November 17, 1994 BEYOND PERSONAL PRODUCTIVITY SOFTWARE: A PROPOSAL FOR JOINT DEVELOPMENT OF SUBSTANTIVE POWER TOOLS DESIGNED FOR USE BY LAWYERS IN GROUPS David R. Johnson Wilmer, Cutler & Pickering 2445 M. Street, N.W. Washington, D.C. 20037 (202) 663-6722 August 22, 1990 BEYOND PERSONAL PRODUCTIVITY SOFTWARE: A PROPOSAL FOR JOINT DEVELOPMENT OF SUBSTANTIVE POWER TOOLS DESIGNED FOR USE BY LAWYERS IN GROUPS Introduction Personal computers have enhanced lawyer productivity in many ways. Lawyers can create documents more quickly and with higher quality by doing their own word processing. Lawyers now organize their thoughts and their practices by using outliners, electronic calenders, and on-screen notepads. Computerized document tracking has altered the nature (and pace) of litigation. And the use of spreadsheets to conduct "what if" analyses facilitates settlement analysis. Most Wilmer, Cutler & Pickering lawyers use these core software programs regularly and could no longer function effectively without them. But most such programs are content free and are used by individuals who move along the learning curve at their own pace. We must now consider how to achieve additional productivity gains from personal computers by means of building power tools that contain subject matter expertise and are developed for use by an entire legal enterprise, be it a firm, an in-house department, a government agency, or a network of counsel serving the same client or pursuing the same specialty. Ten Substantive Power Tools Designed for Enterprise-Wide Productivity 1. Applying Smart Search Engines To Precedent Files The expertise of law firms and in-house departments is partially reflected in memoranda, briefs, contracts and other documents. Increasingly, these materials are available in electronic form. But they need to be more readily accessible if lawyers are to make use of prior research and drafting efforts. For starters, the relevant materials must be collected and made searchable from any terminal. The key to building a group power tool may be the addition of a "smart search engine." Some smart search engines automatically expand a search beyond the key words the user enters, to look for related words. For example, a searcher asking for documents about "the accident" might locate documents that mention "the crash", even though these documents do not use the word "accident". Some smart search engines rank documents in order of likely relevance, thus saving the time that would otherwise be spent wading through less relevant materials. Some smart engines allow natural language inquiries, thereby reducing lawyer anxiety about proper search syntax. Some smart search engines allow the use of whole paragraphs as search terms, thereby facilitating a powerful form of "query by example." If you apply a smart search engine to a "precedent file" consisting of briefs, memorandum, and other work product, you have created an excellent channel for the sharing of legal expertise within any legal institution. 2. Using Free Form Databases to Track Collections of Substantive Materials Precedent databases capture only one dimension of knowledge. In addition to drafting formal documents, most lawyers also collect large amounts of materials that are of general interest to anyone working in that area. Every lawyer's office contains binders and folders (and other less formal storage devices, like piles on the floor) that contain copies of pertinent cases, speeches by government officials, news stories, law review articles, and so forth. Most lawyers would happily share this information with their colleagues -- if they could find it. Free form database tools can help each lawyer locate relevant material and can even be used to allow other lawyers to browse through the collections kept by their colleagues down the hall (or across the country). A free form database allows a lawyer or assistant to enter a description (usually including the title of the case or article) into a record that also includes a sequential number written on or attached to the relevant piece of paper. Cases, articles and other items of interest can be filed sequentially in order of receipt. Items can subsequently be found by searching the electronic database containing these descriptions. A short list of descriptive terms associated with any particular item is generally enough to cause it to be found. Search results tend to be over-inclusive, so searches turn up some "false hits." But these "false hits" are not a serious problem, because you can zoom right past them with the push of a button. With the use of such tools, most lawyers are able to search their piles of materials more quickly and thoroughly. If individual lawyers who maintain such databases keep them on a local area network, then they can refer queries posed by their colleagues directly to the database. 