The 2013 AALS Annual Meeting featured a panel discussion on Understanding Search Engine Algorithms: Can We Effectively Teach Research Without Them? From what I gathered from the tweets, the panel—which featured, among others, Ian Koenig (Chief Architect for Lexisnexis) and Ed Walters (CEO of Fastcase)—gave a peak into their "black box" search functionality, something that has been a subject of vigorous debate among researchers since WestlawNext + WestSearch was introduced three years ago. I think Sarah Glassmeyer (Director of Content Development for CALI.org) summarized many researchers' feelings best when she tweeted:

Google (and google type search interfaces) infantilize people and take away user power to control search results.

This notion of controlling search results is interesting because it presupposes the answer to any query will either be yes or no. But as lawyers we know that answers to a law-related query are rarely binary, which is why we continue to run controlled search after controlled search until our gut tells us, "I think we got it" (or we know the client won't pay for any more research time). In his forthcoming paper on quantitative legal prediction, Dan Katz states the problem nicely:

[W]hen individuals engage in legal reasoning they engage in a high level, high dimensional search of the space of possible reference cases. In that search, similarity and dissimilarity are the drivers. Heuristics are used to define the stopping conditions. The science of legal search (legal information retrevial) is driven in substantial part by a notion of similarity. Humans do not (cannot) exhaust the space and this is just one reason why humans + machines > humans or machines. Legal search intermediary companies such as Google, Lexis, Westlaw, etc. aid lawyers by allowing them to make better sense of the sea of potentially relevant legal information. The problem with today’s legal search is that the body of results is typically substantial and thus the human (lawyer) must still engage in substantial filtering of the results. Much of the weight is put to the human reasoner to determine which cases are potentially useful or harmful to their particular position.

Katz, Quantitative Legal Prediction – or – How I learned to Stop Worrying and Start Preparing for the Data Driven Future of the Legal Services Industry, 63 Emory L. J. ___ (2013 Forthcoming) (emphasis added).

As lawyers, our arguments depend on similarity, usually to a seminal or starter case. But as Katz states, obtaining these similar (and hopefully "on all fours") cases is "actually fairly difficult because most cases share some level of similarity with other cases."

It's a similarity problem that WestSearch was attempting to solve, as suggested by the numerous posts written about it and most recently by U.S. Patent No. 8,321,425 (Nov. 27, 2012), titled Information-Retrieval Systems, Methods, and Software with Concept-Based Searching and Ranking.

One problem identified by the present inventors concerns operation of typical search engines, which require queries and documents to contain matching words. This is problematic for at least three reasons. First, search results may include documents that contain the query term but are irrelevant because the user intended a different sense (or meaning) of that query term that term matching fails to distinguish. This ultimately leaves the user to manually filter through irrelevant results in search for the most relevant documents.

Second, reliance on matching query terms to document terms can also result in search results that omit conceptually relevant documents because they do not contain the exact query terms entered by the user. Retrieving these relevant documents using a traditional search engine requires the user to appreciate the variability of word choices for a given concept and construct better queries. Alternatively, users may simply do without these valuable documents.

And third, traditional keyword search engines score and rank the relevance of documents based on the presence of query terms in those documents. This means that some documents with matching query terms and with non-matching but conceptually relevant terms may be ranked lower than desirable given their actual conceptual relevance to a given query. These erroneous lower rankings may force the user to wade through lesser relevant documents on the way to the more relevant documents or to overlook some of these documents completely.

Accordingly, the inventors have identified a need to further improve how information-retrieval systems process user queries.

As Thomas Smith observed in Web of Law, the U.S. citation network is highly skewed, with much of the legal authority concentrated in very few cases and the majority of it “dead.” Smith recognized that to truly explore the case web, we needed to move beyond terms towards concepts, which is why he launched PreCydent. Since then, concept-based searching (and now ranking) has only gotten more robust, and from where I sit, it would appear that concept-based search—as expressed in its various equations—and ranking is the best model for facilitating discovery. And the more we use it, as the feedback economy will tell us, the better it will get.

