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You are here: BAILII >> Databases >> United Kingdom Journals >> Lawyering on the Internet URL: http://www.bailii.org/uk/other/journals/WebJCLI/1995/issue1/widdis1.html Cite as: Lawyering on the Internet |
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Copyright © 1995 Robin Widdison. First published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
This article seeks to do three things. Firstly, it attempts to show why the Internet is not just a passing fad but also a major step forward in information technology that will have enduring significance both in the workplace and the place of study. Secondly, it seeks to explain the Internet by reference to what it enables users to do rather than in terms of its underlying technologies. Finally, the article examines how the development of the Internet is likely to impact on legal practice and on legal education.
This article seeks to do three things. Firstly, it attempts to show why the Internet is not just a passing fad but also a major step forward in information technology that will have enduring significance both in the workplace and the place of study. Secondly, it seeks to explain the Internet by reference to what it enables users to do rather than in terms of its underlying technologies. Finally, the article examines how the development of the Internet is likely to impact on legal practice and on legal education.
What is the Internet? It aspires to be the entire universe of computer networks. For many years, individual computers tended to exist in isolation from other computers - as 'stand alone' machines. Then, began the process whereby these isolated computers were physically connected together by wires and wireless means into networks. Such networks might take the form of Local Area Networks or LANs (British Computer Society 1991 para 2:21.2) located on a single site such as an office building or university campus. Alternatively, networks might take the form of Wide Area Networks or WANs (British Computer Society 1991 para 2:21.6) with the constituent computers widely dispersed around a region, country or, indeed, a whole continent.
During the last 25 years - rather longer than is often realised - technology has been evolved to provide a fail-safe means of linking all these different LANs and WANs together in one giant 'network of networks' (Suarez 1994, section 3). At some point in the first half of the 1990's a critical mass of interconnection was achieved and the concept of the Internet entered the collective psyche. This occurrence has itself now triggered a dramatic acceleration in the rate at which new networks and individual users are joining and participating in the Internet.
Where does all this interconnection lead? Basically it means that there is now a line of communication from one computer to any other of the estimated forty million computers on the Internet wherever in the world the source and the target computers are physically located (Kehoe 1995). It means that two separate areas of technology - computing and telecommunications - which have been converging for some years, have touched and are now starting to overlap. It means that the development of the Internet is, indeed, a matter of the most profound significance. This view is, perhaps, amply demonstrated by the fact that the 'G7' industrialised countries felt the need to hold a ministerial summit at Brussels in early 1995 specifically to address the political, social and economic implications of the Internet (May 1995).
Essentially, we are arriving at a situation where information that can be perceived by any of the five senses can be digitised. Once digitised, the information can readily be broadcast across the Internet. Furthermore, several or all of these types of information can be combined into a multimedia document which can be transmitted just as easily as a file comprising a single type of information. At least one other important category of information can be added to the list of transmittable information - computer software. Software typically exists at two levels - as human-readable plain text, known as 'source code' (British Computer Society 1991 para 11:64), and in machine-readable binary form, known as 'machine code' (British Computer Society 1991 para 8:3.2). In either of these forms, software can be transmitted across the Internet.
Email can be set up to provide instantaneous, 'real-time' communication, known as 'Internet Relay Chat' or 'IRC'. Equally, it can be sent out of hours or whilst the recipient is away and then stored in an electronic mailbox until accessed by that recipient. Email can take the form of no more than a textual message or can be used as a vehicle to which to 'attach' or enclose files containing processible documents, diagrams, graphics, photographs, sounds, video and software. The email message itself is capable of being conveyed as sound instead of text and, in this situation, is known as 'voice mail'. Voice mail itself can be combined with moving images of the correspondents to produce video communications.
How does email manifest itself? At the simplest level, it takes the form of one-to- one communication. One individual sends a message to another, who may then reply. At the second level, email may be distributed on a one-to-many basis. It is possible manually to address an identical or very similar message to a number of recipients at the same time. The third, more sophisticated level is that of pre- prepared one-to-many mailing lists (Suarez 1994, section 7). Here a number (possibly a large number) of subscribers who may be widely dispersed geographically are gathered into a group and the group is given its own email address. Mail sent by any individual member of the group addressed to the mailing list then passes though a 'mail exploder' which automatically addresses and sends the same message to every other individual member of the mailing list. Interchanges that take place amongst members of such mailing lists often develop into impromptu discussions. An interesting question or observation by one member of the group may cause a number of other members to respond and to raise fresh issues. This first wave of group interest can lead to a second wave and so on - the whole process sometimes 'snowballing' into a full- scale, ad hoc conference.