3. Conducting Strategic Research With Online Databases Most lawyers are familiar with the Lexis and Westlaw "online" collections of legal materials. But few tap them as often as appropriate. And fewer still use the great wealth of non-legal materials collected in Mead's "Nexis" service, much less the wide range of services provided by other online databases. These sources provide news articles, financial, biographical, product, industry, and research information. A relatively small investment in online search charges often yields critical information in a timely manner. Effective use of this power tool may require the expert assistance of trained researchers. And real power use can be obtained with the coordinated efforts of a group of lawyers sharing a subject matter expertise. We are awash in a sea of information. Most lawyers filter this data by waiting for phone calls, scanning selected trade magazines, and consulting with colleagues. These strategies work, but can be supplemented by deliberate searching and screening of electronic databases. A pro-active librarian can monitor new developments and distribute useful new information over a local area network. A group of lawyers practicing in a given legal area can jointly commission such searches and share their analysis of the results. 4. Creating Interactive Issue Outlines Precedent files and free form substantive databases collect large amounts of material relevant to research but do not directly suggest what questions to ask. Often, the most useful avenue into a new legal topic is an expert's outline. Outlines typically show the relationship of each topic to other topics, with more detailed information hidden away under subtopics. Often, reviewing an outline is the best way to begin analyzing a legal question. Unfortunately, the time it takes to find a colleague's outline, or to find a published outline in the library, combined with the time then required to flip through the pages, means that outlines are an under-utilized way of sharing expertise. Electronic outlines reduce information costs. Using hypertext software (see sidebar), we have built a number of structured tools that communicate experts' views of specific legal topics. Whether used by the author or by other lawyers first learning the area, hypertext outlines quickly communicate ideas pertinent to a particular practice. Electronic versions are easier to use and to search (and, unlike binders and books, computers are easy to find) and therefore can save time. Many existing outlines can be converted to hypertext at a reasonable cost. 5. Using "Hunt and Graze" Drafting Tools Lawyers drafting contracts and other stylized documents look for model language from prior documents. In our experience, drafting tools designed to take the drafting task away from the lawyer, by using "expert systems," are expensive to build and are practical only if nearly identical documents are drafted repeatedly. We are exploring a somewhat less automated, but much less costly, approach that we call "hunt and graze" document assembly. Rather than rely on complex "if-then" rules, this approach merely collects relevant clauses in easy to navigate hierarchies and relies upon the lawyer's expertise to select appropriate ones. Lawyers can access a wide range of alternative clauses that can be inserted into a current draft or customized to fit the current situation. Hypertext software is an effective means of implementing such systems (see sidebar). In a hunt and graze drafting system, the names of constituent paragraphs of a completed document can be kept in a master list. Each listed paragraph type has links to one or more pages of model language. (Additional hypertext links can be provided to explain the ramifications of selecting alternative formulations.) A group of lawyers can add new paragraphs at any time -- thereby making their experience available to others. The most appropriate model for each paragraph can be easily selected for inclusion in a draft. Once all model language is selected, the lawyer can do final editing in any word processor. (This approach, as distinct from that of a more automated system, helps to ensure that the lawyer reads and carefully considers the final product). 6. Creating Checklists for the Practice of Preventive Law If a client faces similar legal problems regularly, it may be useful to create a power tool addressed directly to solving that particular client's problems. For example, we have developed tools designed to help analyze one type of contract that one of our clients enters into on a regular basis. The lawyer most familiar with the relevant legal issues and the clients' circumstances created an electronic checklist. Now, when a new draft contract comes in for review, another lawyer not as familiar with this topic can use the checklist as a way of making sure that all issues have been reviewed in adequate detail. A similar approach involves development of a series of checklists designed to track a client's protection of its intellectual property assets, or its exposure to claims in litigation, and so forth. The effect of using such preventive law checklists is that final legal analysis can be finished in much less time, with greater assurance that it is complete, and based on the expertise of a whole group of lawyers. 