Now, the argument that search algorithms are attempting to supplant thinking (thus the cry of infantilization) is not entirely lost on me. It is a hard charge to refute when we start talking about how we will achieve the mechanical replication of a lawyer’s analogical reasoning. On the other hand, the case web is like a rising sea, and if we don’t stop hand-wringing over algorithms and longing for the good old days, we will drown. And to avoid drowning, we need technology to make good on its promise to deliver guided-search tools. More importantly, we need a transformative product, one that moves beyond the box and expresses itself in ways that Katz suggests—

People who cite Case X also cite Case Y. 

Lawyers who argue this principle also typically argue this principle.

Given the mixture of argument and content in your brief, have you considered this argument and content which is largely analogous to your argument and content?

We need a product that says, “Why yes Dave, I can do that.”

Over the last couple of years, I've been concerned about, and relatively unforgiving in my dislike of, the idea of law blogs, specifically lawyer-generated blogs, as a bellwether for legal publishing. Some have taken me to task, at least partially, for it. Nevertheless, I've remain annoyed by the chorus of social media marketers exalting the virtues of blog content (and social media streams) as a means of differentiating one from the herd. And no one has been more vocal about this than Kevin O'Keefe, the founder of the LexBlog network, which "partners with clients to develop custom social media solutions and strategies that create powerful Internet identities."

In fact, one of Kevin's posts earlier this year proclaiming the traditional legal publishing model could go up in smoke (the fire being blogs) is, more or less, representative of his long-standing position on the matter:

We’re seeing that getting published in legal journals, periodicals, treatises, and manuals is no longer needed to build a reputation as a subject matter expert. In the Internet age, we have blogs. We also have sharing of content from legal blogs across other social media (Twitter, LinkedIn, Facebook) to further establish one’s reputation as a trusted and reliable authority.

It may take a little time to play out, but it sure seems to me that the legal publishing model of LexisNexis and Thomson Reuters is no longer sustainable in the Internet age.

Kevin has been preaching unsustainability for years now. Last year we were looking to see legal publishers threatened by blogs that would unbundle legal media and old publishing distribution channels. And years before that we were waiting for law blogs to follow the lead of Huffington Post as the new media darlings. And yet, five years later we're still waiting for the duopoly to come unhinged.

Then six months later, as I was reviewing Kevin's LXBN (pronounced "L-X-B-N"), it dawned on me that my position on this matter has been clouded by a nostalgic view of publishing, where our human intellectual capital met or exceeded the expectations of our customers rather than falling far below them. Back then we were more interested in organizing, sharing, and educating, than repackaging, repurposing, and reselling content. Now, legacy publishers have moved into the service industry where it seems digital tools are more important than editorial efforts and we are watching the pool of writers leaving for other pastures (I decline to call them "greener" just yet).

So, in an attempt to get a handle on this, I called Kevin to talk to him about law blogs, LXBN, and the future of legal content. Our conversation, while brief, gave me a better understanding of how one way legacy publishing might intersect with open source content (blogs) for a win-win arrangement.

One of my main concerns about the notion that law blogs are bellwethers has been this idea that they are—by design—more reactionary than, say, a practice manual, treatise, or law review article. Speed, meaning the lack of friction normally created by having to work with a publisher, is a great advantage to blog publishing, not to mention a potentially broader audience. The by-product is, of course, brand recognition, or in some more unfortunate cases, ridicule.

But it seems to me that directories like the LexBlog Network have encountered a problem. They have thousands of lawyers blogging now, writing content—good or bad—on countless topics. And most of it is reactionary, meaning its unstructured, and finding relevant content on Lexmonitor is much like finding apps in iTunes, hit or miss. [Fn. 1] So along comes LXBN to curate the "best posts" from the network, feature the bloggers who write consistently, and organize timely content. It's the logical elevation from directory to news aggregator. But it still suffers from something legacy publishers have long recognized: writing about the law needs structure—it needs a taxonomy—for it to have long-term value.

