Two things happened this week that caused this post.

1. Ed Schipul, a good friend of mine, attended the Tools of Change Conference 2010 (TOC 2010) and told me that a lot of folks were talking about Nick Cave’s Death of Bunny Munro. It is “the shit.”
2. Don Linn posted his observations about TOC 2010 and said (among other good insights) two things: “[a]lthough there was lots of enhanced ebook talk, most of the conversation I heard was around adding a few audio or video enhancements to text-based titles” and “[w]e need to bring in some gamers and film-makers to open our minds to the possibilities here.”

And today, after considering both of these things I asked myself one question, which lead to more:

• What is the color of thought? If someone thinks something in my novel, can color represent the thought?
• What is the color of speech? If someone speaks in my novel, can color reflect their mood?
• Will you, the reader, hear the sound of my voice in an audio track?
• Will my book come with a soundtrack? If part of my story takes place in a bar, will you hear the din of customers, or the jukebox playing a song?
• What is the color of hatred? If my protagonist is angry, will the color of the text change to a dark crimson?
• Will the page change colors to set the mood? Can the background of my book ebb and flow to reflect its mood?
• If I write part of the book in a language other than English, will you be able to hover over it and read my (not the eReader or Google’s) translation?
• Will my book have sound effects?
• Will the book have a “feeling?”

Don Linn says that after four years, no one is talking about anything new. But with the iPad and other tablets, there is a great deal to talk about.

In the past, we have relied on the skill of the author to make us imagine and give visual context to stories. And I’m not advocating that this change, but merely recognizing that the author has a new set of tools to rely on to tell (direct) the story.

I believe that graphic designers and directors (D&Ds) will be our new publishers. We now have the ability to rethink both the book and writing with the help of design. And I’m not talking unique pieces like Danielewski’s Only Revolutions, which is amazing, or Plascencia’s People of Paper, which is equally impressive, or Savage’s Firmin, or the countless other re-imaginings of print. I see a new partnership forming with D&Ds and authors to create more robust, visually stimulating stories. Stories that eschew videos and stills—which are gimmicks—and embrace typographic design and visual narrative.

Tomorrow, the author is no longer a story teller. He or she is a director, not only making you read, but watch.

[Image (cc) by sabeth718]

I’ve been working my way through all of the responses to The Edge’s Question of the Year: How is the Internet changing the way you think? If you aren’t reading them, you should because the breadth of insight is truly amazing, and the observations will have you, at times, nodding your head and saying “yes, yes, that’s totally right,” and at others, shaking it in disbelief (as if unwilling to accept how we have been changed).  Although I’m not through all 172 responses yet, I wanted to highlight an excerpt from the essay of Stephen Kosslyn, titled A Small Price to Pay:

Even in its current state, the Internet has extended my memory, perception, and judgment.

Regarding memory: Once I look up something on the Internet, I don’t need to retain all the details for future use — I know where to find that information again, and can quickly and easily do so. More generally, the Internet functions as if it is my memory. This function of the Internet is particularly striking when I’m writing; I no longer am comfortable writing if I’m not connected to the Internet. It’s become completely natural to check facts as I write, taking a minute or two to dip into PubMed, Wikipedia, or the like. When I write with a browser open in the background, it feels like the browser is an extension of myself.

Regarding perception: Sometimes I feel as if the Internet has granted me clairvoyance: I can see things at a distance. I’m particularly struck by the ease of using videos, allowing me to feel as though I’ve witnessed a particular event in the news. It’s a cliché, but the world really does feel smaller.

Regarding judgment: The Internet has made me smarter, in matters small and large. For example, when writing a textbook it’s become second nature to check a dozen definitions of a key term, which helps me to distill the essence of its meaning. But more than that, I now regularly compare my views with those of many other people. If I have a “new idea,” I now quickly look to see whether somebody else has already had it, or conceived of something similar — and I then compare and contrast what I think with what others have thought. This inevitably hones my own views. Moreover, I use the Internet for “sanity checks,” trying to gauge whether my emotional reactions to an event are reasonable, quickly comparing them to those of others.

These effects of the Internet have become even more striking since I’ve used a smart phone. I now regularly pull out my phone to check a fact, to watch a video, and to read blogs. Such activities fill the spaces that used to be dead time (such as waiting for somebody to arrive for a lunch meeting).

But that’s the upside. The downside is that when I used to have those dead periods, I often would let my thoughts drift, and sometimes would have an unexpected insight or idea. Those opportunities are now fewer and farther between. Like anything else, constant connectivity has posed various tradeoffs; nothing is without a price. But in this case, I think — on balance — it’s a small price to pay. I am a better thinker now than I was before I integrated the Internet into my mental and emotional processing.

As I read through these essayist’s responses, I am left to wonder how legal research and scholarship will unfold over the next decade.

[Image (cc) by Jeremy Brooks]

In 1984, Dr. Egon Spengler gave birth to a proverbial booger on the end of your finger—a meme that simply cannot be shaken off:

Print is dead.