7. Using a "Smoking Gun Generator" One task litigators often face is determining which documents are most important to their case. Faced with cartons of files, where is a litigator to begin? Often, unfortunately, the current answer is to send all the boxes off for coding by legal assistants who do not understand the case. This imposes substantial costs and long delays before the lawyer charged with formulating case strategy can start reviewing and digesting key raw materials. Advances in optical character recognition technology, and the application of smart search engines (see the discussion of Precedent Databases above), make it possible for groups of lawyers and legal assistants to become much more productive and efficient when reviewing documents. Scanners and "optical character recognition" software can "read" the full text of a document and translate it into electronic characters. A smart search engine can then find and rank the "hits" in the database in the order in which they most closely resemble search terms. An intriguing application of this currently available technology involves what we call our "smoking gun generator." This uses a smart search engine that allows the search term to be an entire paragraph written in standard English. By writing the document he or she would most like to find in the box of documents available in electronic form, and by letting the search engine rank the documents in the database in the order in which they most closely resemble this idealized "smoking gun," the lawyer can quickly locate materials bearing on critical aspects of the case. As a side benefit, lawyers using the system report that formulating their "wish list" is a useful analytical exercise and just plain fun to boot. 8. Analyzing Settlement Options With Decision-Tree Tools Once a lawyer has determined which factual materials are available in a particular case, and reviewed available legal theories with the aid of issue-spotting tools, he or she must determine the appropriate strategy, including the pursuit of settlement opportunities. A technique known as "decision-tree analysis" is widely used in our firm to evaluate the likely outcome of litigation -- and to make rational trade-offs among alternative litigation strategies and settlement offers. One power tool that enhances this process is a preformulated, interactive, decision-tree tool. For particular types of cases, alternative outcomes can be recorded as a graphical tree structure. Numerical calculations based on subjective probabilities and lawyers estimates of likely verdicts can be displayed on this tree structure. A lawyer using such a preformulated decision-tree tool can quickly perform "what if" analysis to see the impact an altered likelihood of winning on particular issues might have on the "expected value" of the case. Settlement offers can be evaluated rationally in light of expected outcomes. Because the decision tree forces the lawyer to spell out underlying assumptions, it is also a useful means of identifying where disagreements within a litigation team really lie. These tools are most powerful when used by groups of lawyers and other experts because they help the group to reach consensus on critical assumptions and key strategies. 9. Creating Graphic Displays of Information Advanced graphics software allows lawyers to present information compellingly. Any time numbers are important in a case (or management issue), graphs should be used to present the information. Moreover, complex text, such as a statute, can be presented creatively in flow chart form. More advanced graphics and desktop publishing programs can help lawyers develop a variety of displays, including wall size charts, for use in negotiations, trial, or internal management. Interactive video is also becoming a real option for high stakes trials. Because most lawyers were not trained as graphic artists, using the display tools effectively may require the assistance of expert staff. But we have found that the design process is best conducted in an iterative fashion, with a group of lawyers and legal assistants involved in the case generating suggestions and reacting to prototypes. 10. Using Electronic Mail and Bulletin Boards For Client Communications Many law offices have installed local area networks that provide lawyers with electronic mail. Everyone using electronic mail ("e-mail") knows that it saves much of the time previously spent playing "phone tag." Many also realize that e-mail facilitates document exchange and collaborative drafting. Few have focused, however, on the important productivity gains achievable by providing an electronic link between the lawyer and the client. E-mail and limited access bulletin boards can bring clients and lawyers doser and allows more lawyers quickly to collaborate to solve a client's problem. Some lawyer-client dealings involve straightforward questions and answers that can rapidly be typed. If the question can be asked quickly, whenever the client has time, regardless whether the lawyer is currently available, then the client benefits from getting the question onto the lawyer's desk and off his mind. If the lawyer's answer can, similarly, be typed when the lawyer has a chance, and sent to the client regardless whether he or she is available at the moment, a similar gain in productivity results. The speed and value of the lawyer's response can itself be enhanced by using e- mail to solicit information or advice from others in the office. And bulletin boards can be used to create continuous conference sessions for the regular exchange of views on various subjects. To be sure, e-mail does not fully substitute for in- person contact. Many questions require a lawyer to inquire further -- and to hear the kind of nuance available only in personal meetings, or at least over the phone. But, in our experience, creating