West KeyNumber systems aside, legacy publishers are sitting on a huge taxonomy of the law with all the analytical resources they have (read: tables of contents, indexes). But what could happen if those taxonomies were opened to the public, and with universal IDs that referred back to the legacy content? What if the legacy publishers could step in, offer up a way to organize the web of blog posts, and make them relatable and discoverable in a way that they aren't now?

It seems to me that the blog networks and the legacy publishers could find a way to organize all of this content that does two things: the content relies on the legacies' very valuable structure and gives context to a particular blog post, while the legacies have universal IDs that they could then link to their own analytical content, allowing consumers to see current and possibly relevant blog posts on commentary, laws, etc., thus enhancing the overall network, even from behind a paywall.

The arrangement encourages lawyers to tag their content appropriately so they can not only be found through normal search, say through Google or Bing or their particular blog network like LexMonitor, but also through the legacies' platforms. Legacies are encouraged to show the links because the content is valuable and enhances the otherwise suspended prose of a legal treatise, law review article, practice manual, code provision, or selection of cases. It's a real chance to actually begin organizing the web, and not through search but rather through a mutual appreciation and respect for the value we all bring to the law.

__________

Fn. 1. I mention LexMonitor, but anyone who has ever used Lexis Web knows that findability of timely or useful blog content is problem we've yet to answer.

"[To compete with Bloomberg Law’s BNA coverage and now Lexis’ Law360 coverage, Thomson Reuters] will have to do better than its [current legal news website, newsletters, and blogs] to ratchet up the synergy between legal current awareness and legal research."
Hodnicki, It’s Official, LexisNexis Has Acquired Law360 (March 20, 2012).

To believe the Crowd, the legal publishing giants are in a race, chasing after all the undulating streams of current legal reporting and writing either through acquisition or search enhancements. I suppose it is vital for them to be focused in this way, as current conventional wisdom is suggesting that law firms will soon choose only one giant, and the giant that corrals the most ephemeral writing (read: open web) and integrates it into their research results is the winner? After all, the giants are committed to providing “critical legal and business content to help customers increase productivity and achieve better outcomes for their organizations and clients.”

For an industry that spends so much time looking at and studying precedent, the giants’ singular focus on providing urgently needed (read: present) legal content is a little puzzling, if only because they don’t seem to be acknowledging the communal spaces for historical research are disappearing. More to the point, the giants aren’t doing enough to exploit—in their respective digital commons—earlier editions of valuable treatises, hornbooks, practice guides, and the like. So, while the giants chase currency, I would argue they are losing it by ignoring the past.

While there may be a few publications that have past editions available to subscribers of Westlaw or Lexis [FN. 1], the earlier editions of most legal treatises, hornbooks, manuals, and dictionaries are not. Once updated, there is no digital “rollback” feature to a publication. Surely every user of these services, has at one time or another asked rhetorically, “Why can’t I slide over to {insert date} and see what the commentator said then about what I’m researching?” This frustration has led me to hoard certain titles, such as the Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth editions of Black’s Law Dictionary. After all, you never know when you’ll need the “correct” version. And this goes for many, many other titles as well (e.g., Witkin’s California Procedure 3^rd, 4^th, and 5^th editions, Texas Jurisprudence 1^st, 2^nd, or 3^rd editions, and on). When the libraries are gone, the only thing left available will be the now, and whatever I’ve manage to sack away as part of my physical collection.

