by Brock Rutter, Esq.
Preparing For The Increasing Pace of Technological Change
Since the fall of 2009, I have been for- tunate to be involved in a project that is playing a small role in the ongoing evolu- tion of legal education and practice, one that I hope will also have a major impact on students at Vermont Law School. A for- mer professor, Oliver Goodenough, asked me to help design a course around what law students need to know about technol- ogy in the practice of law. Our central idea was to pursue the technology of law rath- er than the law of technology—what tech- nology can do for law rather than how law governs technology. At the time the idea seemed impossibly new and challenging. We got to work, gradually devising an out- line for a course that we thought hit on the most important elements that could fit into a three-credit course. Together with Jeanne Eicks, then IT director at VLS, we taught our course for the first time in the spring semester of 2010 and have repeat- ed it in each of the next two years. While the basic structure of the course
has remained the same, we have revised it slightly each time. To me, by far the most striking change, however, has been in the mood surrounding the field. There is a growing sense that the moment to re- think the role of technology in law and in law school is now. What once seemed like a lonely field is increasingly packed with par- ticipants optimistic that change is coming. In a sense, it seems that at VLS we stepped into the field at exactly the right time. We wanted to teach what students need- ed to know about how technology can work for them as lawyers. We consciously sought to differentiate our focus from the already red-hot field of the law of technol- ogy, mostly dealing with IP. Instead, we were interested in the technology of law. We later found a pithy definition that had already been put into use by others; “Think of a lawyering verb—interview, investigate, counsel, draft, advocate, analyze, negoti- ate, manage and so forth—and there are corresponding electronic tools and tech- niques.”1 We eventually designed a course that we thought captured the most important ele- ments of the lawyering activities comput- ers can do for us or help us do better or faster and what students needed to know about each. A unit on legal process auto- mation included document assembly and expert systems. That section involved using computers to produce output, in the form of actionable advice or documents intend-
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ed to have legal effect. We also looked at the theoretical implications of when com- puters can and cannot improve the legal process, with an eye toward different sec- tors, from the high end such as corporate in-house use of technology, to legal aid, to some spectacular failures of legal technol- ogy.2
Another major section looked at e-
discovery, “[t]he process of collecting, pre- paring, reviewing, and producing electroni- cally stored information (“ESI”) in the con- text of the legal process.”3
This led into a
discussion on the nature of lawyering in a world of “big data” and the role systems for organizing massive amounts of data will have for lawyers of the future. Throughout, we gave substantial treatment to the eth- ics implications of delivering legal services over the Web, focusing as much as possible on areas that might be relevant to the small firm and solo practitioners.4
A hallmark of our course has been the use of hands-on projects as a means of teach- ing and grading. Each iteration has includ- ed a document assembly and expert sys- tems project, an e-discovery project, and a practice-based project, such as designing a website for a practice that would deliver le- gal services over the Web. The first project has been especially rewarding to me as it is based on programs with which I have much experience. The students built both an ex- pert system to provide advice and a doc- ument assembly system to produce docu- ments depending on the answers to ques- tions asked of users. An expert system de- livers advice based on a decision tree mod- el. Document assembly also follows a deci- sion tree model, but the goal is to deliver finished documents of some sort (or a first draft as a productivity aid.) The Vermont judiciary is also involved in a legal aid document assembly project. Since 2009 I have been programming in- terviews based on the A2J “Access to Jus- tice” platform developed by the makers of CALI (Computer Assisted Legal Instruc- tion) and hosted by Law Help Interactive (LHI), a non-profit organization funded by the Legal Services Corporation. A2J is used by many state legal aid groups to provide easy-to-use legal assistance. Most projects are undertaken by state legal assistance non-profits, whereas in Vermont the judi- ciary has taken a more active role and is di- rectly involved in the project to provide as- sistance to pro-se litigants.5
The students used A2J and the docu- ment assembly software HotDocs to build
THE VERMONT BAR JOURNAL • FALL 2012
their own programs that could answer sim- ple legal questions, such as whether a hy- pothetical company was suitable for non- profit incorporation, and a document as- sembly program that could build cover let- ters for a resume or legal documents.6
The
focus was on learning the principles be- hind how such a project works rather than the substantive law. The A2J and HotDocs functionality were never integrated, as they are in most legal aid projects, including Vermont’s. The limited scope of the project was necessary because of the number of subjects we sought to cover in the course. It would be easy to imagine a more in- depth integrated project taking an entire semester of a three credit course.7
Hands-
on projects remained an important compo- nent of our course throughout the semes- ter. With some variations we assigned proj- ects involving e-discovery, such as a mock litigation situation, or offering policy guid- ance to an institution such as a school. In the final project of the course we had stu- dents design a website for a firm or solo practitioner that would offer legal services over the Web.
In other instances we were able to draw on the time and expertise of people who are making a difference in the intersection of law and technology. We were pleased to host speakers including Justice Dooley of the Vermont Supreme Court, practicing lawyers, vendors of law office technology products, and staff at the Securities and Ex- change Commission who commented on what that organization is doing to make the massive amounts of data it holds navigable and usable in legally significant ways.8 A recurring topic of discussion in our
class has been how technology can ad- dress the perceived deficiency in the legal profession caused by the failure of the tra- ditional business model to provide quality services at prices that are both affordable to many consumers and able to provide de- cent livelihoods to lawyers. Pressure from non-lawyer legal services, such as Legal- Zoom, underscores the issue.9
The growth
and success of non-lawyer legal servic- es presents a conundrum for lawyers; on the one hand the millions of dollars being spent on services such as LegalZoom might represent money taken from the pockets of general practitioners. On the other hand, it’s possible that the customers of such sys- tems would never have been able to afford traditional legal services. They may in fact represent what is sometimes called the “la-
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