It’s been a rallying cry of technologists for decades, but when I hear it today, the meme sounds more like a Stuart Smalley daily affirmation. Doggonit. But I suppose that’s just the print bias in me speaking.

A few years after Dr. Spengler’s quip, Thomas Woxland asked 20 legal publishers and 4 law librarians to reflect on the role of a law publisher and what each of them saw to be the future of the legal publishing industry. He collected the responses in his centennial reprise of the American Law Review’s 1889 Symposium of Law Publishers. There were some important names in the business who responded, and from those responses Woxland identified several recurring themes, one of which concerned the future of print:

The first recurring theme is that the occasionally prophesied ‘death of the book’ is not going to soon occur. No publisher, even those who are substantially involved in electronic publishing, see books relegated to the museum of quaint oddities of the past, along with buggy-whips and bustle-dresses, 3-D glasses and hula-hoops. Collections of books—or as we call them, libraries—do have a future; they are not expected to become just arcane reliquaries visited only by adamant Luddites and unreconstructed bibliophiles. Libraries and books will continue to be central to the legal information needs of the legal profession and our society as a whole. [¶] But books are no longer the sole format for legal information. The new information technologies are on the minds of all the publishers; either they are already involved in electronic publishing or they are considering entry into that field very shortly. Again though, a common cautionary theme is present: technology is not an end, only a means to deliver to the legal profession the information that the profession needs in ways that are faster or more comprehensive or more inexpensive or more accessible.

Twenty years later, where are we? More importantly, is print finally dead?

Sure, we (and that is the royal We, meaning law librarians, practitioners, professors, law students, paralegals, etc.) have been talking about the decline of print for those twenty years. And yes, library listservs are now riddled with the ubiquitous “free books with postage” emails. And, of course, there’s no shortage of law libraries reporting that they are dumping print subscriptions due to the high costs of maintaining serials. And the largest legal publishers continue to report a decline in print sales. All the while, technology has continued to evolve, becoming more … human. But does all of this spell the end of the future for print in law?

Before we can answer this question, we should probably consider how we got here.

***

For well over a hundred years, publishers of legal content have been trying to answer the same question: what is the authority for that point? Historically, it would seem that the principle disagreements between the publishers have been over what is authority and how do lawyers find it because they were (and remain) in the business of collecting, packaging, and selling authority. And by authority I mean cases, codes, statutes, regulations, etc.

Perhaps the most significant debate occurred before the 20th Century, and concerned the matter of whether authority should be curated for lawyers. James Briggs, who founded Lawyers’ Cooperative Publishing the same year West Publishing was incorporated, took one view of the problem:

There is a generally felt and frequently expressed regret, on the part of the bench and bar here and in England, for the unlimited production of law books, whether of reports or text-books, which, instead of simplifying and facilitating a knowledge of the present state of the law on any given question, complicate and embarrass it by the very quantity of matter presented for examination and reconciliation. [¶] It is a fact that no one, working industriously ten hours a day, could simply read all the published opinions—hence, the publisher’s duty to render them quickly accessible.

Symposium of Law Publishers at 160. John West, who founded West Publishing, took a decidedly different view of the problem:

It is the work of the National Reporter System to make most available to the legal profession the law as the courts enunciate it, – to collect, arrange in an orderly manner and put into convenient and inexpensive form in the shortest possible time, the material which every judge and lawyer must use. The Reporters with their attendant digests are making the knowledge of the law more certain, diffusing it more widely and equally, and … doing much to unify it, by enabling the courts to harmonize conflicting decisions.

Symposium of Law Publishers at 159. If you’re unfamiliar with the outcome, Briggs lost, West won, and the implications of that victory have had an enormous impact on the practice of law since. At the very least, the outcome made finding the solution to the question how do lawyers find the authority a bit more interesting (and imperative).

To accomplish the goal of finding authority, publishers have, over the years, offered up a “feast of formats,” taking us from print to digital vis-a-vis microforms, floppy disks, CD-ROMs, and online web sites.  Our progression through these formats seems to have been compelled principally by problems of complexity (increasing volume of data), speed (retrieval), currency (perception of real-time needs), and fear (I’m missing something, opposing counsel may have it or know of it). And as we embraced electronic search as a savior, we took to the wheel and went around and around—search, scan, review, print, search, scan, review, print—in our never ending quest to find the authority. If there were ever a truly iterative process (with no happy ending), it is modern legal research.

Today we have access to tens of thousands of databases of authority. We can call up in a second, hundreds of cases to answer the question, what is the authority for that point? Our powers for finding authority are limited only by the bandwidth of our service provider, our online research platform of choice, and our ability to structure effective queries (although WestlawNext seeks to eliminate this hurdle as well).

But despite all of this power and access, we are drifting farther away from appreciating the meaning of and understanding that authority because of one simple fact: lawyers don’t think or know to read good books anymore. And it is between the cover of these books that we can learn the relationship between the authority and practice, between content and meaning.

