Why Lawyers Need to Use the Internet
Parts 1, 2, and 3
In honor of Colorado Lawyer’s 50th year in print, we’re looking back at some of our most memorable articles. Today, on this Cyber Monday, we harken back to a time when attorneys weren’t quite so sure about the internet. In his three-part series, author David Thomson does his best to convince skeptics to give it a chance (frustration clearly mounting by part 3). Of course, these days, we’re more focused on keeping lawyers off the internet. See, e.g., Just Don’t Do It.
The Internet is one of the mass media’s favorite topics this year—everything from how it will deliver movies to televisions to how sex crimes are happening there. Through the fog, you may have gathered that, somehow, it will be important to the legal profession. This article discusses how lawyers can use the Internet and why it is—and will become—so important.
To date, most legal information—court opinions, statutes, agency rulings—has been passed to lawyers through third parties, such as West Publishing, LEXIS and Matthew Bender. What the Internet, and specifically the World Wide Web (“Web” or “WWW”), provides is a place for the originators of that information—the courts, legislature and agencies—to publish their information themselves in a commonly accessible format. Indeed, because the costs of providing public information on the Internet have dropped so precipitously in the last few years, the information originators are realizing that it is almost an obligation to provide their information in this commonly accessible way. While access to the Internet in order to browse the Web is not easy to set up, it is quickly becoming a mainstream activity and is getting easier every day.
As a result of this movement of legal research information to the Web, today you can get access to U.S. Supreme Court opinions, the Colorado Revised Statutes, most federal agency rulings, a complete set of tax forms and much more; in short, a wealth of legal information. The amount of legal information being added to the Web is growing at an exponential rate. Is all this ready for prime time yet? No, not really. It is plenty useful, but much of it is hard to find. Without a centralized, easy-to-use searching mechanism, it is hard to fully mine the resources of the Web. Fortunately, there are several such searching tools in development; one will need to become the standard across the Web.
While the Internet may not yet be a fully developed, on-line law library replacement, it is plenty useful for e-mail (electronic mail) today. After all, lawyers are not just researchers—they spend a lot of their time communicating with clients, opposing counsel, experts and other lawyers. Phones and voice mail are, and very soon e-mail will be, vital to our practices. The Internet provides a common email backbone—a place where soon you will be able to communicate with just about everyone. Clients (and potential clients) are on the Internet, or soon will be. It is safe to say that most corporations have an Internet presence today or are planning one.
The Internet also provides a place to meet other lawyers (in a nationwide discussion group on ADA law, for example) that you otherwise would not meet. It provides a place to “hang a shingle in Cyberspace”; essentially, to put an information piece about you and your specialty in the law on the WWW. Lastly, the Internet makes location far less relevant. Soon, lawyers will be able to conduct much of their practices from anywhere they choose.
The Internet is really made up of several information services. The most common of these are e- mail and the Web. However, there are other services you may have heard of: Telnet (the ability to log on to a remote computer through an Internet connection); FTP, or File Transfer Protocol (the ability to transfer a file from a remote computer to yours through the Internet); Newsgroups (public discussions on particular topics via e-mail); and Gopher (a search tool for Internet resources).
Many of these other services are becoming integrated into the Web, so if you start with e-mail and Web access, you will likely have most of what you need. If you need to learn about those other resources, you should get one of the general Internet books currently available. One particularly good one is The New Internet Navigator.
To get connected to the Internet, you need a PC (preferably running Windows 3.1 or Windows 95) or a Macintosh, a modem and some particular software designed for the purpose, which comes primarily in three pieces:
- a dialing program that sets up an Internet connection to your provider through your modem;
- an e-mail program that runs on your platform; and
- a Web “browser,” which is simply a piece of software that reads and displays WWW “pages” of information.
There are many general Internet providers in Colorado; they provide basic Internet access but do not focus on the legal community. Among these are Colorado SuperNet, Internet Express and Stonehenge Internet Services. LawyerNet is a provider that focuses on the Colorado legal community.
The cost for Internet access is quite low, usually about one dollar per hour of access, although packages of hours can be purchased at reduced rates. As more and more legal resources are added to the Web—and as the ubiquity of e-mail communication increases—this charge will likely pale into insignificance. That will be especially true if the Web reaches its potential and comes to duplicate many research resources traditionally served only by a complete paper-based legal library.
The Internet continues to be a hot topic in the press today, and lawyers continue to ask themselves why this might be relevant or important to them. After all, participating in a discussion group of people who hate Barney the Dinosaur is not particularly relevant to the practice of law.