For the last five years or so, I’ve been waiting for some publisher to implement the magical “rollback” button, for analytical material. [Fn. 2] It seems to me that our technology has matured to a point that we can implement such a feature for commentaries elegantly. And if you thought it exists already, it doesn’t principally because the content isn’t there. [FN 3]

As a small publisher in the very early 90s, we had the good fortune of being born digitally, but still only produced physical books. Like so many others who started at that time, our early editions are no longer accessible because they reside in old Quark, InDesign, or Framemaker files. These files are not highly structured documents like the XML files we’ve been producing over the last few years and it would take a great deal of effort, time, and expense to make them work nicely in our search platform. And yet, I understand the value each edition of our books might have to researchers looking for historical analysis of a particular rule or statutory change as it happened. Much of this information will simply be lost to the community or has been already because the libraries no longer carry our older titles unless we can find a way to convert them. If not, the last of the past paper editions will waste away in our library.

But what of the giants, those publishers who might not suffer from the same technological or cost limitations as a smaller publisher? What about the publishers who have been selling me digital access to their analytical titles for well over a decade, titles that are or were read digitally? What became of all the past editions? Surely, those enriched resources weren’t just cast aside once the annual supplement was incorporated? It is hard to imagine they’ve been locked in a legacy database and no one is left with a key.

I’ve floated over the financial and technological hurdles to making this happen simply to emphasize the point that throwing away past digital editions is foolish. While the authors and editors of these titles may not care what happens to words written long ago, there are many researchers who do. Perhaps as libraries disappear, legal publishers will recognize their unique role in preserving precedent, both primary and secondary. Maybe then the past will become as important and profitable as the present. Until then, I would encourage the Crowd to take a moment and stockpile as many print titles as it can.

____________________________

[FN. 1] Bloomberg might be included if publishers like PLI offer older editions through BLaw, but I don’t know.

[FN. 2] Compare features are a great start. Consider, for example, Xcential’s “As Amends the Law” legislative comparison feature. I’d love to see more features like this being implemented within the giants’ platforms for analytical material. We’ve already seen what they are capable of doing with statutes, e.g., WestlawNext’s “Versions” for selected statutes. I can see an earlier version of a statute when I’m actually reading the current one. This is a very helpful feature that could work well for analytical.

[FN 3] Okay, okay, rollbacks and revisions for written content have existed for a long time, but we typically associate them with a CMS. Take WordPress as an example. At the bottom of every post within the platform, there is a revisions section that allows you to rollback to earlier versions of your drafts. Something like this should exist for digital legal content.

Now the videos of the presentation won't be posted for another week or two, so I decided to give you my very, very quick short takes on each of the presentations. I'll leave it to you to decide which ones you might want to watch.

1. Mark Britton: Back to the Future. The internet represents multitude of communities. Lawyers should overcome their fear of technology, join these communities, and participate. To do this, lawyers should: set objectives, ID target audience, ID target time, establish CWB (core web presence), work social networks (push to CWB), stand out (report, don't commentate), monitor and measure, and understand mobile.
2. Richard Granat Legal Industry Startups: An Overview. Clients want fixed pricing, speed, transparency, convenience, and better technology. Start ups are eliminating the friction between these wants and legal services. Lawyers will be crushed by start ups unless they adapt.
3. Roe Frazer: Being a Web 2.0 Lawyer in the “Thank You Economy”. Understand that Web 2.0 is coming for lawyers (you'll be Yelped, Trip Advised, etc.), so develop a social media plan, and engage.
4. Will Hornsby: Ignite This! Five Ethics Rules That Should Be Incinerated. Many disciplinary rules governing how lawyers' market services are outmoded thinking. A 21st Century practice deserves 21st Century policies.
5. Ruth Carter: Flash Mob Law. A flash mob lawyer, who also participates in flash mobs, talks about the multidisciplinary approach needed to be a lawyer who advices flash mob organizers. Think criminal law, torts, property, IP, and entertainment law.
6. Jason E. Dyer: Where Canasta and Counsel Collide. Lawyers need to step back from technology and consider their clients needs and talents, particularly the elderly. Don't sell them short, but also don't expect technology to bridge a gap that's really a personal shortcoming of yours.
7. Eric Hunter: Moving Towards 100% Web. I don't know what this was about. I listened. Hard. The only thing that made sense was when he said "box them with buzz words," and mainly because he used so many of them I felt he accomplished his goal.
8. Jay Shepherd: One Word That Will Reinvent How You Serve Clients. When things are complex, you experience problems. When things are simple, you experience success. Embrace the "Result Triangle": (Clarify) Goals, (Show) Care, (Address) Fear. This is the formula for success. Comes with stories.
9. Rachel Rodgers: Down with the Law Firm Template! [She was a no show.]
10. Matt Spiegel: Don’t Just Communicate …. Number one client complaint: lawyer won't call back. But calling more often doesn't solve client problems. Need to think about clients as consumers of other services. For example, when was the last time you called the bank for your balance? Employ the same logic with your clients. You can be the best lawyer in town, but if your communication and collaboration skills aren't, then you will fail.
11. James F. Ring: Ending Cheap Talk in Legal Bargaining. Game theories and systems that can be used to get parties in the same position as they would find themselves on the eve of trial but earlier in the litigation. Undertone here is that lawyers get in the way of the process, and game theories can take them out of it.
12. Steve Best: Passion. Find what you are passionate about and embrace it. Once you've embraced it, share it. Once you've shared it, encourage others to find theirs.
13. Matt Homann: Client Service Design. [Matt added this little talk.] Think about who your average, ideal client is. Now be reasonable. Reasonable is "Bob". Now think about what your business would look like if Bob designed it. Identify every step in Bob's service experience, from waiting room to end of representation. Find out what annoys Bob (hint: same things that annoy you). Now find out how you can improve by dividing tasks into "easy," "hard," and "expensive". Make changes you can, measure effects. Now serve all of your Bobs similarly.