Why are these secondary sources needed? They are valuable in explaining the interaction between complex laws and regulations, e.g., the Internal Revenue Code and its related regulations and rulings. They provide an essential starting point for researching unfamiliar areas of law. And they synthesize the ever increasing number of decisions whose precedential value must be considered by legal professionals as they apply legal reasoning to any problem.

Symposium of Law Publishers at 84 (comments by L.W. Peterson, President & CEO of Matthew Bender & Co.).

In 1991, Evalyn Greene and P.J. Lucier of Banks-Baldwin Law Publishing made the following observations:

Electronic legal research focuses on word retrieval from primary sources, rather than the use of finding aids or secondary sources. LEXIS’s supposed initial advantage was that the researcher was no longer tied to the venerable West Digest System for case law access. This freedom, however, has created its own set of problems. Researchers on WESTLAW (using free text and digest searching) or on LEXIS (using free text searching) are not necessarily consulting secondary sources for access to relevant statutes or a line of cases. Beginning researchers training on the databases may miss the secondary sources all together. … Legal researchers are taught to seek quick answers to questions framed as character strings. Modern legal research methodology, the flood of information resources, and the infamous short attention span credited in part to television may be creating an environment where less is more.

Symposium of Law Publishers at 44. Those “legal researchers” back in ‘91 are today’s partners in law firms, which should tell you something about who is leading the charge these days. Now, fast forward fifteen years, and things have only gotten worse. In 2005, research conducted by West Publishing showed “associates are almost completely incapable of book research, unfamiliar with print resources, over-reliant on electronic resources, and arrive on the law firm scene with uneven skills and research capabilities.”

So why has this happened? Or more precisely, how has this happened?

The feast of formats following print and microform—specifically electronic search—have only been about finding facts in a virtual stack of documents. The movement to online search was merely to facilitate real time delivery of updates and allow for easier roll outs of new and undoubtedly more expensive databases for lawyers to consume. The entire online system was designed to give researchers access to information within the four corners of a single document, whether it was a case, statute, rule, or whatever. And the UI design followed suit. What the major publishers did was just slice the secondary content and shove it into their fact-finding, search-box, text-reading UI system. It was, and remains, one of the worst implementations of print to electronic ever attempted. The students, happy to not have to walk the stacks, accepted the compromise.

In other words, don’t blame Google for dumbing down legal research. Westlaw and Lexis were the ones that started to make you stupid; Google just finished it off.

Joe Hodnicki over at the Law Librarian Blog captured this problem quite nicely:

First and foremost, the display of secondary sources in itty-bitty content slices by most legal publishers has created a generation of legal researchers suffering from an online myopia, one that does not ’see’ the conceptual interconnectedness provided by the writers and editors of secondary sources and tools. Flattening of this structure by some next gen online services in an effort to be ‘more like Google’ is only making matters worse. This is not a problem that legal research instruction in online use is capable of solving because research instruction is dependent on the resources available. [¶] Essentially, WEXIS has been and is destroying the value created in their own secondary titles by how they are currently being delivered online. This may have significant consequences that future legal historians will discuss because, if not usable, secondary sources won’t be used.

***

So where do we go from here? I see two options.

The first option would be to convince Thomson Reuters, Reed Elsevier, and other publishers of secondary source material to create a new digital platforms and UIs for reading and researching secondary sources that take into consideration the importance and uniqueness of those titles. As a former designer from W. W. Norton & Co. observed,

[A book has a rhythm,] which remains relevant even as the book moves from paper to pixels. [¶] In order to create this rhythm, the book must be designed and composed for the screen. A beautiful digital text can no more be arrived at by ‘converting’ from a print design than a beautiful print book can be created by converting a Word file. The digital book will never come into its own so long as it is treated as a byproduct, unworthy of attention. [¶] Furthermore, digital books should no more adhere to identical designs than their print counterparts; different types of writing, different voices and tempos, require unique approaches to design. The current crop of ebook formats were designed for the novel, and on that they do a fine job; but countless other texts—cookbooks, technical books, graphic novels, books on art, plays, verse—are rendered unreadable by that conformity. If the form of the book is changing, it ought to lead to more variety, not less.

The challenge is to take print titles and put them at the forefront of electronic legal research. Make them important. Unfortunately, this option seems unlikely, particularly if WestlawNext is the future, which makes Joe’s prediction that thousands of secondary sources will continue to go unused most likely.

The second, and more radical, option is to build on the last frontier for print: the desk. Not your square headed girlfriend or boyfriend that sits on top of it, the actual desk; the thing made of wood. It is the only place left where lawyers will put eyeballs on a printed page before they get sucked into Westlaw, Lexis, or another search vendor. It is the only place where they can keep a physical book at hand. It is the only place they are captive. But to be successful, we are going to need three things:  great curators, good design, and fair pricing. And maybe some luck.