At the fourth level of sophistication, Internet-based discussions are increasingly run on a pre- planned basis as formal electronic conferences. A special mailing list may be set up and 'delegates' invited to sign up and participate in the conference. A conference agenda together with papers and other initial material may then be circulated before the conference starts. Then, over a period of days or weeks, delegates are encouraged to read the contributions of other members of the conferencing group and make their own contributions to the discussion without ever leaving their normal workplace. Such electronic conferences can be enhanced by the selection of a designated chairperson or facilitator who is responsible for initiating various stages of the conference, summarising discussion at the end of each stage and at the end of the entire conference and steering delegates back towards the agenda if they stray. Further enhancement can be achieved by the use of dedicated conferencing software that can support several 'threads' of discussion running simultaneously without the whole conference descending into irresolvable confusion. Finally, combining the ability to transmit sound and video, it is possible to shape the technology to provide video conferencing. Here, typically, a delegate participates in a conference in real time, viewing other speakers in action from the computer monitor on his/her own desk (or lap). When the delegate in question makes a contribution, a video camera on his/her computer relays voice, moving image of that delegate and any other relevant information to all the other delegates.
At the simplest level, electronic publishing can amount to no more than providing Internet users with access to existing 'in-house' databases of processible documents, diagrams, graphics, photographs, sounds, videos, software etc. The next level up from there involves developing new databases specifically for access by those exploring the Internet. To facilitate navigation by such outsiders, catalogues, menus, indexes and instructions with attendant help text are often placed at the entry points to these databases. These tailor-made 'front ends' have further evolved into 'home pages' containing information about the host institution, its staff, location, activities, publications and any commercial or non-commercial services that it offers.
A striking feature of the Internet is that every goal has the potential to be a gateway to somewhere else. For this reason, one often finds that these home pages are like cross-roads, containing not only sources of information but also access points to other parts of the Internet thought likely by the authors of the home pages in question to be of interest and use to Internet users.
Moving up the scale towards more organised forms of electronic publishing we arrive at electronic periodicals such as newspapers, magazines and journals (The Web journal is, of course, the first electronic law journal based in Britain). How do electronic periodicals compare with their paper-based equivalents?
Another blend of electronic publishing and communications produces the potential for lively, participatory 'readers letters' pages in electronic periodicals. Such pages may be set up to permit the development of ongoing discussion around, and evolving from, an article or note in a periodical. The next step, of course, is to provide formal electronic conferencing facilities to readers. Periodicals then merge into conferences and conferences into periodicals creating exciting new possibilities for the development of learned discourse.
Again, a combination of Internet technologies can produce the electronic shopping centre (or 'electronic shopping mall' as it is known in America). Electronic 'home pages' have evolved from being front-ends to accessible databases and now can, and increasingly do, take the form of on-line catalogues of goods and services for sale. Electronic periodicals can contain advertisements. Either forms of publishing can contain email links which provide the means whereby would be purchasers can place orders directly through the home pages or advertisements. Payment for those goods or services over the Internet by means of electronic funds transfer or EFT technology is also possible. EFT describes the process whereby computer systems are used to transfer credits and debits between banks, companies, shops and individuals (British Computer Society 1991, para 1.1.11). The use of EFT over the Internet has, however, been held up somewhat by the pressing need to find sufficiently secure ways of transmitting electronic funds. Delivery of goods (as defined in Sale of Goods Act 1979 s 61(1)) over the Net is, of course, impossible. Teleportation is one technology, at least, that remains firmly in the realm of science fiction! On the other hand, many services involve the provision of digitisable information in one form or another and so electronic delivery is entirely possible in these cases.