This part 2 looks at other developments on the Web that will soon have substantial importance to attorneys. It contains many angle-bracketed hyperlinks to examples of what is being discussed,1 and it is being simultaneously published on the Web so lawyers with Internet access can read the article there and actually link to the example or reference pages while they are reading.
Much of the potential of the Web will be realized when enough people have access to this new communications medium to reach a “critical mass.” After all, a telephone would not do you much good if no one else had one. An amazing thing about the Internet is that no one really knows how many people have access to it. A recent survey by Nielsen Media Research came up with 37 million users in the United States and Canada, but not all of those seem to have access to the Web. The survey concluded that 18 million users have used the Web in the last three months. The survey also found that 25 percent of Internet users have an annual income over $80,000; 50 percent are managerial; and 64 percent have at least a college degree.
The Nielsen survey studied people over sixteen years of age, so perhaps a more accurate survey was one recently conducted of adults only by O’Reilly & Associates. That survey came up with the more conservative number of 5.8 million users with direct access and 3.9 million users with access through online access providers (such as America Online or CompuServe). Interestingly, that survey projects an additional 6 million users will be added in both categories in 1996. Another study that tried to determine the size of the Web itself came up with 16 million pages. Compare this figure to the number that was believed to be accurate as of January 1995—3 million—and you have a growth rate of more than one million pages per month, or 36,000 pages per day.
The Web also has generated an explosion of creative uses for its core function: hypertext linking capability through a common client software package (the “Browser”). Some of those innovations have little to do with law, such as the MIT student who attached a camera to his head, and everything he sees is projected real-time back to his Web site. However, many other innovations impact the law, and that is the focus of the rest of this article.
Content and Citations
Part 1 of this article made the point that legal “content”—court opinions, agency rulings and legislative material—was going to start moving back into the public’s hands via the originators of that content: courts, agencies and legislatures. That is starting to happen. Virtually all the federal circuit courts of appeals have their opinions on Emory Law School’s Web site. State court materials are available, as well, for New York, Indiana, and Alaska, as well as several other states on the Web. Here in Colorado, the Twelfth Judicial District has a home page with lots of useful information, although no court opinions yet.
On the legislative front, federal legislation is available in a number of locations, most particularly the Thomas system, operated by the Library of Congress. A recent example of where and how quickly this is going can be found in the new Telecommunications Bill. Within moments of its passage in early February 1996, it was available on the Web with a hyperlinked table of contents and the complete Conference Report.
Of particular interest to the litigator is a recent filing of a hypertext brief by Stanford University Law Professor Joseph Grundfest (simultaneously with one that conformed to the rules, of course) to the U.S. Supreme Court. Most of the case law and statutory law that was cited in the brief also was hyperlinked to Web locations for the authority. In a press release sent out announcing the event, the professor was quoted as saying: The legal system will initially learn about the Internet through supplemental postings that don’t replace paper. Gradually, we may evolve to an environment where hypertext postings on the net are the rule, not the exception.
Of course, one of the things that has to happen before this virtually immediate access to legal content becomes truly useful to the practicing attorney is for there to be an agreed-upon form of citation for Web-based legal resources, preferably one that is not owned by one private company. There are a number of efforts to adopt a public-domain citation system taking place in several different states, including Wisconsin, Louisiana and South Dakota.
The effort started in Wisconsin, where the Technology Resource Committee of the Wisconsin Bar issued a report in June 1994. The debate really picked up steam in March 1995, when The American Association of Law Libraries published the report of its Task Force on Citation Formats. This report recommends that courts adopt a universal system based on year, court, sequential numbering of decisions and paragraph numbers.
So far, no jurisdiction has actually adopted a public-domain citation system, although South Dakota did recently adopt a joint public-domain and West citation system. The American Bar Association (“ABA”) also has a Committee on Citation Issues, which held hearings in December 1995 and plans to submit a report in August 1996 to the ABA Board of Governors. Very recently, the California Supreme Court invited comment on adoption of public-domain citation style for state appellate opinions and, as of this writing, was preparing to act on the proposal in March.
Information Versus Research
Despite all the interesting and important developments on the content side, in some ways lawyers have looked at the Internet and asked the wrong question. Attorneys want the Internet to be a replacement for electronic research databases, which it is not yet and may never be. However, in setting that as a requirement, attorneys are missing a lot of other information on the Internet that is extremely useful and important. After all, lawyers need to know the facts as well as the law, and the Web is quickly becoming a vast storehouse for factual information that is often very timely.
For example, it is not hard to imagine the potential benefits to a litigator—who is preparing a complaint against Company X—to log on to Company X’s Web site and poke around. Perhaps an organizational chart might be located there, or the last five years of annual reports. In some senses, there is a comparison that can be made between this sort of information and The Wall Street Journal. Many business people read the Journal to remain current on information that is important to their business. Recently, there was a significant case that validated the importance of just this sort of factual investigation.