Curators

Authors, editors, and other legal writers, who haven’t been gobbled up by the giant publishing machines, are getting harder to come by these days. There are only a few companies left, like mine, that have an entire legal staff solely dedicated to writing books. Some startups like SpindleLaw are trying their hand at managed curation online, a form of crowd sourcing. Carl Malamud, founder of Public.Resource.Org, recently suggested that grants be offered to authors to write treatises in areas where they are needed. Others have suggested that with a good taxonomy we could create content by paying the crowd to put it together one piece at a time wiki-style, another crowd sourcing idea. Still others have suggested that networked blogs can provide the content for us.

Whatever the model or models, the new curators have to know this: writing a desktop treatise or manual is fucking hard. That’s it. This is why I equate writing books to creating software. Writing and coding share similar problems: you have absolutely no idea what you’re going to come across. Such is the nature of the codes and the common law and computers and users. But it can be done. And when you get the right people headed in the right direction, it is an awesome experience.

Design

I speak often about the virtues of good book design when it comes to legal print, particularly with treatises and practice manuals. And I’m not just referring to traditional ideas about design, such as book sizing, paper selection, binding, typography, typesetting, text blocking, and so forth. It’s also about the content creator’s word choices, sentence and paragraph lengths, construction, and taxonomy. There are many moving parts to a well-designed book, but when they all come together you get two things very quickly: meaning and understanding.

There are so many things to talk about when it comes to design, but in the history of working with so many other analytical resources and authors, let me offer an opinion on something I think is fairly basic to desktop book design: secondary source material must be designed in a way that satisfies reader expectations. Many secondary resources have a very loose taxonomy, and authors allow the information to dictate the structure and content. A book’s taxonomy should be built based on the way lawyers practice. When covering the same types of subject matter over many pages, the reader should expect to see a consistent, reliable structure. For example, if you write a subchapter on one type of motion, then the structure of that subchapter should be designed so that 90% of it is replicated for other motions: general information, the motion (who can file, deadlines, form, contents), the opposition (who can oppose, deadlines, form, contents), the hearing, the ruling, the review, etc. This rigid, consistent approach tells the reader they can expect to find answers to the same types of questions for everything else (with deviations based on the subject matter of course). This rule can be extended to just about every aspect of practice, particularly from a multi-jurisdictional viewpoint.

When this rule is violated over and over, however, the reader can’t trust that the product will answer her question or help define it the next time around. When lawyers question the time they will have to put in looking for the answer in a printed secondary source, the author will undoubtedly lose them to search. This philosophy is actually quite hard to put into practice, but pays enormous rewards in terms of research efficiency.

Price

How much to price a book is something that all publishers are sensitive to. Unfortunately, how that pricing gets set seems to have no rational relationship to the actual cost of producing the content, plus author’s royalties, marketing and printing costs, etc. Here’s an anecdote for you.

Big Publisher A (BPa) decides that it wants to compete with Big Publisher B (BPb) in State Z. BPa conducts “extensive” market research to determine that practitioners in State Z really like caution notes and practice tips with their manuals, so they have loaded their new product up with them, even more than BPb’s product. BPb’s similar multi-volume manual sells for $350.00, with annual supplements at $187.00 per year. BPa prices its book at $315.00 per year initially, with annual supplements expected around $150.00 per year. It was determined that the cost of the new product should be about 10% less because “the market supports that price point.” Everyone is silent because the lawyers in the room are dumbfounded by the idea that product content is decided by the marketing department, and pricing is determined by perceptions of market tolerance.

I understand the system, but I’m disgusted by it. There is no fidelity to the ideals Briggs and West held: a genuine debate on how to make the practice of law better. Does anyone even think about how secondary sources once were informed by jurisprudence? For example, the effects of Langdellian legal theory on Williston on Contracts, or Holmesian legal theory on Corbin on Contracts. At some point, publishers forgot this calling, and along the way fair pricing went out the window, with lawyers and clients getting screwed right to the end.

If there is to be a future in print, then publishers should charge a fair amount for a book and customers should expect publishers to make a reasonable, but not excessive, profit off it. As long as we can agree to that, then we can be happy. And the practice (and clients) will be better off for it.

***

In January, graphic designer Michael Johnson was kind enough to respond to Dr. Spengler and the print doomsdayers with a meme of his own. It came in the form of a title to a post he’d written on his agency’s blog, Thought for the week:

If print is dead, then this is a very long goodbye.

In my opinion, the “long goodbye” captures, quite nicely, the relationship between people and print. It has been, after all, a very long affair. And the fact that it took a graphic designer to say it suggests something else about the nature of that relationship: we like a well-designed book.

I would like to extend the goodbye because I see a future for print in the law. I know we will eventually part ways and move to a digital-only environment. Hopefully by then, though, we will have found a way to recreate the rhythm of our books on whatever device we’re holding in our hands.