There is no grand, overarching structure to the Internet, no all-embracing hierarchy, no central establishment to enact standards or to provide Net search facilities. Because the Net is neither owned nor operated by any single organisation, it gives the appearance of being anarchic (Millard & Carolina 1995). For this reason, it is critically important to acquire a knowledge of a variety of search tools before one attempts to navigate the Internet in earnest. In this article, we shall focus on three classes of tools, all designed to lead to efficient and effective searching, sifting, sorting and selecting of information. These classes are directories, structuring tools and search engines.
The exciting and increasingly popular 'World Wide Web', known simply as the 'Web', creates a structure whereby documents and other materials are connected together by means of 'hyperlinks'. Let us examine an example based on information in the form of documents made up of sets of pages of text. Hyperlinks provide direct access from a source page to any target page that is referred to and linked to that source page. The target page may be in the same document, a different document at the same site, or a different document in an entirely different part of the Internet. In essence, hyperlinks are like footnotes except that they do not just take the user to a reference to another document. They the user to that actual document itself. The power of hyperlinking lies in the ability to move not only horizontally - forwards and backwards - through documents in the traditional way but also to move vertically to 'footnoted' documents. This, quite literally, adds a new dimension to document based research.
Case work does not just involve communicating with 'in-house' colleagues, of course. Instructions can be sought from clients and progress reports can provided to them periodically or on demand. Instructions to counsel can be transmitted via the Internet and resulting opinions, draft documents and draft pleadings be returned to the firm in word processible form for completion. Electronic conferences can be set up between clients, solicitors and counsel on an ad hoc or a pre-arranged basis and can continue over a period of days or even weeks if the need is there. Already, in fact, the implications of full-blown video conferencing on costs and the speed of working have been grasped by many in the legal professions and facilities appear to be in increasing demand (Christian 1993). As well as keeping in touch with client and counsel, a fee earner will undoubtedly be concerned to communicate electronically with solicitors acting for other parties to a transaction or a dispute. Again, this class of communications can benefit from the use of email and electronic conferencing links.
One last thought on the relevance of electronic communications to case work. If one involves all the parties, their solicitors, counsel and witnesses in a pre- arranged on-line conference, it is only necessary to add the judge or arbitrator in order to have a full-scale electronic or video trial. If computers are moving into courtrooms (Plotnikoff & Woolfson 1993), how long will it be before courtrooms move into computers?
What of the contribution of electronic publishing to case work? Clients and counsel will undoubtedly benefit if case files - documents and other materials relevant to their cases - are made available to them on-line by law firms. Direct access to court lists produced by the listing offices has an obvious benefit to counsel and instructing solicitors. Equally, legal practitioners will be greatly assisted by the facility to search on-line databases of information held by such institutions as HM Land Registry, Companies House, the Trade Marks Registry, local authorities etc. Access to commercial company searching and credit rating searching services, such as those offered by Dun and Bradstreet, can now be obtained via a new 'value added' legal network service called 'Link' (Legal Information Network 1994).
The power of having an email link to a large number of other practitioners and law academics on a one-to-one basis should not be underestimated (Millard & Carolina 1995). One must add to this the value in research terms of participating in some of the growing numbers of topic-specific mailing lists or in electronic conferencing (Louis-Jacques 1994). Any of these technologies might well provide the means to obtain an answer to a problem or at least some important leads. The new 'Link' service provides one possible medium for research interchange whether in the form of one-to-one enquiry, informal discussion or outright conferencing (Predavec 1994a), (Predavec 1994b).
Alternatively, research may involve hunting for an answer from within the vast quantity of electronically published information on the Internet. It is possible to access a substantial number of law library catalogues across the Net. The 'National Information Services and Systems' information service (NISS) provides access to 85 British academic library catalogues from Aberdeen to York. Increasingly, electronic libraries comprising full text documents are themselves accessible across the Internet. On-line access to electronic publishing services such as 'Lexis' and Context System's 'Justis' databases have been available for a number of years. Now, however, the number and variety of such published sources in rapidly increasing. More and more international and domestic sources of primary materials (treaties, conventions, constitutions, legislation, secondary legislation, case reports etc) and secondary materials (publications by various governments and international bodies, commentaries, journal articles, research papers, newsletters etc.) can be tracked down and examined. The problem is now how to filter these materials to find what is useful.