On September 28, 1995, the Seventh Circuit Court of Appeals issued an opinion in Whirlpool Financial v. GN Holdings, Inc. that was widely commented on because it seemed to state that there is an affirmative duty to browse the Internet in certain investment situations. In the context of a Rule 10b-5 securities fraud suit, the court held that “a reasonable investor is presumed to have information in the public domain” such as the information currently available on the Internet. Although this part of the opinion also has been criticized as dicta, it was an extraordinary development that validated the vastness of the information that even today is available on the Internet.
Cyber-Marketing for Lawyers
Of course, if tomorrow there were a LEXIS/Westlaw replacement on the Web, and it cost no more than $20 or $30 per month, there would be a stampede to Internet services companies. However, as explained here and in part 1, that nirvana has not yet arrived. Part 1 alluded to the ability for a lawyer to put up “a shingle in cyberspace” by placing an information piece about himself or herself on a Web site somewhere, and a more detailed look at the question of cyber-marketing for lawyers is in order.
It is widely believed among the more Internet-aware lawyers that “content is king”—that is, if there is not a lot of content to draw people to your Web site, you might as well forget it. Nevertheless, although there is a lot to be said for having useful content available, often many people just want a small piece of information when they visit a Web site. Rather than a long treatise on the secured creditor exemption under CERCLA, they may just want your telephone number, or to know where you went to law school, or perhaps to send E-mail to five or six lawyers who practice in a certain area of law. There is nothing wrong with placing a simple, resume-type information piece about yourself and your practice on the Web and making its location known to various search engines and listing services.
Some of the larger law firms are putting extensive brochures on the Web, and still others also are adding substance to their brochure and making their site a true information resource.
If you are considering putting information about your firm on the Internet, it is more important to provide visitors with the information they are looking for, without requiring them to wade through a lot of propaganda and other distractions, than it is to have a home page that screams “Hey, look at me!” What are your visitors likely to be looking for? The answer to that question will probably be practice-specific, and should be your guide in developing your page.
The Usefulness Standard
Part 1 of this article concluded that the Internet is plenty useful for E-mail and is becoming increasingly useful for other purposes as well. That continues to be true, but as we approach 20 million pages of information on the Web, the question becomes not whether there is something you want access to, but how to find it. There are several search engines on the Web, but no recent detailed study of their accuracy has been conducted.
What cannot be found on the Web at this time is the accuracy and currency of legal content found on LEXIS and Westlaw. There are plenty of sites that started out with good intentions but whose information is dated because there were no regular updates (in “net-speak” this is euphemistically referred to as a “cobweb”). What will be necessary is a combination of government-sponsored and profit-driven businesses that will develop to deliver the substantive (and up-to-date) legal content that lawyers need.
The attention given by the popular press to the Internet continues unabated. While this may not have been true when parts 1 and 2 were published, today, there is probably not a single Colorado lawyer who has not heard of the Internet. Nevertheless, skepticism still reigns. Lawyers without Internet access accounts continue to ask themselves why this might be relevant or important to them.
This part 3 tries to answer the following question: With all these benefits—which have substantially increased in the last year—why have lawyers not flocked to the Web in droves, and what might it take for that to happen?
Parts 1 and 2 described the many benefits of having an e-mail account. Those benefits continue to be true, and even more so as the number of people with Internet addresses expands. Some attorneys without Internet accounts ask: “Why in the world do I want to have yet another method of communication? I already have too many. Work phone, home phone, cell phone, fax, pager, voice mail—isn’t that enough?”
Of course, those attorneys need to ask themselves whether they also would like the ability to (1) write a message (rather than speak it) and send someone a document at the same time; and (2) have a roundtable discussion with colleagues in their area of practice without having to leave the office. E-mail can do these things, as increasing numbers of attorneys are figuring out. There will soon come a point where all attorneys will have an e-mail account. It is just too useful, and too important for attorneys to ignore.
On the research side, skeptical attorneys want to know if the Internet replaces LEXIS or Westlaw yet. It does not. However, there are now masses of information of a traditional legal research nature available on the Web: case law, statutory material, agency rulings, and more. It is safe to say that a case, statute, or agency ruling you referenced sometime in the last week can likely be found somewhere on the Internet. Is it all there? No. Is it well organized and easy to find? No.
However, all skeptical attorneys, when pressed, can come up with some form of data that is important to them and to which they do not currently have access that is easy, cheap, or current. SEC and IRS rulings, Secretary of State forms, and Supreme Court opinions are all on the Internet, and attorneys can have access to it all for a fixed fee of roughly $20 or $25 per month.
