By Jason Wilson
[It is isn't often I come across truly compelling pieces hidden away in the nooks and crannies of the Tubes, but I did a few days ago when by happenstance I plugged Marshall McLuhan's name in with "lawyers" on Google and came across Ross Reeves and his wonderful 2008 article, Marshall McLuhan in the Modern Law Office: Has Technology Changed the Way We Think?, 35 VBA News J. 4, 8 (Oct./Nov. 2008). In many ways, the article was slightly ahead of its time, and only now, after the popularity of Susskind's "The End of Lawyers?," the AFA revolution, and the threatened rise of online legal services (e.g., Google Venture's recent investment of $18.5 million in Rocket Lawyer), does it seem so relevant. Technology (and to some extent the "media") has not only changed the way lawyers think, it has changed the clients'—the customers'—perception and understanding of the profession. Perhaps it is finally time for lawyers to start acknowledging how much we have ceded to technology and how it has and is changing the way we access, think, and argue about the law. Let's face it, in the next five years many legal segments won't be talking about their "value" to clients, but rather their "relevance." Also note that this article was written before Google Scholar, WestlawNext (and WestSearch, the Google of legal research), Twitter, Facebook, Avvo, LinkedIn, etc. How these technologies are changing us—rather than our output—needs to be discussed now, not posthumously. Mr. Reeves article is reprinted, with permission, below. (Image (CC) by Butte-Silver Bow Public Library)]
Marshall McLuhan in the Modern Law Office: Has Technology Changed the Way We Think?
[Reprinted with permission by the Virginia Bar Association News. Copyright 2008 Ross C. Reeves]
It is a commonplace that office technology has revolutionized the way we practice law. Selectrics and “mag card” memory typewriters—yesterday’s cutting edge—are curious relics today. Research is as likely to come from a computer as from a book, and colleagues and clients are more likely to send e-mail than letters.
Although reminded daily, if not hourly, of the impact of these media on how we practice law, we pay little attention to their effect on our mental processes. This oversight is particularly striking because, more than any other professionals, lawyers are defined by how they think.[1]
I. “The Medium is the Message”
This indifference would not be surprising to the late Marshall McLuhan, who observed over fifty years ago that we miss the point when we measure technological change by its output. What a new technology produces, he argued, is insignificant in comparison to its effect on human behavior and cognition.
McLuhan distilled his conclusions into an oft quoted (and much misunderstood) aphorism: “The medium is the message.” It conveys in shorthand his core proposition that “the personal and social consequences of any medium—that is, of any extension of ourselves—result from the new scale that is introduced into our affairs by each extension of ourselves, or by any new technology.” Using the societal effects of machine automation as an example, he observed that “it mattered not in the least whether it turned out cornflakes or Cadillacs” because “the restructuring of human work and association was shaped by the technique [itself].” The medium is the message.
McLuhan’s distinguishing insight was that television’s effects on culture inhered in its very existence. His contemporaries, distracted by concern over the quality of programming content, simply missed the point: It was the very “differentness” of the medium that was revolutionary, regardless of whether it broadcast soap opera or grand opera. In today’s parlance, he would say, “it’s the technology, stupid.”
“History of the Modern Mind”
To use but one illustration of the effect of media on the intellectual culture, we need only consider McLuhan’s eponymous “Gutenberg Galaxy,” the invention of commercially practical printing through use of movable type. Will Durant, writing at about the same time, refers to it as the “typographical revolution” and concludes that “[t]o describe all its effects would be to chronicle half the history of the modern mind.” [2]
Durant doubtless was referring to the effect of book publishing on momentous events in the West, commencing with the Reformation and the Renaissance. But there is another, more literal dimension to movable type’s effect on the “history of the modern mind”. Well into the Sixteenth Century, scholars at Europe’s universities dealt with the shortage of books and manuscripts by studying mnemonics, the skill of committing knowledge to memory. Leaving behind repositories of learning, written and human, the graduate went forth in reliance on his powers of recollection to apply knowledge to worldly endeavors.