Hopefully these quick summaries will help you decide what videos you'd like to watch. Day 1 sessions start today, so I'll be checking out a few that sound interesting.

[W]e’re writing these things that we can no longer read. And we’ve rendered something illegible. And we’ve lost the sense of what’s actually happening in this world that we’ve made.
Kevin Slavin, How algorithms shape our world, TEDGlobal (July 2011)

I finished my last post speculating that the business of law will be changed by programmers in the same way one might boil a frog. That is, it will happen slowly under the guise of software support for all of the decision making you have to do every day, and you’ll accept that support, incrementally, because you are a consumer. And I’m using “consumer” in a pejorative sense here, namely one who passively (and happily) accepts programmatic decision-making in most aspects of his or her life, such as refrigerators (e.g., handling cooling systems), cars (e.g., protection algorithms to eco-driving), financial markets (e.g., the 2010 flash crash), movie preferences (e.g., the Netflix prize), and healthcare (e.g., knowing whether you are headed to the hospital), just to name a very few things. So, thinking about how much of our day-to-day existence we’ve already ceded to software and algorithms (or will), it seems appropriate to consider how—not whether—the practice of law will be reduced to an app.

The title of this post is one part a wink-and-a-nod to those within and hovering outside of our industry seeking to capitalize on the notion that most of the work lawyers busy themselves with is reducible to a series of logical arguments necessary to execute a program, and one part a call to recognize how we, as lawyers, are contributing to the perception and actualization that I Am Now An App™. The mark is not about whether software or algorithms will subsume us as attorneys, lawyers, or counselors, but rather how software will change our clients’ perspective of our profession. This was, to some extent, the concern of Richard Susskind in The End of Lawyers? when he addressed disruptive technologies. [Fn. 1] And like Susskind, I am concerned that most of us aren’t prepared for what we’ve set in motion.

Marc Andreessen, co-founder of Netscape, wrote last month that over the next 10 years software will extend its disruptive tendencies to other industries, particularly those with a heavy “real world” component.

Software is … eating much of the value chain of industries that are widely viewed as primarily existing in the physical world. [¶] Health care and education, in my view, are next up for fundamental software-based transformation. My venture capital firm … believe[s] both of these industries, which historically have been highly resistant to entrepreneurial change, are primed for tipping by great new software-centric entrepreneurs.