Beyond the question of whether the Internet is a good place to conduct traditional legal research lies the really exciting story of this revolution. After all, lawyers need to know the facts as well as the law, and the Web is a vast storehouse for factual information, much of it very timely. As a result, lawyers now have desktop access to types of information they never had before.
Here is an example: Suppose a client asks for an opinion on a novel legal theory about construction permitting. The attorney’s analysis of the traditional legal research material indicates that she will need to establish a safety concern on the construction site before the courts are likely to take the claim seriously.
Rather than going to LEXIS, the attorney would probably send a paralegal (or go herself) to the library and take a half-day to find some material on the subject (which is probably somewhat out of date). However, on the Internet—in an hour—she might find an assistant professor at Upper Wayola State who has written an article analyzing the exact construction safety data she was looking for, and the professor attached it (full text!) to her Web-based Curriculum Vitae. With a click of the print button, the attorney has a copy. This “nontraditional” legal research is the really exciting story of the Internet.
Barriers to Entry
With all these great benefits—e-mail connectivity, case and statutory law, and nontraditional legal research materials—why are all attorneys not online today? In this author’s experience, there are essentially three main barriers to entry: (1) complexity, or the learning curve, (2) lack of critical mass, and (3) the lack of a “killer app.”
First, there is a learning curve. Internet access sounds like something that should be as easy to use as a telephone, but it is not. Setup is not simple, although it is possible to have a consultant do it. Further, there is at least an hour of training necessary. That is not much, but it still is not on most attorneys’ list of things to do.
Second, many attorneys still are not at “critical mass”—the point at which so many of their clients and colleagues are online that they are starting to feel left out. There was a point where that happened with the fax machine, and there will be a similar point with e-mail and Internet access.
Third, there is a lack of an application on the Internet that makes the complexity and cost seem trivial to most lawyers because they need access to that capability. This is a common element in the growth of technology—so common that it has its own buzzword: the “killer app.” When the first IBM PC came out, there was little interest among the general population. When Lotus introduced the spreadsheet program “1-2-3,” suddenly normal people (that is, non-geeks) said: “I have to have that capability.” The cost to purchase the PC, and the training to use it, paled into significance. There still is not a killer app for the entire World Wide Web, much less for lawyers.
When there is, Internet access will jump to the top of every lawyer’s priority list almost overnight.
The Internet’s greatest strength—its size—is also one of its problems. The latest data indicate that the Web now numbers more than 75 million pages of information. These pages are located on several hundred thousand servers around the world, which are owned and operated by many thousands of different entities and individuals. Thus—to use a familiar comparison—this is not LEXIS, which is run by one entity in a very controlled environment. Rather, the Internet is an uncontrolled firehose of information.
How can lawyers harness this firehose in some sensible fashion to enhance their practices and their lives? There are numerous advertising-supported search engines on the Internet; some of the more famous are Yahoo!, AltaVista, and Lycos. These are essentially large servers that spend all day and night gathering information from the Internet and putting abstracts of what it finds in a huge database. A user looking for something goes to that database and poses a query to it, then looks through the various responses. Without these search engines, the Internet would be nearly useless as a research tool.
As it is, entering the term “bankruptcy law” will return more than 100,000 responses. The search engines are a start, but they are still too coarse, and it is debatable whether they will be able to get better over time. What the Internet needs is some kind of filtering mechanism, preferably customized by the particular user, that will separate the wheat from the chaff on a continuous basis.
Despite its limitations, the Internet is a tool that is vastly useful to millions of people. Furthermore, stories of how the Internet measurably has enhanced the lives of attorneys—and increased their ability to serve their clients efficiently—abound everywhere. Today, most lawyers know this, but have not yet been convinced to get over the cost, complexity, and training issues and to integrate yet another technology into their daily lives.
What the Internet needs to do to reach the masses in the short term is to solve a particular problem the individual attorney faces. Perhaps the day will come when a client asks to communicate with the attorney via e-mail, or the attorney wants to use the Internet to increase marketing presence, to “meet” online with other lawyers, or even just to exchange e-mail with his or her child in college. Whatever the desire, virtually every attorney has an information or communication “hot button” that the Internet can help address today.
1 Hyperlinks and endnotes have been removed from this online version. For the original text, access the article in Fastcase.
Perhaps the day will come when a client asks to communicate with the attorney via e-mail, or the attorney wants to use the Internet to increase marketing presence, to “meet” online with other lawyers, or even just to exchange e-mail with his or her child in college.