The advent of the printing press and movable type changed everything in very short order. It introduced a new world in which knowledge became conveniently downloaded from personal memory to a portable “storage device,” the book. Processing disparate information into a logical synthesis was no longer tied to the intensely internal process of “recollection.” Intellectual activity instead stretched out to encompass “research” into external information contained in mass produced books. [3] The ability to memorize, though valued well into Victorian times as a sign of upper class erudition and discipline, became obsolete as a means of imparting and applying knowledge. The world of scholarship and learning literally turned itself inside out. [4]
Much as the typographical revolution changed the “history of the modern mind,” modern law office media are changing the shape of the legal mind. All lawyers have observed that technological innovations have changed how law firms complete their tasks, but we have failed to appreciate their effect on our intellectual processes. In McLuhan’s terms, we have grasped the effect of media on our professional “output,” but remain oblivious to the message that they are “restructuring” legal culture.
We remain blind at our peril. As Thoreau remarked concerning railroads, law office media may prove to be “but improved means to an unimproved end.” Here we will explore two of the more obvious changes in the technology of law practice.
II. From Idea Processing to Word Processing
The change from mnemonics to books (or from books to electronic media) has a counterpart in the seemingly humble change from typewriters to word processing. To grasp the importance of the word processing medium on the culture of the law, it is useful to recount practices in an up-to-date law practice circa 1970. Thought was communicated in written form by one of three techniques, all in regular use at the time.
Manual electric typewriting was the rule, and carbon copies, “stencils” or “dittoes” were the accepted means of producing copies. Lawyers occasionally called on “hot lead” and linotype printers to prepare documents that were more formal or required widespread distribution. Finally, an innovative firm of the time may have introduced a handful of typewriters that stored word sets on 2″ by 6″ magnetic cards and retrieved them as needed. These “mag machines” were essentially player pianos for typed words and, like stencils and linotypes, were improvements to technologies that dated back at least to the middle of the Nineteenth Century.
Practical experience with this technology showed that adding or changing words was “expensive” in time and money. No associate of the time will forget the icy stare of a secretary asked to retype a “ditto” to correct an attorney’s error or, heaven forfend, to satisfy his pickiness.
More importantly, every new edition of a document created the possibility of error in the reproduction of words, even those that were right the first time. Not surprisingly, young attorneys often gained their introduction to a law practice by proofreading printed or typed documents, checking and rechecking citations for accuracy, and similar rote activities.
In this environment, economy demanded that words be thought about, and ideas crystallized, before they were committed to the page. Any change occurred only after consideration of the cost and the consequences of material delay.
The expense in time and money of getting words on paper meant the lawyer, consciously or unconsciously, had to minimize iterations by determining at the outset what could and could not be left unsaid. The lawyer had to know, or learn, what the statutory and decisional law said and think about the task or problem to be resolved. Brevity had greater value than peripheral, unpersuasive, and repetitive authorities. The lawyer had to exercise judgment in grasping which points of law would be taken as “givens” and which required written elaboration to become convincing. Valued skill sets also included the facility to reason from known principles and experience to the likelihood of their being applied to the specific circumstances of the task at hand.
The economic “externalities” of words also dictated that knowledge and reasoning skills be passed on to the young lawyer by what we call “mentoring” today. It was the inescapable duty of a senior attorney to meet with young associates at the outset of a project in order to think through problems, map out an efficient strategy to solve them, and share insights. [5]
Cornflakes and Cadillacs
With deployment of inexpensive word processing and related technologies throughout the profession now complete, words are no longer dear, in time or in money. As a consequence, the intellectual process of planning, choosing, and filtering what goes into a document has become correspondingly expensive. The economic fact of life is that long documents are cheaper than brief documents.