It’s hard to imagine an industry with a heavier real-world component than the practice of law, or one more resistant to entrepreneurial change. And yet, it would seem that we are “primed for tipping.” Jordan Furlong, a fellow Slaw columnist, recently assessed the current situation as follows:

New providers and new technologies are not going to replace lawyers. But they are going to marginalize lawyers and render law firms mostly irrelevant. [¶] Lawyers are smart, knowledgeable, creative and trustworthy professionals who, unfortunately, suffer from poor business acumen, terrible management skills, wildly disproportionate aversion to risk, outsized revenue expectations, and a business model about 25 years out of date. The market won’t abandon them—they have unique and sometimes extraordinarily valuable skills and characteristics—but it will find the best use for them: expert specialists with limited influence over the larger process.
Furlong, Goodbye to all that Law21.ca (Aug. 26, 2011).

Whether lawyers and firms will be displaced as he suggests will be answered in time, but meanwhile, we can at least consider what he and others are suggesting are the new providers and technologies that will accomplish such a great feat.

Over the last two years, we’ve been inundated with suggestions that the Susskindian revolution is upon us, and that the practice as we know it is collapsing. But outside of alternative fee and business agreements (and the imminent death of the billable hour), what sorts of businesses have been responsible for these dire warnings? In other words, what have consulting prognosticators been touting as the source for concern and worry?

As best as I can tell, the following suspects have consumed much of the Internet’s time and attention (and are presented in no particular order):

• Nolo’s online legal forms
• Quicken’s Legal Business Contracts & Forms
• Business Integrity’s ContractExpress DealBuilder
• Wilson Sonsini’s Term Sheet Generator
• Linklater’s Blueflag
• Eversheds’ HR Dealbuilder
• HotDocs
• Exari
• Koncision
• Kiiac
• West Publishing’s ProDoc
• Westlaw’s FormBuilder
• Rocket Lawyer
• LegalZoom

The common denominator among these businesses is document automation, which just happens to be §4.1 of the Susskind playbook on disruptive technologies. But when I think about them in the context of I Am Now An App™, I wonder why all the fuss over this stuff? It’s not new technology; lawyers have been relying on forms and blanks for over a hundred years and some form of document automation for at least a good 15 years. Even Susskind notes as much. [Susskind, The End of Lawyers? at 102.] So why are we giving so much attention to these businesses, and how are they going to change our relationship with clients?

It would seem the answer lies in Susskind’s Pre-Internet | Post-Internet distinction:

Pre-internet business thinking saw document assembly systems as internal efficiency tools mainly for law firms; post-Internet, we can see that this technology is a power vehicle for making legal know-how widely available on an online basis. [Id. at 103.]

In short, systems designed to make lawyers’ work more efficient are, post-Internet, being directed outward, toward the client, and this is disrupting (or has a greater potential to disrupt) the attorney-client relationship.

In my opinion, the disruption began many years ago with the Quickens and Nolo Presses, who were allowed (or won the right) to provide automated services directly to consumers for the simplest of legal transactions, such as wills, NDAs, and other business documents. LegalZoom and Rocket Lawyer are merely extensions of those services, but not necessarily also-rans because they add a different component, namely Web 2.0 savvy and legal online help (or essentially, a referral service). Either way, they are marginalizing some lawyers because they tap directly into the current DIY mentality of many consumers. [Fn. 2]

The other services listed above are business-facing, so they tend to be used by lawyers to facilitate workflow, but their long-term effect is no less disruptive, and this is where I see a greater threat than self-help divorce, simple wills, and NDAs.

For business-facing services where attorneys are considered the primary user, it seems logical that the user (read: attorney) is less of a customer and more of a sensor for the ecosystem. One of the benefits of having all of these smart, educated lawyers using and interacting with contract drafting and forms automation software is data collection. The more data the system can collect from the user, the smarter the system. And that collection has to occur passively because most attorneys won’t take the time to rate a form, suggest changes based on certain fact patterns, identify which form is most relevant, provide a decision-matrix, etc. If a forms-automation business is looking to scale, obtaining data—that is, the user’s intellectual capital—passively is an effective means of doing it. And as long as you, the attorney, are deriving a benefit, namely a more efficient practice, why should you care? [Fn. 3] It’s this feedback loop that creates an opportunity to sell services directly to the consumer, which facilitates the disruption.

