Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at firstname.lastname@example.org.
Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.
Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at email@example.com.
Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at firstname.lastname@example.org.
Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally,
to seek enlightenment. Email Ernest at email@example.com.
About this blog
Between Lawyers provides just-in-time group commentary on the issues
raised when technology, culture and the law intersect. We take you
behind the firewalls and conference room doors to show you how
experienced lawyers deal with these issues and help you prepare for
the new challenges we all face. For more, see our introductory post.
Stealth Legal Start-up Gets $10,000,000 of VC Investment
Kevin O'Keefe spots a VERY interesting development in what might be the future of legal services for consumers. Kevin's take on this is eye-opening. Avvo is definitely something to watch for those interested in Law 2.0.
Doc Searls has a very good introduction to the increasingly important notion of the Live Web.
The money quote:
Blogs are not just sites. They are also journals — live ones, to be exact. (Significantly, Brad Fitzpatrick named his blog system LiveJournal.) When you save a blog post, Technorati knows about it and indexes it in as little as 60 seconds or less. I assume Google Blogsearch does the same. Meanwhile Google's main Static Web search engine indexes the entire Web at a less than live pace. This isn't a bad thing at all; just a different thing. This difference is so sharp that Google Blogsearch gives you a choice between "Search Blogs" and "Search the Web".
Denise Howell's notes from her recent talk called "Law That Works" will one day be seen as one of the important theoretical steps toward what will become Law 2.0.
The reinvented law of reinvented TV is built — route-around by route-around — on the damage of things like byzantine music licensing rules, nonexistent Hollywood film licensing alternatives, antiquated procedural niceties, and the inability of our undeniably glorious (when compared with other alternatives) legal system to deliver certainty on a host of business-critical and livelihood-critical issues.
Between Lawyers' own Dennis Kennedy and Tom Mighell are pleased to announce that they will be writing a book on collaboration tools that will be published in early 2008 by the American Bar Association. The book is tentatively titled: "Collaboration Tools for Lawyers: Essential Ways to Work Together with Colleagues, Clients and Even Opposing Counsel."
Nearly every lawyer finds that colleagues, co-counsel, clients and even opposing counsel use the Internet and technology to collaborate and work together on documents, projects and cases. In the simplest scenario, lawyers and clients use the "track changes" feature in Microsoft Word to work together on a document. Technology today lets lawyers take collaboration to the next level. Many legal technology tools now include collaborative elements.
At the same time, lawyers increasingly use the Internet in many ways to work together. From document sharing to videoconferencing, there are more tools than most lawyers can imagine for working together, online.
Two key trends are at play here. First, for years lawyers have understood the clear benefits of collaboration and working together as a routine matter. Second, the availability of simple, inexpensive (even free) collaboration technology has created an environment where working together makes sense to nearly every lawyer in nearly every firm. The push forward on both trends is likely to continue.
Two other important factors also come into play. First, business clients are routinely using technology to collaborate and will expect their lawyers to follow. Therefore, collaboration tools illustrate a classic example of a client-driven technology. Second, events in the world from increased travel costs to possible pandemics make it even more likely that these tools will be adopted by necessity.
To the extent lawyers have experimented with these tools, they may have the nagging feeling that they are simply touching the tip of the iceberg of what might be available to them and how they might use these tools to their benefit. We believe that they are right to feel that way, because it is undoubtedly true.
The book will provide intensely practical advice for lawyers and law firms wanting to take better advantage of these tools and the benefits they bring. It will take a look at how to use these tools wells, focus on both categories of tools and specific individual tools, and provide concrete action steps and techniques so that even the least tech-savvy lawyer can catch up with the early adopters and successful innovators.
Collaboration Tools for Lawyers: Essential New Ways to Work Together with Colleagues, Clients and Even Opposing Counsel, by Dennis Kennedy and Tom Mighell (expected publication date: early 2008)
Tom Mighell and Dennis Kennedy have published an introduction to wikis and a primer on how they might be used in the legal profession. The article is called "Wikis for the Legal Profession," and it appears in the the February 2007 issue of Law Practice Today.
Ken Adams explores the practical potential of using wikis for contract drafting in a piece called "What Are Wikis?" in the New York Law Journal today. Excellent article.
I agree with Ken's conclusion, but I think that the value of wikis will not come through their use as a drafting tool, per se, but as a way to collect the "knowledge" about how contracts are drafted, when you use certain clauses and why, and the like.