Given these metrics, it is not surprising that printed pages have grown rife and our way of “producing” legal documents has changed. Any full service law firm today routinely produces 80-page wills for simple estates. Commercial deeds of trust and leases run 100 pages or more, even though most states have adopted “incorporation by reference” statutes covering significant property issues that are likely to arise. The list goes on: 20-page security agreements; 15-page payment guaranties; demand notes that are 5 to 10 pages long; and briefs that would go on forever if not limited by rules of court. Behind all these legal products are innumerable drafts or “versions,” easily prepared and produced by computers and printers. None of them gets shorter in the process.
McLuhan cautions that all this paper is merely an “output” of a broad technological revolution that carries a deeper “message” about our identity as users. Whether or not we engage in a better or more efficient means of practicing law than obtained yesterday is an argument as pointless as debate over the relative worth of cornflakes and Cadillacs, soap opera and grand opera. The important consideration is that word processing has caused lawyers to create a new legal culture based on a radically different way of thinking.
Technology-Driven Lawyering
No development in the law during the period of this transformation requires this prolixity. [6] It nevertheless does happen, day in and day out, simply because the technology makes it cost-efficient. The efficiency of our machinery and software has recalibrated the efficiency of lawyering. Today’s lawyer has no occasion to contemplate what should go in a document, and therefore no need to think about what the law, if left to its own devices, “does” in the circumstances at hand.
Word processing technology is efficient at solving legal problems by making words and is not efficient at assisting a lawyer in creating thought or applying logic. The technology works best when the “processing” of words is not clogged with learning, mentoring, selecting, and creating. Lawyers have uniformly adapted their mental processes to this phenomenon, unconsciously conforming their means of thinking about legal problems to the electronic template. These skills—key to the identity of lawyers a mere thirty years ago—have gone the way of mnemonics, and their departure has profoundly changed who we are as lawyers. [7]
Perhaps more important in the long run is the sense that we are cutting our moorings to the common law. If it is inexpensive to churn out documents that restate every legal rule since the Magna Carta, it hardly behooves lawyers to learn that the rules embody principles which in turn inform what we do. Similarly, when forms can be “pulled up” with a keystroke, practical economics drive the lawyer to the database rather than the case file or the library. Under these circumstances, we should not be surprised when the notion of the common law as a vessel for a community of values becomes an archaism—an extremely inefficient means of storing rules.
III. Reinventing Research
The queen bee of technology in today’s law firm is, of course, computerized research. It has two major components. The first is comprised of data bases such as WestLaw and Lexis. The second component is the search engine, which directs the way in which data (legal authorities in this case) are located and consumed.
It is incontestable that the data bases of computerized research are extraordinary additions to the availability of legal authorities. But though our attention is drawn to the sheer volume and diversity of information they provide, measuring data bases is a distraction, an argument over the relative worth of Cadillacs and cornflakes.
Searching for words in all the right places
The effect of computerized search engines is altogether different. It is a technology that has transformed legal thinking and thus the nature of lawyers themselves. It is routinely described as an ancillary tool, a mere supplement to research as it has traditionally been conducted. Law schools often reinforce this notion by quaintly insisting that first year students learn research skills with books before “supplementing” their arsenal with Lexis and WestLaw training. This first year experience with books is no more than an exercise in nostalgia, like wearing freshman beanies or teaching mnemonics. The experience of any law office is that computer time generated per attorney increases with each year’s class of associates. A young attorney today is more likely than not to start and end, rather than supplement, a project with a computerized “search.”
Is there truly a difference? Any technological medium drives people to do what it does well. What a search engine does well is find and retrieve data. Because in the legal field that data is comprised almost entirely of words, computers demand that research be a process of identifying and retrieving words and phrases, an elaborate game of “Go Fish.” This way of approaching legal issues has not been employed at any time prior to the current generation of practitioners.
Whether a search is more or less elaborate, the computer-assisted attorney’s first task is to identify words and phrases that will likely be used in the data base of cases and other authorities. It is not initiated or guided by reasoning but by the logic of vocabulary and syntax. The technology excludes from the “search results” whatever does not contain the words or syntactical parameters put into the system, and it incorporates data that are irrelevant, all before an analytical thought has been applied to the authorities it “finds”. Reasoning by analogy is relegated to the bottom of the list of priorities, if not excluded altogether.
