What does it mean to “think” like a lawyer? How do lawyers arrive at answers to legal questions? What impact does technology have on this process?
These are all valid questions and, thanks to a tip from the Legal Writing Prof blog, I followed a link to this article in the October/November, 2008 issue of the Virginia Bar Association News Journal by Ross C. Reeves, a member of the firm of Wilcox & Savage in Norfolk, Virginia. His article, titled Marshall McLuhan In The Modern Law Office: Has Technology Changed The Way We Think?, addresses these topics by comparing the impact of our newfangled tech to Marshall McLuhan’s take, more than fifty years ago, on the impact of the television. McLuhan and, in turn, Reeves caution that the mere presence of the technology fundamentally changes our thinking, processing, interaction and problem-solving.
I do not dispute Mr. Reeves’ insistence that the manner in which documents are prepared, research conducted, and information stored and retrieved might change how we get the job done. However, I do not necessarily reach the same conclusion that new methods necessarily change how we “think” as lawyers.
I am only going to address Mr. Reeves’ comments regarding the effect of word processing and computerized research on the legal thought process. For the tasks of research and writing, I believe it of utmost importance to arrive at a proper definition of the term “think” as it applies to lawyers. For me, legal thinking, the tool of our trade, involves the ability to understand a problem, break the problem down into its component parts, internally sift through those parts to find those that are most relevant to the solution, confirm or refute the validity of the solution through external research and then organize the parts, research and solution into a persuasive package. While Mr. Reeves addresses in his article the external research part and the packaging part, he seems to gloss over the primary step of breaking down the problem and the key process of coming to a solution. Whether we choose to use a word processor or a typewriter or a dictaphone or a pencil, we attorneys must engage in the described process to arrive at a product satisfactory to the client. Thus, I challenge whether the real effect of technology is to change the way we “think” or to change how we solve each step in the process of “thinking.”
I do not take issue with the idea that the existence of the computer screen in front of me affects how I interact with the information forming the building blocks of my solution. In other words, I agree that I interact differently with the bound volume than I do with the on-line version. I do not agree that my approach to finding and analyzing legal authority has changed simply because I can now find that authority on-line. Reeves describes the old method as beginning with a determination of where to look for legal authority – statute, constitution or body of common law. The next step was to self-educate by turning to treatises and annotations that had been written by scholars and organized by law librarians, serving as benevolent “gatekeepers” in selecting lines of authority. This lead to the researcher’s creation of “idea channels”, another name for the path open to the researcher carved out by the law librarians and treatise authors.
Reeves’ concern is that, while we grasp the output generated by our technologies, we are oblivious to their macro effect on how law practice is performed. As an example, he describes how more than 30 years ago, the costs associated with re-writes and drafts on typewriters and at printers exceeded the costs of attorney-time devoted to “getting it right” at the outset. With cost being paramount, attorneys worked harder at “getting it right” the first time. Now, the ease of manipulating both the research results and the written word has flipped the economics –attorney-time costs more than the processing, so there is less incentive to heavily organize thoughts and words from the start.
This is all true. But does this really change how lawyers “think”?
In this digital age, I still must determine my best source of authority as a first step in solving any legal problem. I still consult treatises, such as Couch on Insurance, the ALR and many, many others, particularly in areas that I am less familiar with. I often employ the Table of Contents function in Westlaw in order to see where a treatise entry or statutory section fits within the overall topic or scheme. These treatises are still written by legal scholars. I still look at headnotes and key numbers, and I even use the Words & Phrases function in Westlaw (remember those old dusty volumes?). Then, after scoping out the landscape, I turn to the case law available in those treatises, supplemented by both a Boolean and natural language search in the relevant databases. I follow links to other authorities cited in the documents themselves and the suggestions in the sidebar, this latter resource similar to the suggestions a benevolent law librarian might offer. If a law student, newly minted lawyer or even a seasoned attorney chooses instead to go for the “quick fix”, they run the same risk the old-school lawyer ran when he or she did not undertake a thorough and principled approach to solving the problem with the books at hand – the risks of missing legal authority instrumental to solving the legal problem or misunderstanding the authority located.
Then I must condense the key information into an understandable and persuasive package. Neither the word processor nor the typewriter will save me from poor grammar, sentence structure, word choice and organization, although the word processor may help me avoid a spelling mistake or obvious grammatical error. The word processor does offer an ability to manipulate segments of text unavailable on an old Selectric. But I still must exercise control over the written product to massage my words into the best possible product, regardless of what tool I am employing.
So, does the technology change how I “think”? While I think not, it comes down to Mr. Reeves’ or my or anyone’s definition of “think” as in, “think like a lawyer.” Technology provides me with more time and more options for faster recovery and packaging of information than afforded me on those trips to the dusty library in days of old. It also offers me less exercise and fresh air. But methinks my “thinks” are still intact. For now.