Interestingly, the Internet has been so focused on forms automation lately that it’s pretty much ignored §4.5 of the Susskind technology-disruption playbook: online legal guidance. For some segments, I think this presents a greater opportunity for disruption than forms automation, but not in the same (negative) way.

Consider, for example, the online corporate ethics and compliance provider ELT, which was founded in 1997 by and relies exclusively on the significant intellectual capital of Littler Mendleson. In January of this year, Littler, through ELT, partnered with The Riverside Group, a private equity firm, to grow the business globally. ELT may represent a path to consumer-facing success for certain vertical businesses, assuming of course one can convince partners and associates in the firm to produce content on a schedule without taking credit for it (one aspect of Littler’s publishing success) and in the manner required by the affiliate (which is run by non-lawyers). Although ELT represents a disruption in the attorney-client relationship because it takes legal advice directly to the consumer through online classes and dramatic videos, it’s a good kind of disruptive. It’s one that allows the firm to participate in the financial success of an affiliated business and reach a larger consumer base than it might as a firm.

Keys to success, of course, might start with (1) consolidating intellectual capital [Fn. 4], (2) determining what services could be off-loaded to clients, (3) developing “guaranteed by lawyers” systems, such as ELT’s Legal Engineering™, or (4) embracing technology as an extension of the firm’s capital, not necessarily its brand (but recognize that the imprimatur is still valuable). Susskind adds:

I have identified three keys to success when it comes to making money from online legal guidance. First, for an online legal service to generate serious revenue, its use must actually add substantive value to clients. Unless clients think extremely highly of the systems and would be near panic stricken at the prospect of their withdrawal, then there is little chance they will actually pay for them. Second, the systems must not be easily replicable or competitors can easily mimic their development and … the prices of rival online legal services will tend rapidly towards zero…. Third, for law firms to charge for online legal services, it must not be perceived that these systems are internal systems that are simply being recycled for clients’ use. In that event, clients may feel cheated and will argue that such services are a natural (but non-chargeable) extension of the services traditionally being provided.
[Susskind, The End of Lawyers? at 125.]

Perhaps more than forms automation, online legal guidance requires lawyers to come to terms with I Am Now An App™ because to be successful they would first have to acknowledge there are aspects of the practice that require their knowledge and experience but in which they, as a person, can be disintermediated. With forms automation it happens slowly, without their consent, again, like boiling a frog. But convincing them to voluntarily off themselves so they can make money a different way is a very different, and difficult, proposition. Nevertheless, I do believe some firms will follow Littler’s footsteps and seek greater disintermediation as a means of global expansion.

I would be remiss if I didn’t mention Scott Greenfield’s recent reaction to the idea of “robot overlords,” as his thoughts represent a certain segment of the legal practice culture:

Technology may well bring useful tools to our practice, but they do not dictate our practice. The vultures who use technology in an effort to infiltrate the practice of law and medicine, to circumvent the judgment and advice that distinguishes what real professionals do versus the bot that spits out factoids, want to convince you that they are the future, that they own the future, that they own us. This is no more law than it is medicine.
[Greenfield, The Robot Overlords Are Here, Simple Justice (Sept. 4, 2011).]