By the happenstance of that initial decision on vocabulary and structure, the search will be overinclusive or underinclusive. Underinclusiveness occurs when information is excluded simply because the author of the “source document” has chosen to express thoughts through syntax or words that are different from those chosen by the researcher. Overinclusiveness is the flip side of the coin. Once the lawyer has conceptualized a legal issue in word parameters, a matrix of relevancy has been established. But more often than not, the data base (doing what it does best) returns a dismayingly long list of authorities. The attorney sets about the task of making it manageable by excluding some of the very parameters that were initially chosen as appropriate, for the sole purpose of limiting the original conceptualization of the problem. What was relevant by definition when the search began has now been rendered irrelevant. Thinking he is “managing” the output of the engine, the lawyer is instead having his intellect managed by the technology.
It may be fairly argued that this phenomenon is no different than a lawyer deciding which books to pull off the shelf, but surely the thought process is different when one is organizing thoughts instead of rearranging words. Legal authorities are not thesauruses.
Deconstructing “Authority”
It is difficult to articulate, and equally difficult to overemphasize, the change in legal thinking brought about by this method of research. Locating authorities on the basis of vocabulary and syntax unhinges them from intellectual judgment about their credibility or persuasiveness (i.e., their “authority” itself). In the final analysis, it creates a mindset in which the attorney is seeking support for preconceived ideas rather than a qualitative understanding of the issue. The process itself has transformed the lawyer from an “idea specialist,” dealing in the relevance, development and logic of intellectual concepts, into an extension of the computer itself, looking for an efficient way to retrieve ideas.
Consider for example this statement introducing a computerized research engine recently offered to members of the Virginia State Bar. Without commenting on its utility, one may usefully reflect for a moment on what its promoters have to say about its value to lawyers:
“The service supports terms and conditions (or Boolean) searching, natural language searching, and searching by citation. * * * Some of the standout features . . . are its “best-case-first” ranking of search results, which works like Web search engines such as Google, Yahoo!, or MSN Search, with the most relevant results at the top of the list. In addition, users can decide for themselves which cases are most relevant, sorting by date how often the case has been cited in other cases, its relevance score, or even alphabetical order. [It] displays information about cases in a results list, including citation and the most relevant paragraph or the first paragraph of the case.”
The Company’s founder concludes that “[t]hese features help people find the needle in the haystack by sorting the haystack to find needles first.”
The description of the service well describes the technology being deployed by this search engine. The important consideration is its description of the “relevance” of the search results, which is stated entirely in terms of the frequency of words.
Finding the Needle in the Haystack
Prior to pre-computerized research, the lawyer’s quest began with the “haystack.” She began with the fundamental question of where to begin to locate authoritative answers. To ask “where do I start” commenced a hierarchical thought process by asking the location of the wellspring of the issue: viz., a statute, a constitution, a body of common law. The answer to the question led in turn to related glosses, treatises, and annotations—resources chosen for their quality by those in charge of the firm or bar library. These resources themselves imposed and embodied intellectual hierarchy: they were authored by scholars recognized by their peers as qualified to teach the concepts around which the work was assembled, and the authors in turn acted as gatekeepers in selecting persuasive and provocative lines of judicial decisions.
The researcher necessarily followed “idea channels,” developing his own conclusions under the guidance of a recognized treatise before setting out to deal with case law. If this process seems stultifying to younger attorneys, reared in a deconstructivist culture, it is perhaps because they are confusing treatises with “hornbooks.” The great treatise authors—Blackstone, Collier, Glenn, Scott, O’Neal—challenged rather than conformed the lawyer’s thinking. By contrast, it is the silos of computer-generated research that invite her to begin at the end by wading through a static pile of “needles,” comprised of undifferentiated data, free of the discipline of experience, “context,” and history.
