would also reveal which links and clips received the most attention… handy when preparing for oral argument). The judge will engage more with your brief, and the cost is nil.
As courts recognize the value of this approach, more firms will adopt it. Standard practices—and eventually better applications and tooling—will emerge to make building these briefs even easier.
In the transactional world, the possibilities are almost limitless. Most contracts are already written without reference to pages, so why bother using tools like Word? For example, look at Facebook’s Terms of Service: a single, well-organized page with links to incorporated documents. Attorneys today can produce similar contracts using a simple drafting language like Markdown and get them signed using an electronic signature app. The result is a legally enforceable contract that you can view in any browser, on any device.
The most promising development, however, is the concept of “smart contracts.” These self-executing agreements can link property, permissions, and currency through transactions that happen programmatically. I highly recommend a series of articles by Holland & Knight attorneys Joe Dewey and Shawn Amuial, such as this one explaining how smart contracts can streamline real-estate deals. Critically, they observe that smart contracts “are not going to be implemented by tools like Microsoft Word or Google Docs.”
There’s no one path to innovation—only exciting opportunities for those that want to lead. Just because you are stuck in a Microsoft world today doesn’t mean you can’t start improving things. Remember: unless it is written in a statute, a case, or a court rule, then there are no rules. There’s only “how we’ve always done it.” If you can think of a better way to do something, make it happen.