[Image (cc) Prodromos Sarigianis']

For several hours now I’ve been using a little Java applet called Mousepath that tracks your mouse movements over a single screen. The lines represent the drag, the black circles represent the mouse at rest (the larger the circle, the longer pause), and the white circles represent clicks. It’s an interesting diagram to me because it shows that the center of the screen is “home.” It is where I focus my attention, rest my mouse, and click. The drag moves from the center to the upper corners, and then down again to my task bar. But the movements are only relevant when you consider that I was using Outlook, Word 2007 (ribbons off, customized quick view), Lexis, Loislaw, and Google today. I would be interested to know what other legal researchers’ mousepaths would look like, and if common visual data points could mapped. One of the things I noticed about my drag is that I tend to read text on the screen with the help of my cursor, but I didn’t know it. In a touch-based environment, I won’t be able to do that anymore. Does that seem weird to me? I don’t know yet.

In thinking about the use of programs like these for UI design, I wondered about Thomson Reuters eye-tracking surveys they did for the new WestlawNext. Did they track lawyers’ eyeballs when they were sitting in front of their normal operating environment? Do you tend to look for information in an “F-shaped” manner? Does it even matter? When you look at the mousepath images for other types of users (check these images out on Flickr), it seems like the center of the screen is where it’s at. I’m beginning to think more and more that context menus you can activate in the middle of the screen might actually save time, rather than having to travel to the edges.

Note, the applet does not record travel over dual-monitor setups. I wish it did so I could have a better understanding of travel over the two screens, but as it is, this gives me a good sense of where programs and websites I use on a day-to-day basis focus my attention.

From Techcrunch, a link to 10/GUI, a concept video for touch-based interaction that reconceives our traditional keyboard + mouse combination and overlapping windows UI. What is interesting to me about the UI portion of the video is how much it reminds me of sites like Lumifi that use horizontal tabbing to change the way information is accessed on the screen. Whether this is a better fit for touch-based interaction is debatable, but it is, at least, another idea.

On a related note, I’m going to assume that the panorama/horizontal content navigation scheme seen on the iPhone and most noticeably on the new Windows Mobile 7 will continue to assert its influence over desktop UI design as we move towards more consumer-oriented touch-based inputs.

I recently had the displeasure of having to talk to a partner of a well-known firm about a publication they produced, posted as part of their online collections, and used as part of client development. The problem? The partner had signed off on a document that substantially copied and borrowed from one of our publications without any attribution. As I learned, and had already assumed, the publication was put together by several associates in the firm (presumably looking to make a name for themselves) and the partner was not directly involved in drafting it. It was still his problem though, and his name.

As I spoke to others about this, the question was raised as to whether the firm involved had a plagiarism policy. I didn’t know the answer to the question, and wasn’t about to call back to inquire about the severe punishment that surely would be meted out to the associates. So I polled some of my colleagues, and none of them had such policies in their firm or business. After all, everybody knows you don’t plagiarize.

Turns out the problem is that everyone is thinking about plagiarizing in very specific contexts, for example, a law review article or book. After all, you’re attempting to gain some advantage by submitting those types of documents, like prestige or money. But everything else is a gray area, even though it is really easy to attribute. Here, let me show you:

This is another person’s original thought, and is either a verbatim copy or a tight paraphrase of it. Person, My Original Thought at p. 1 (Winter 2010).

Spectacularly simple right? Hmmm, perhaps on second thought, no.

Let me begin by saying that my interest in plagiarism is two-fold. First, I am a producer and publisher of legal content that analyzes and discusses many aspects of the law, thus, plagiarism is a slippery slope to copyright infringement. A definite no-no in my business. Second, I recognize many of the problems inherent in defining what it means to plagiarize, and so it isn’t as easy as adding attribution in all cases. For example, if a lawyer copies our standard of review analysis for summary judgment practice and pastes it into a brief without attribution, that is technically plagiarism because the lawyer is holding that analysis out as her own, which it isn’t. But if I think the way I’ve written the analysis is clearer, more succinct, or whatever, then there is a greater possibility that the language will find its way into a judicial opinion. This, in my estimation, benefits the practice and perhaps I have a greater obligation to clarifying the law than calling lawyers out for plagiarizing my text. These are problems that are covered, to some extent, by cases like Venesevich v. Leonard, No. 1:07-CV-2118 (M.D. Pa. 2008) (memo op.; 12-19-08) (footnote 2, discussing cases and calling attorney out for plagiarizing his brief), and not the subject of this post, primarily because they have been well covered elsewhere.

No, I’m more concerned with the problem of plagiarism in the context of my opening: professional development practice (PDP), which includes writing for CLEs, speeches, firm publications, newspaper articles, blog posts, etc. And it’s something that isn’t really being discussed in recent literature, but with our cut-and-paste culture I fear it is being either intentionally or indirectly fostered.

I was interested in a recent discussion of “ghost blogging” that took place on the Tubes and over Twitter. It seems that several lawyer-bloggers have decided to take issue with the practice of outsourcing blog material for legal blog posts. The commentary (against the practice) is very marketing-centered, and seems to have reached a consensus that the practice is at the very least unethical, if not an outright fraud on the community (of lawyers and potential clients). I’m not entering that debate, but the commentary serves as a good segue to the larger problem of PDP plagiarism, whether it appears digitally or in print.