A recent exemplar of the difference between the old and the new approaches to research is illustrated by a recent dust up in Virginia over effectiveness of the science curriculum used in its public schools. A national organization ranked the state’s educational system as deficient in science because of its alleged devotion of educational time to “creationist”—or at least antiDarwinist—theories of life. The state countered with a study showing that its science programs were quite orthodox and nationally respected.
What was the difference? The first study examined the printed curriculum guidelines by a computer search for “key words” that the authors determined would connote use of unscientific theories as alternatives to Darwinism. The one cited by the state, on the other hand, examined the actual content of the curriculum and the syllabus. The “unscientific” terminology was indeed there, but in context was irrelevant to the quality of the scientific thought promoted by the curriculum. The “key word” approach looked for and found needles; the traditional methodology looked for and found a haystack.
From Gin to “Go Fish”
Computerized research was likened above to the card game “Go Fish.” [8] Pre-computerized research may itself be likened to Gin. A Gin player draws a card to her hand, assesses its “relevance” to existing holdings, and discards or keeps it. The player must then assess what card holding is most relevant to the objective of matching all his cards. Unless picked up by the opponent, the discard is never seen again, although its retirement remains relevant to assessing overall strategy with future draws. The “Go Fish” player succeeds by guessing which card his opponent is likely to have.
Whether one likes playing Go Fish or Gin is largely a matter of taste. The object of each game is the same, matching cards into sets. As with cornflakes and Cadillacs, neither one’s preference nor the outcome of the game is of lasting importance. What is important is that the thought process is different, and Gin aficionados may be said to be different people than Go Fish players.
IV. What Else?
For better or worse our technology has transformed us as lawyers by transforming our way of thinking. Seriously reflecting on what is good and what is bad about the changes we have absorbed is a worthy but underserved enterprise. Remarkably little literature, much less scientific study, is out there to help us understand the phenomena addressed above—at least according to the author’s computerized search.
Hot and Cold
Other aspects of our new media cry out for some attention. McLuhan was a keen observer of the difference between absorption of information through the “hot” medium of books and the “cool” medium of television. What he did not anticipate was the merger of the two in the form of computer monitors, which embody both the saturated mental sensations evoked by the phonetic word and the passive receptivity induced by television. Does “convergence” of the written word and the electronic word poise special challenges in understanding the way in which lawyers absorb and process information? Amazon’s gigantic investment in “Kindle” suggests that it does, that the reader’s involvement in physical books produces a qualitatively different learning effect than reading the same words on a computer screen.
Time
And what of time? Today vital information travels across the world in nanoseconds, and not infrequently the very act of transmission interacts with the events of which it speaks. We know from history that the compression of communication time has altered not merely the modalities of work but also the organization of societies. As late as the Crimean Wars, strategists in England based their military and political decisions on information that was often a month or more behind “real time,” and yet they lived comfortably with the delay. A decade later, Lincoln had so adapted himself to the “real time” battlefield information of telegrams that the President’s role as commander-in-chief had been completely and permanently redefined. [9]
The lawyer’s response time has been similarly recalibrated to the disappearing gap between occurrence and awareness, but no one inquires whether that adjustment is just speeding up the Newtonian clock or creating a quantum approach to putting information to work.
The Document Life
The written document generated by law firms is a different creature than it was forty years ago. The same pertains to clients as well, and it is not uncommon for even small businesses to generate several gigabytes of materials in a year. At some point, it must be asked whether the existing discovery rules, and related evidentiary rules, make sense when companies have no control over their own paperwork.
The abhorrence of “trial by ambush” that formed the predicate of the Federal Rules of Civil Procedure in the Thirties takes on an entirely new meaning when the ambush will likely be sprung from a party’s own E-mail files. At a recent conference, an expert on the new “E-discovery” rules discussed pre-trial agreements on the production and use of client documents. Of particular concern were avoiding inadvertent waiver of legal privilege and the importance of having electronically searchable documents. Without a trace of irony, he observed that both issues were rooted in the fact their firms could not examine all the documents they were producing, much less all the opponent’s documents, except through computerized “key word” searches. One may well ask whether our system of civil litigation can long survive internal contradictions of this magnitude.