Ron and Ross are on top of their games and you'll get some fascinating insights into the ways law firms are using outsourcing and insourcing. We talk about Law 2.0 on this blog on a regular basis and this podcast will give you some practical ideas about what Law 2.0 might mean and what it might look like.
This might sound a bit acronym-soupy and cryptic, but the proverbial lightbulb is over my head at the moment, and I think it will have more impact if you attempt to understand why yourself rather than having me explain. So first, please listen to the current episode of the Gillmor Gang:
Then: consider how a virtual law firm (or a very forward thinking conventional one) might be in the perfect position to leapfrog ahead by eliminating the CRM (customer relationship management) line item from its technology and marketing budgets, and instead adopting a client driven, "vendor relationship management" approach to business development.
There's an excellent article at APC Magazine, warning businesses who lock down their Internet access that they're in danger of losing employees. But that's not all they're in danger of losing. There's a reason "digital natives" are so reliant on the 'Net they will resort to elaborate and policy-violating workarounds: they get things done there. They knowledge-gather. They connect. They market. They produce. What's at stake for businesses who fail to grok this goes far beyond recruiting and employee retention. I give any such outfit five years of soulless survival, at the outside. (Via Techmeme)
Just out this week, Socialtext Open: "Socialtext Open is released under a standard open source license, and contains all of Socialtext's enterprise grade code aside from enterprise management and enterprise integration tools."
Wikis at work,
BEA, IBM, Oracle, SAP Ramp SOA Spec Efforts: "The group also has setup what they call a 'vendor-neutral Web site, designed as a wiki' they will use to collaborate, communicate and gain feedback from developers. There's a place for news, white papers, public specifications and access to information on early deployments."
Chief Justice John Roberts recently told a group of people in Huntington Beach, California that he was not in favor of cameras being allowed in the U.S. Supreme Court. "We don't have oral arguments to show people, the public, how we function," he told the audience. Well, let's stop here and talk about the audience for a second. In case you couldn't guess, the audience was not a bunch of high school students or some civic group. The audience was composed of federal judges and their spouses.
Obviously, the Supreme Court doesn't have oral arguments to show people how the court functions. Even a guided tour through the various chambers wouldn't exactly show the public, or lawyers, how the court functions. So, that statement is basically a rah-rah red herring.
Judges, when they talk amongst themselves (and they do this a lot), strongly oppose cameras in the courtroom. But that doesn't mean it's not a good idea. What's going on is judges are doing the cost-benefit analysis in a way that reflects their sensibilities. They realize that a lot of attorneys play to the cameras and to popular sentiment, and they rightly fear that this will diminish the sanctimony of court proceedings.
But, it's not the cameras that cause the problem (i.e. guns don't kill people etc). It's something else: namely our innate desire for attention, which many of us express in really goofball ways. So, yes, having cameras in the courtroom will exacerbate this problem. First question: is there anything that could minimize the problem of attention-hounding lawyers, if and when cameras are allowed in the courtroom? Second, and more important question: what might be the short-term, and long-term benefits of having cameras in the courtroom? I agree it won't exactly show us how the court functions, but it may show us a lot of other useful things. Maybe it will show us how some things don't function as well as they should. Maybe it will allow us to see for ourselves (not filtered through a reporter's descripition) that certain attorneys are ill-prepared or brazen or stellar or [fill-in adjective].
But, regardless of whether we can reach a consensus on whether cameras in the courtroom might be useful, there is something else to consider.
Cameras in the courtroom are inevitable. Why? Because each succeeding generation expects more transparency and openess, especially from government institutions. This has been a long-running and powerful trend. Nationally, and internationally. So when Justice Roberts says that he and his fellow justices see themselves as "trustees of an extremely valuable institution," he is trying to preserve a tradition that over time will lack the resonance that it now has. If you want to receive applause for saying that cameras will never be allowed in the courtroom then make sure you are speaking to other judges. If you say that to other groups of people you'll find the applause is less enthusiastic. Eventually, there will be no applause outside of the judicial sect for this sort of statement.
In 1996, Justice David Souter told a congressional panel, "The day you see a camera come into our courtroom it's going to roll over my dead body." I don't think that will happen in a literal sense, but it actually could if Justice Souter chose to be buried on the steps leading up to the Supreme Court.