There are a few examples of directories and lists that are of particular relevance to legal practitioners, although there are not yet enough authoritative and reliable resources available for lawyers. Some institutions are using their home pages in such a way as to try to fill the gap. This has been achieved by bringing together access to relevant directories and other sources of home pages and materials into grand directories of directories. One of the most comprehensive and important examples of this type of development is the World Wide Web Virtual Law Library (Indiana University 1995) discussed in (Cameron 1995). Other examples of note include Cornell Law School's home pages (Cornell Law School 1995a) and, in Britain, those of Strathclyde Law School (Strathclyde Law School 1995).
Another important administrative task is that of accounting. It seems likely that soon some law offices will develop EFT links with their major clients. Periodic billing can be generated automatically by a law firm's accounts system and then communicated electronically to the client. The client will then be able to authorise the appropriate credit transfer to be made by its bank to the law firm.
Finally, law firms and barristers' chambers need constant supplies of books and periodicals, stationery and other supplies. Suppliers such as Hammicks bookshop now offer hybrid systems which take the form of on-line catalogues coupled with an email link enabling customers to order items via the Internet (Legal Information Network 1994).
Rather more formally, some experiments have been carried out which involve using electronic conferencing techniques and/or software to conduct electronic tutorials and seminars in place of their face- to-face equivalents (Hardy 1994), (Widdison & Pritchard 1995). There are a number of advantages to using the technology in this way. These include:
Let us turn, now, to electronic publishing (O'Donnell 1994). Twenty-four hour access to primary and secondary sources based on campus can be offered in order to help alleviate the pressures caused by large numbers of students squeezing into law libraries designed for smaller numbers and all attempting to get hold of the same required or recommended reading at the same time. Access across the Internet to a wider variety of 'electronic law libraries' and other relevant databases will greatly enrich the sources of material available to students. However, emphasis must be placed upon the development of skills in searching, sifting, sorting and selecting electronically published materials. Acquisition of these skills will, however, be of enormous benefit to students not just in relation to their studies, but also in their future careers.
As for the benefits of electronic publishing to academic research, again, all that has already been said in general and with regard to research by legal practitioners is applicable here. However, there is also a desperate need for high-quality directories and other search tools to help law academics and research students to navigate around the Internet.
Another important administrative task for law schools relates to 'input' - student admissions. Anyone who has had the soul-destroying task of wading through thousands of application forms trying to identify the very able from amongst the able - the highly suitable from amongst the suitable - will relish the notion that the whole process and all the paperwork could be dematerialised. Such a development would provide benefits both in terms of sorting and selecting of applications and also, perhaps, in terms of the possibility of creating direct links between the law schools, the would-be students and their referees.
At the 'output' stage, most law academics have noticed that there is an increasing demand from potential employers for references. These references are now routinely sought not just in respect of would- be trainees but also in respect of any students who apply for vacation placements. The facility to receive requests for references and to respond to them directly via email would be a considerable boon to both sides.
Finally, law schools, like law offices, need constant supplies of books and periodicals, stationery and other supplies. It is to be hoped that Hammicks bookshop and other suppliers will soon make their on- line catalogues and ordering systems available to the academic community.
Why do these things fail to happen as predicted? Often, there are cultural reasons. There are still generations of individuals who have grown up communicating and researching by means of the medium of paper. These generations are also imbued with the notion that shopping, banking, studying and working are activities undertaken, for the most part, by travelling to fixed physical locations. Such people are disinclined to develop enthusiasm for the jump into 'cyberspace' (a term coined by William Gibson in his novel 'Neuromancer'. The term refers to an electronic world existing in parallel to the physical world). At this moment, however, a new generation is growing up for whom the screen is as natural a medium as the page. This and later generations may well be as comfortable in the electronic world as they will be in the physical world.
It has to be said, though, that predictive failures are not caused by cultural factors alone. For a long time, the technologies that are essential to the development of the Internet - one of the key components of cyberspace - were slow, unreliable and insecure. In some respects, they still are (Millard & Carolina 1995). For this reason, the Net remained the preserve of a minority of dedicated hobbyists for many years. Now we are seeing all this change before our eyes. Indeed, the rate of both technological and cultural change is increasing so fast that there is some risk of it creating a blur in our minds. At this point, it then becomes essential for us to refocus our understanding to ensure not only that we keep control of our technology but also that we can exploit its potential for the utmost benefit.
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