“Tribalism”
More internalized questions may also be profitably explored. McLuhan spoke of electronic communications—meaning primarily radio and television-as creating a “global village,” which he predicted would result in a resurgence of “tribalism.” As the technology of broadcasting—as opposed to point-to-point communication—grew, the traditional political and social structures uniting people’s loyalty would give ground to new relationships based on more narrow interests. With “telecommuting” opportunities expanding, the personnel of the workplace will change dramatically in diversity and in quality. But the price will be paid in lost collegiality and learning by “walking around.” Does this phenomenon foretell the concentration of law firms as institutions, as suggested by the phenomenon of megafirms, or does the megafirm really represent a confederation of “tribes” identified by sex, age, practice, and personal preferences?
The structure of the firm is surely changed, for better or worse, by these developments. Attorneys of all ages are more likely to be wired into megafirms, but are also more likely to consult or simply socialize with others far away than with practitioners within the firm itself.
* * * * *
The culture of practicing law, and the identity of lawyers, have successfully responded to technological innovation for centuries. We are now driven by technology to the most profound change in professional identity since the Renaissance. Like it or not, we have the wolf by the ears and will do well to ponder the social and personal consequences of holding on or letting go.
- [1] “Whenever law faculties are asked what is it they find to pass on to their students, the phrase ‘thinking like a lawyer’ is the first thing they say. Often, that is the only thing that they say about legal pedagogy.” N. Rapoport, Is “Thinking Like a Lawyer” Really What We Want to Teach?, 1 J. of the Assoc. of Legal Writing Directors 91, 91-92 (2004). Dean Rapoport observes that “[n]o one expects a doctor to ‘think like a doctor’ . . . We expect her to be a doctor. The same is true of those who have been trained as engineers, research scientists, car mechanics, and air traffic controllers.” Id. at 92-93. ↩
- [2] Will Durant, The Reformation 160- 61 (Simon and Schuster New York 1957). ↩
- [3] The word “research” did not appear in the English language until the late Sixteenth Century, a derivative of the French for “search thoroughly,” the prefix “re” being an intensifier rather than an indicator of repetition. The verb “recollect,” by contrast, is from the Latin for “gather up.” The new word (research) suggests actively seeking knowledge from external sources; the latter is clearly limited to consulting what has been learned and committed to memory. ↩
- [4] The ability of humans to absorb and exploit this “culture shock” is not difficult to grasp when we contemplate pocket calculators, PDAs or cell phones. We find our facility for the mechanics of mathematics slipping and our memory of telephone numbers weakening. We have “outsourced” those mental functions to portable machines. ↩
- [5] No one should infer from the foregoing observations that lawyers were more capable or smarter “back in the day,” and in fact a compelling argument can be made for the opposite conclusion. The same technological limitations that placed a premium on inductive reasoning and prior planning also resulted in some bad lawyering and imperfect legal products. ↩
- [6] Surely a significant amount of this increase is attributable to, or at least blamed on, factors other than law firm technology. The extending reach and variety of the decisional law, statutes that encompass entire volumes, and the increasing complexity of financial “products” on the market have all played a role. But it is syllogistic to conclude that prolixity is caused by complexity. ↩
- [7] It is neither fair nor accurate to conclude that the present modes of thinking arose from an infusion of young lawyers. Their elders have shown that old dogs certainly can learn new technologies. ↩
- [8] In “Go Fish”, one player takes a turn by asking another for the latter’s holdings of a particular card group, as in “give me all of your sixes.” If the opponent has no sixes, she replies “go fish,” and the asker has to draw a card from a pile. If the respondent does have sixes, she will have to fork them over and the requesting player gets another turn. When a player has acquired all four of a kind they are put down. The player with the most matched sets is the winner. ↩
- [9] Tom Wheeler, Mr. Lincoln’s T-Mails: How Abraham Lincoln Used the Telegraph to Win the Civil War (Collins 2006) ↩
You must log in to post a comment.