In talking about ghost-blogging, Mark Bennett believes that

[h]olding someone else’s resume, face, or results out as your own in marketing your practice is fraudulent. No ethical lawyer could possibly think that any of that would be okay. So how is it okay for a lawyer to hire a ghostwriter to write his blog? When a client hires a lawyer, more than the results or the face or the résumé, he’s paying for the lawyer’s knowledge, intellect and heart—attributes that good writing reveals and ghostwriting falsifies.

Bennett, Rent-A-Brain With Ghostbloggers (Jan. 28, 2010). Scott Greenfield has a more succinct observation that I liked:

To claim ownership of something that’s not yours is to lie.

Greenfield, Cogito Ergo Blawg (Jan. 30, 2010). Although they don’t mention plagiarism, it’s there, under the covers.

In Bast & Samuels, Plagiarism and Legal Scholarship in the Age of Information Sharing: The Need for Intellectual Honesty, 57 Catholic Univ. L. Rev. 777 (2008), the authors survey recent history on plagiarism and authors of legal documents, from judges, lawyers, professors, and law students. It’s an excellent article, and I suggest you read it because it captures most of the problems with plagiarism in each discipline and offers suggestions for combating it. Another good paper is Matthew Mirow’s Plagiarism: A Workshop for Law Students, which also provides practical solutions for recognizing and avoiding problems associated with plagiarism. Unfortunately, neither paper discusses PDP writing. But Bast and Samuels do identify the common thread:

Legal scholarship should be based on intellectual honesty. With writing, intellectual dishonesty is avoided by the courtesy of citing to authority, accurately identifying authorship, and acknowledging those who contributed to the final product. Conversely, a writer who does not cite to the original author risks being unprofessional, giving offense, and being labeled a plagiarist.

Bast & Samuels, Plagiarism and Legal Scholarship in the Age of Information Sharing, at p. 777-78. In other words, the bedrock of intellectual honesty is to acknowledge the shoulders you’re standing on and the others who helped you climb on top to see.

So what should you do? Easy, read the articles I’ve linked to in this post, Google “plagiarism policies,” and build one to suit your firm’s practice with a particular emphasis on PDP, with proper attribution, of course. It won’t solve the problem, but it is a start to a dialogue with your attorneys and staff on best practices. Avoiding charges of plagiarism should not be difficult if attorneys and firms take plagiarism policies seriously and make attribution and verification a part of their PDP.

But, then again, maybe I’m in a growing (diminishing?) minority of attorneys who don’t see this as a problem or care about the intellectual contributions of others or feel like the odds of being caught are slight in comparison to the benefits to be gained or are just fucking lazy. Or worse, they feel entitled to take the information without attribution. It’s this last group that bothers me the most. And if you are hiring Millennials, you should be too because, like the firm I mentioned earlier, you might find yourself on the other end of a lawsuit.

[Image (cc) by Mario Sepulveda]

I’m sure that readers of this blog have already thought this, so forgive me if I’m a bit slow, but with the release of the Apple iPad, it finally struck me that in my lifetime one of my employees will actually say:

What is a mouse?

At that moment, I will think of tube socks, Michael Jordan Nike Airs (the originals!), Polaroids, Commodore 64s, vinyl records, eight-tracks, cassette tapes, VHSes, CRTs, rotary phones, the Motorola StarTAC, the original Star Wars, and so on. I will be amazed that an entire generation of humans will never know that we used a device to move a cursor in 2D space. And then it will really hit me: comic books are dead.

Of course, it won’t come as a complete shock to me as I wave my hand in front of {insert name of whatever we’re calling computer screens at the time} to close my open applications. Certainly by then everything I use will receive 3D input.

We are, according to Bill Buxton, in the final throes (i.e., the next 5 years) of flushing out multi-touch innovation. Assuming, of course, it follows the course of what he considers the “long nose of innovation.” Frankly, given what the iPhone has already done, and what the iPad (and the alleged touch iMac) assumes to do, I can’t say that I disagree with him. More importantly, I’ve been thinking about the extension of multi-touch to online legal research, and whether it will usher in a new paradigm for discovering, researching, gathering, interpreting, or sharing results.