an additional channel of communication strengthens the bond between lawyer and client. Prospects for Development and Application of Power Tools Lawyers who pioneered the application of personal computers to law practice did so to enhance their own effectiveness. They could take inexpensive actions, on their own, confident that the pay-off of enhanced productivity justified the investment in hardware, software, and their time. In contrast, developing and applying the power tools described above requires enterprise-wide cooperation and much greater levels of investment. For example, a precedent file requires input from all lawyers in an organization. Drafting tools are most effective when they contain model clauses from many lawyers' documents. And it takes two to e-mail. Some of the tools are costly enough that only a group of lawyers sharing the gains could justify the necessary investment. Furthermore, maintaining and using these power tools requires additional expert staff. Because individual pioneers cannot build these new substantive power tools, and because they require substantial resources to maintain, institutions, not individuals, must make the decision to develop and use them. Given the risk aversion (and cost aversion) of most lawyers and legal institutions, one might therefore be pessimistic about prospects for further progress. But we believe that, over time, the investment necessary to build these new tools will be made. The legal profession is under continuing pressure to reduce costs and to become more effective. Corporations are pressing their law departments for savings and law departments are pressing their outside counsel in turn. We believe that the power tools described above are one way of reducing costs and increasing efficiency and effectiveness. Inside counsel, who pay the bills, will demand that they be used, once this is fully understood. The pace of change could quicken even further, however, if legal institutions took a more active and cooperative stance. One way to achieve earlier adoption of the new power tools is for technologically advanced firms and in-house departments to work together to exchange their insights into how to apply computers to enhance productivity. Once institutions act together to analyze what makes lawyers productive -- and what might make them more so -- we could see a "tipping phenomenon" that gives momentum to change. We might even make practicing law with a computer truly respectable at last. Why should institutions that have invested in developing new technology share their insights and seek to pool that expertise? One reason, of course, is simply that we remain a learned profession and that lawyers have a professional obligation to advance the state of the art. Altruism aside, however, each institution attempting to push the "edge of the envelope" must know that it can learn still more from others. The unexplored territory is too vast to be conquered by any one firm or legal department. Moreover, lawyers at different firms who practice in the same area need to collaborate with each other to become better lawyers. We may all be becoming more competitive these days, but any firm would disserve its own clients' interests -- which cannot be a good competitive strategy -- if it did not engage in continuing discussions with other experts. If we are to use the new powerful computer tools to facilitate and enhance those discussions, then otherwise competing institutions must cooperate in building the necessary technical infrastructure. What we need is a working group of law firms and in- house departments that are interested in pursuing productivity enhancements through technology as applied to the substantive practice of law -- by sharing on a regular basis their insights regarding what works and what might be worth trying. Unlike existing "user groups," such a group would involve only institutions committed to investing in the development of new technology. Joining the group should cost money and entail an obligation on the part of general counsels and managing partners, or their deputies, to attend regular meetings. The group's sessions should not be for "techies" but should instead focus on sharing lessons learned from efforts to develop and apply substantive tools. The group should emphasize questions relating to the way information flows through a law firm or law department, and what kinds of tools facilitate the productive interactions among groups of lawyers, rather than serving as a showcase for the most recent standalone application. The involvement of multiple institutions in such a group would also provide greater momentum to pioneering efforts that now must proceed in the relatively thinner soil found within any given firm. And a collaborative effort involving both inside counsel and outside firms would provide invaluable insights -- not now readily available from any source -- regarding how the technology can affect the way legal services are requested and delivered across institutions. Let me know if your firm or legal department would be interested in joining such a group. I hope you will agree that such a group would provide a useful way to join together, as a profession, to invest in building new power tools -- of the type described above and others soon to be invented -- to make all of us better lawyers.