Eventually Justice Souter will pass away. This is an inevitability. And it's virtually inevitable that somewhere in the future there will be a generation of people who will expect to be able to see images of what happens in our public courtrooms, especially the United States Supreme Court. Yes, free speech and transparency are messy things that cause all kinds of problems, but they also have tremendous social force. I completely understand Justice Roberts' viewpoint, and to some extent I agree with it. But, regardless of who among us now agrees with it, the truth is that viewpoint has a limited life-span.
I'm not big on fighting things that are inevitable. I'm more inclined to say: so if it's coming, then how can we create a better transition? But then I'm also not someone who gets invited to talk to judicial groups a lot either.
"Say what you will about the Ten Commandments, you must always come back to the pleasant fact that there are only ten of them," H.L. Mencken said derisively. What kind of scorn would he heap upon the legal system if he were around today?
Average citizens are presumed to know the law, which makes it easier for us to punish or fine them. Obviously, we all know that no one could possibly know even a tenth of the law. Meanwhile Congress and various state legislatures spew out new laws the way an out-of-control popcorn machine spits out fluffy white kernels. And when these laws are drafted (in labored verbiage that only a prim bespeckled encyclopedia editor would enjoy dissecting) are they grouped together in coherent categories? No, for the sake of politcial expediency (read: "you scratch my constituents' backs and I'll scratch yours") these laws are mushed together. Yes, let's put that new missle defense treaty in with the funding package for education. That makes perfect sense to me, how about you Bob?
So what can we do about this situation? Sadly, not very much. Let's use a drug analogy just to grab for something far-fetched. When you have a guy who's hooked on heroin there are clear steps you can take: you schedule an intervention and then put him in rehab. Sometimes it works, and sometimes it doesn't but at least it's feasible. Our legal system went off the rails at least twenty or thirty years ago, maybe more. But a lot of people (many of them in Washington D.C.) are perfectly comfortable with our legal system. Sure we have problems, but we know exactly what to do when we discover one. Just pass that one more law and glom it together with that other law that Bob just pulled out of the oven. And soon it will all be okay.
There is a growing discussion of the relevance of our current court system and the ways lawyers want to use it in the Internet era. More accurately, there is a concern about whether the system continues to be workable.
Ernie points to a recent (and some might call mind-boggling) ruling of a federal judge that requires the opposing attorneys in a case to settle their latest dispute with a game of "rock, paper, scissors."
Ernie does a nice job of explaining the basis point of our court system and concludes, succinctly, that:
Hell, when a federal judge has to tell the attorneys to use a child's game to resolve their disputes then you know the system is completely broken.
I'm willing to be persuaded otherwise, but I completely agree with Ernie. This isn't Law 2.0.
Where do we go from here? What client is going to be happy with this kind of ruling and the behavior that leads to it? Will lawyers chuckle at this and similar stories as they reap the unintended consequences of breaking the court system? If lawyers make a joke of these matters, why should we expect others to take us or the court system seriously? Consider Ernie's comments carefully.
The phrase "the interstices of ivory tower and pop culture" that Denise quoted in the previous post reminded me of the core concept and mission of "Between Lawyers" (see "About this Blog") at bottom of left column of our blog. "Between Lawyers provides just-in-time group commentary on the issues raised when technology, culture and the law intersect."
"From the fistful of judges (including Richard Posner) who maintain regular blogs, to the vast and growing number of law professors and law students who find the time to post daily, it's clear that the real bones and guts and sinew of the national conversation is happening online, and not in print."
What, what, what? What about the practicing lawyers with blogs who try on a daily basis to translate legal issues and legal developments into practical explanations and a conversation that we can all understand.
Look, I like the law professor blogs and law student blogs, but ultimately what we all really want to find are practical answers to real-word legal questions, issues and problems that face us.
Check out Denise's recent post "Apple v. Does Decision Issued" if you want to see where I think blogging is leading us in the ways we discuss breaking legal developments.
I enjoyed Lithwick's article and agree with her main premise about the value of law-related blogs and what they add to the discussion of legal issues, but I'm surprised by the over-focus on law professor blogs and the invisibilty in the articles of the categories where most of the law-related blogs live.
Interstices are OK for some things, but there are good reasons we called this blog "Between Lawyers" rather than "Jurisprudential Interstices."
The Korea Times reports on efforts in South Korea to use blogs or other Internet tools as an alternative to physical appearances in courts.