Here are some preliminary (and very rough) thoughts about the matter:

• Website GUIs should be thinking about touch now. Apple’s iWork suite was revamped for touch. In much the same way, publishers who deliver their content online should be thinking about touch interfaces, and not just for mobile phones. For example, are your menus too tight? Do you continue to use textual menus that could be reduced to icons (”Home” instead of a home button, or “Tools” instead of a wrench)? Remember, fingers are not transparent, like a cursor. If the vast majority of legal researchers are right-handed, should we be placing menus on the right-hand side of the screen? This would be contrary to current eyeball-tracking analysis that says we look at screens in a decidedly “F” shape pattern. But does touch change where we look on a screen? (I have an entire journal already dedicated to mock ups trying to anticipate GUI changes based on simple multi-touch gestures. It’s fascinating to think about the possibilities.)
• Does touch change the way we interact with our digital information? How many hands or fingers do you use to read, highlight, copy, create notes, etc. when you are researching a topic? How many books do you have open or documents in print lying around on your desk when constructing an argument? How does your physical (finger) interaction with this material translate to the web? It seems to me that we will see a greater use of context menus that change based on our input stimulus (e.g., one menu when you press and hold, a different one when you drag your finger across the screen, yet another when you use two or more fingers). Right now context menus are very limited, unless you combine mouse action with keyboard commands (something usually reserved for more sophisticated or “power” users).

(My desk on any given day. What is this going to look like in a multi-touch environment?)

• Does touch change the way I present my digital content? What I’m referring to here specifically are the containers legal publishers tend to put their secondary sources into for purposes of search. For example, some publishers limit your search results to a specific subsection of a section of a subchapter of a chapter. Do I display a larger selection of content (e.g., an entire subchapter) because it is easier to scroll or flip through it, much like reading a book?

Having seen and used WestlawNext, it is a modern system to be sure, but it is also several years old already. And the new Lexis system will undoubtedly be much of the same. These systems are going to satisfy the vast majority of legal researchers tethered to the old mouse and keyboard, but we are fast approaching the point on the horizon where multi-touch, like search, becomes a big part of the debate on researching efficiencies. I can’t wait for this debate because I think it will provide opportunities for start-ups to create better mouse-traps for secondary source material, which if Richard Leiter is correct, may be the biggest selling point for Westlaw and Lexis in the digital future.

[Image (cc) by Plastic Revolver]

The last keynote presentation at LegalTech 2010, titled The New Convergence of Intelligence, Intuition, and Information, featured Malcolm Gladwell (author of Outliers, Blink, and The Tipping Point), Dr. Lisa Sanders (Internist, NYT Columnist, and author), and David Craig (Chief Strategery Officer for Thomson Reuters). Below is a curated and edited collection of live tweets by V. Mary Abraham, Jenn Topper, Adrian Dayton, and Michele Kersey. I suggest you check out their Twitter streams for a more complete picture of what is presented below. As part of the process of putting this information together, I also took great liberties in reorganizing it according to topic (read: not necessarily chronological).

David Craig

“There’s an expectation that there’s an online answer for every question.”

Digital info isn’t just black & white anymore; emotional info—the human behind it—carries increasing importance. [Editor’s note: Some of the tweets seemed to suggest that video plays a big role in carrying emotional information. There was no clarification, however, on how emotional information facilitates decision making, such as through sentiment analysis.]

[There were] 2 billion searches on Westlaw last year alone.

[There are a half] million updates on news and info online per second.

Since the crash of Lehman Bros, the number of videos viewed online has increased by 3 times.

Malcolm Gladwell

Rise of information tsunami imperils the ability of the expert to do their job.

There’s too much information; humans have difficulty weighing the data points.

Too much information overwhelms [a human’s] ability to make decisions clearly.

Experts operate by intuition. They don’t always know how they decide.

Intuition of the expert is key despite all the information.

Free up experts from too much information so [they can use their] intuition in cognitively complex situations.

Intuition works best when you decide based on relatively few variables.

Problem [occurs] when experts can’t explain how they make expert decisions. The intuition of the expert is mysterious. It’s opaque to us. There are biases built in as well.

Instead of trying to document best practice [of experts], perhaps we should focus on supporting decision making—decision trees.

Decision trees give transparency to information; gives frugality to the decision-making process; restores intuition.

Medical decisions [are] similar to legal ones. Decision aids improve ability for experts to make best decisions.

Individual cops make better decisions than those with partners. Intuition remains in tact.

To change the way lawyers resist decision trees, start in the law school. Change the expectation.

Aviation industry uses decision aids regularly. It’s in their culture. We need to change lawyer culture in law schools.

Pilots would never think it right to “improvise” at work. Why do doctors and lawyers think it’s ok?

How decision aids are built matter. New technology enriches learning processes, but must be designed intuitively.

We need to redesign the interface for presenting information to lawyers. Building the right learning experience improves intuition.

Must develop tools to organize vast amounts of knowledge. We’ve organized the information in one way; must change how it’s organized [in search].

Focus on the quality of the learning experience. The limitations of computers/screens affect how we learn. Be aware.

It is the interface of technology tools that can determine the level of enhancement of intuition rather than the inhibition of experts.

(On how he researches) He starts with library databases (Jstor) and then moves into the stacks. Info is arrayed differently in the stacks than online. Each facilitates different kinds of serendipity.

We need to preserve time/space to engage in undirected info gathering. This fuels creativity.

Dr. Lisa Sanders

Our instinct [is] to gather as much info as possible before making a decision. This can result in info overload & paralysis.

