More Technology, More Expensive

In Formation Magazine, page 69, Summer 1998
by Anonymous

As an attorney who was first admitted to practice in 1995 and who works in one of New York City's largest, most high-tech firms, I've only known the practice of law as aided by the wonders of technology. Faxes can be sent and received from my desktop. The typing pool is long gone. Revisions to my briefs and memoranda are quickly produced on the word processor. Voicemail and e-mail streamline communication. Legal research that would have taken my predecessors days - or would have been impossible altogether - takes me, through the aid of the computerized Westlaw and Lexis databases, just hours or minutes.

Of course, technology hasn't made better lawyers. And, significantly, it has not saved lawyers from complicating their own lives.

Here's an example: For decades, a lawyer with a case on appeal would use a professional printer to prepare an appellate brief. The lawyer would write the document, but the final printing and binding would be left to a professional. That changed several years ago with cheap desktop publishing.

Lawyers no longer needed to finish the document a day or two in advance. The lawyer, not the printer, could personally supervise the design and typeface of the document. Margins could be moved to make a wordy brief fit page requirements. The printer's standard type could be disregarded to allow for more creative fonts. And rather than simply use italics or underlining to emphasize a word, lawyers could use bold, or bolded italics, or bolded underlined italics, or, for the truly expressive, shadow text.

Such freedom ultimately led to "profoundly ugly documents," in the words of one judge. His Court - the federal Seventh Circuit Court of Appeals in Chicago - thought it had the perfect answer. Since lawyers love rules, the Court wrote one to govern the printing of briefs. The court restricted the use of boldface type and capitalized words and limited the use of italicized or underlined text.

For several years, the Court's clerks became enforcers: briefs that failed to comply were returned to their authors for reprinting. But it didn't last. Last September, the Court gave in and repealed its own rule.

Here's another example: Last summer, in In re Berg - a case involving a patent claim for an abrasive material used on sandpaper - the federal court that hears appeals of patent cases, accepted the first-ever interactive CD-ROM brief. Before this case, appellate briefs were simply documents that outlined the facts of the case, summarized the relevant law and then applied those facts to the law to demonstrate why the client's side was right. To reference facts, the lawyer would quote from a trial or deposition transcript or reproduce an excerpt of a document.

But the briefs in In re Berg went much further: they hyperlinked to those sources. By clicking on a quoted passage, the judge could read the transcript itself. By clicking on a case, the judge could read the earlier court's opinion.

The attorneys filing the In re Berg briefs claimed the CD-ROM afforded greater convenience and ease of use, but the real reason, according to attorney Charles L. Gholz, was much more gee-whiz: "Most of my partners have looked at my brief and said, Oh Gee, this is neat,'" he told the Chicago Daily Law Bulletin. The next one, he said, would be even fancier.

No one in the legal press asked the obvious question: Why bother imposing this technology on a process that doesn't need it? What does it add to our justice system?

For the rich, like the clients of firms like mine, the cost will be relatively minor. For all others - who will choose between investing in their own CD-ROM or placing their paper brief against the high-tech one of their opponent - it will be one more inequity of the legal system.

In the end, no additional information will have been presented to the court, no new legal arguments created. Justice will not be advanced. It will simply become more expensive, more confusing, and less accessible to the poor.