The money quote:
"Korean courts are now experimenting whether they could operate court trials and hearings just through Internet postings, saving everybody the trouble of actually entering the courtroom," the Korea Times reports. "The Seoul Administration Court recently designated one of its court units,which rules on labor-management relations and industrial accidents,to develop a prototype model for Internet-based trial models by the end of this month. Although the court has not yet decided on a detailed framework, it plans to allow the parties in lawsuits to submit their list of evidence, legal documents and other data on Weblogs or Internet message boards to be operated by the court."
Farmshoring has a catchy ring to it. According to Wikipedia, "Where offshoring is the relocation of business labor to foreign nations, farmshoring is the relocation of business labor to small rural American towns."
I've heard the terms "homesourcing" and "insourcing" to refer to outsourcing work, including legal work, to the US Midwest and other "non-coastal parts of the US. It's an idea that starting to get a lot of discussion and some traction, including in the discussion of Law 2.0. One more piece of "the world is flat" conversation and a new meme to watch..
Also included is a new article from Johnson called "The Life of Law Online" that I highly recommend to anyone who wants to think about where law is headed in an increasingly online world.
The new article ends with this paragraph:
Our geographical, sovereign law may be well suited for regulating physical things and protecting us from real world threats. It will undoubtedly persist in its own appropriate environmental niche. But, even in that context, we would do better to treat it as an organism, rather than a mechanism — viewing it as a complex whole, disallowing efforts to redesign it from outside, discrediting efforts to analyze it by reductionist means. In any event, we must recognize that our current legal organism, transplanted online, will not prosper. As we interact globally over the Internet, we create a new non–local citizenry, a netizenry, occupying many different kinds of online spaces that both need and can create rules of their own. The new global metabolism will produce new forms of social order that use fundamentally different forms of repair, goal setting and legitimation. Our old meta–meta–story of citizen consent to a social contract empowering a territorially local government just won’t work in this new context. But new repair mechanisms, new complex systems, new forms of social order will arise. These will involve voluntary navigation and filters, not voting. They will demand and receive deference from local legal regimes, because they will be better than any current legal systems at creating social order online. Long live the new legal organisms of the net.
A profound and fascinating article. Johnson's writings have been a big influence on my thinking for many years and he is one of the giants in both the legal aspects of technology and the use of technology by lawyers. I'm thrilled to learn that Johnson will be speaking at ABA TECHSHOW 2006, where I hope to meet him and say thank you in person.
Howard Rheingold at Smart Mobs points to the Peer to Patent Project Blog. According to the site, "Sponsored by IBM, the Community Patent Project seeks to create a peer review system for patents that exploits network technology to enable innovation experts to inform the patent examination procedure."
Here's why I put it in the Law 2.0 category
The Community Patent Project aims to design and pilot an online system for peer review of patents. The Community Patent system will support a network of experts to advise the Patent Office on prior art as well as to assist with patentability determinations. By using social software, such as social reputation, collaborative filtering and information visualization tools, we can apply the “wisdom of the crowd” – or, more accurately the wisdom of the experts – to complex social and scientific problems. This could make it easier to protect the inventor’s investment while safeguarding the marketplace of ideas.
The Wired GC reports on recent developments in the "Law 2.0" discussion, which has taken a look at what the current notion of Web 2.0 may mean for the the delivery of legal services and the practice of law. Ideas like open source lawyering, self-service law, virtual law firms and new forms of delivery and billing for services and products all arise in this context.
The Wired GC notes that the Law 2.0 got some recognition, along with similar ideas in other fields, in Dion Hinchcliffe's excellent summary post called "The Web 2.0 Revolution Spawns Offshoots," which references, among other things, the articles that Tom Mighell and I, along with a few other pforward-looking thinkers, helped put together in the recent issue of Law Practice Today.
The money quote from Hinchcliffe's article:
The interrelated, mutually reinforcing concepts in Web 2.0 like true disintermediation, customer self-service, and harnessing collective intelligence, are resonating with many other industries. As it turns out, these industries are in the process of being transformed by technology including the relentless collapse of formal central controls, pervasive Web usage, rapid technological change, and more. These communities seem to be craving a new model for collaboration, relevance, and usefulness. And Web 2.0 seems to give them both a beacon to rally around and a useful set of practices that can then be used for constructive reinvention.