An expert engages her subconscious to sift thru the data. Then, checks results against authoritative sources.

Don’t reach out for more information; reach for better information. That’s what instinct helps you differentiate.

It is impossible to master most subjects under ordinary conditions. Why would you think you could master it in an emergency?

The difference between a master clinician & an ordinary doctor is experience. They can safely rely on their brain to decide.

What is key is how you organize the content in yourr brain. She is studying how to deliver information to doctors in an orderly way.

We need a system that feeds us information like Pandora feeds us music.

We need a Pandora to give us more relevance and preference to information.

We need a Pandora to help us filter information to find the truly useful information. Then, focus on signal not noise.

Diagnostic aids are helpful to make diagnoses. But they assume [the] need four too much data and can limit creativity & intuition.

The problem with current electronic medical records is that they contain too much irrelevant data and don’t federate information.

Her theme: use technology to filter information and data and locate better data for good decision making. More data isn’t enough.

We don’t need better search. We need better “find”

What we really need is Dr. McCoy’s tricorder—do something humans can’t do.

The Panel

Don’t try to replicate with technology how humans operate. Use technology to help humans operate better.

[Image (cc) by johannes pape]

Well, my embargo has finally lifted, and I’m happy to be reporting on the newest extension of Thomson Reuters Legal’s (TRL) WestlawNext artificial intelligence technology, the WestlawNext “Flash.” Honestly, after having been able to spend a couple of weeks with this objet d’art, I have been blown away. And if you get a chance to experience it, you’ll understand why this is the Next New Device. (Sorry Apple iPad!)

When I received the package, it was housed in some kind of space age material with geometric ridges. It looks and feels like plastic, but it isn’t. I’m fairly certain it is designed to prevent any kind of damage to its precious cargo. It has an easy to open snappish enclosure that emits an audible whoosh sound when you open it. Very cool.

{Space-age packaging. Reminded me of the X-Files.}

Once open, you are able to easily slide out the contents, which includes the Device, a lanyard, and “instructions” for use. When I touched the Device, I was just giddy. I mean, much more so than using WestlawNext on the old Internets. Seriously, when you’re holding its smooth polished finish all you are thinking about is the possibilities. How could WestlawNext.com be smarter than this Device?

Once it is out of the protective space-age packaging, the Device comes alive. It isn’t on, but it’s humming. Just waiting to make a connection. I consumed the instructions because I wanted to get to the good stuff as soon as possible, and learned that the Device “speaks” to other computers by being inserted. Seriously. I read the instructions and thought to myself,

This is so … human.

And sure enough, when I plugged the Device into one of my computers, they talked, without any need for me to intervene or translate. I was greeted by a screen that identified the Device and asked whether I wanted to open files for viewing. That. Is. So. Cool. You can create any file structure you want and name your files whatever you want. You can put anything digital on the Device. You can even search using terms that appear in the files. The results are lightning fast, just like you would might expect from WestlawNext. I have no idea if the Device is communicating with the Mother Ship when it is plugged in or not, but it’s amazing.

One interesting thing I noticed about the Device was the fact that it had a label “2gb” on the backside. The instructions don’t say what this means, but a source tells me that the “gb” stands for giant brain. And when you use the WestlawNext Flash, you get the sense that this is exactly that. How else could it know what I want?

{The mysterious “2GB.” The Giant Brain fascinates me.}

Another cool feature to the Device is the fact that when it is communicating with another computer, it has a solitary red light that glows. In many ways, it reminded me of Maximilian from “The Black Hole.” I know that dates me a bit, but I don’t know how else to get my brain wrapped around this technology.

{The glowing eye of the Device. It’s mesmerizing.}

Once it is done with communicating, you can disconnect the Device and use the TRL-approved lanyard to carry Giant Brain around. And honestly, I think you’ll agree that it looks pretty cool. The Device is almost like a buddy that reminds you of how smart you can be, all the time.

{Giant Brain hanging out with me. How fucking cool is this?}

Before the big TRL launch of WestlawNext.com, I was able to catch up to Sloane Reynolds, who you may now know as the “face” of WestlawNext, to ask her what she thought about WestlawNext Flash. She was really busy and in a hurry, but she said (totally unscripted) that it had changed her life. I tried to get some clarification on the statement, but it was really windy and I don’t think she heard me as she stepped into the limo.

{Sloane Reynolds, who was really busy when I tried to talk to her.}

Over the last couple of weeks, I have found that the Device and I are pretty much inseparable. I rely on it all the time, and never once have I been disappointed. TRL has not told me (despite repeated requests) how much it is going to cost above and beyond a customer’s current Westlaw subscription, but if I had to guess, it will be a lot. In my opinion, though, it’s probably worth it. Seriously, what would you pay for this kind of technology?

Given WestlawNext, and now WestlawNext Flash, what could be next? A digital music player that suggests songs I want to listen to based on preferences? That would be some shit wouldn’t it?