And indeed, there are practices of law that will defy programmatic application for the time being, such as family, criminal law, and other areas where being an advocate and counselor (or therapist) is tangible. But make no mistake, this cannot be said for many other areas, such as within immigration law, that are capable of being defined by a routine workflow and little discretion. [Fn. 5]

It is good to bear in mind that much of I Am Now An App™ is a problem of our own making. As Kevin Slavin’s quote at the beginning of this post suggests, we are writing things we can no longer read. And I don’t mean that we can’t read statutes, judicial opinions, or briefs or represent clients based on all of this information, but the volume of the information being generated by lawyers, judges, legislators, etc. can no longer be found, digested, disseminated, or understood without software and algorithms. Much of modern practice requires software intervention, and it is only natural for today’s client-cum-consumer to expect technology will afford them some savings and relief within the traditional billable-hour model. It is also natural that we will push the boundaries of programming into every inch of the attorney-client space suitable. Whether you’ll be on the right side of the change will simply depend on your perspective of what you do today.

Good luck.

_______________________

[Fn. 1] To be clear, “disruption” refers to the displacement of attorneys or aspects of the practice of law through technological advances. It does not refer to the manner in which the implementation of technology within law practice has altered the way lawyers think, which has been adequately addressed in The Document Life: Why “lawyer” is moving from a profession to a metaphor.

[Fn. 2] I’m convinced that automated legal forms have given consumers permission to accept the idea that there is nothing special about many legal documents, and consequently a lawyer’s imprimatur is, essentially, a waste of money.

One benefit to the use of computerized forms revolves around a concept that is ingrained in the American mind—the ability, if one so desires, to make full use of the legal system without the interference of a third-party, i.e., a lawyer. Citizens can research their own particular legal problem and represent themselves pro se. However, the law can be an exclusionary profession, and the process of legal research may intimidate the average consumer. By using computerized forms instead of consulting an attorney, consumers may be able to limit the amount spent on remedying a legal problem. Printed forms with very broad instructions are available to the average consumer, but paper can be inexplicably intimidating in comparison to computerized forms. Computerized forms not only offer a broader range of help options than printed forms, they are also more easily edited than their paper counterparts. Instead of buying a separate set of forms for each possible situation, legal software typically contains a variety of legal documents.
Scott, Filling in the Blanks: How Computerized Forms Are Affecting the Legal Profession, 13 Alb. L.J. Sci. & Tech. 835, 838-39, 843, 853 (2002-03).

[Fn. 3] This is already happening with legal research, which is business-facing. For example, WestlawNext, which is marketed as an evolutionary step in legal research that provides greater assistance to human-decision making by providing you more “relevant” results, feeds your search queries and decision-making back into the system to help determine relevancy for every other user. And you’re glad to do it as long as the system gives you what you believe to be are the most relevant and accurate results.

[Fn. 4] As a publisher, I have often advocated for firms to let us come in and review their intellectual capital to determine what could be consolidated, streamlined, and published in an effort to capitalize on the brand and find additional revenue streams for the firm. Most advances have been rejected, but in the one instance it wasn’t, the firm discovered a number of inefficiencies and inconsistencies in the same practice group across multiple offices that made just the consolidation and clean-up effort worthwhile. From what I know about firm KM, my opinion remains unchanged: firms need a C-level IP and content manager that is looking for ways to monetize firm IP.

[Fn. 5] Within a day, Scott Greenfield followed up his robot overlord post with another recommending the creation of a new position within the practice of law: the Legal Practitioner.

I propose the creation of a new professional position, the Legal Practitioner. It’s modeled after the concept of the Nurse Practitioner/Physicians’ Assistant. It would require specified and regulated education, though significantly less than would be required for a lawyer and at a substantially reduced cost. It would require testing and licensure to make reasonably certain that its practitioners possessed minimum competencies and that the public was safeguarded from incompetents or, in the alternative, had redress.

The function of these Legal Practitioners would be to provide representation to member of the public in non-litigation aspects of the law, such as wills, contracts, uncontested divorces, real estate closings. The most critical function would be to distinguish between those legal functions they are fully capable of performing and those that require an attorney.
Greenfield, The New Position: The Legal Practitioner, Simple Justice (Sept. 5, 2011).

The concession further clarifies that the debate about robot overlords is merely one about the necessity for meat in the consumer-software sandwich.

I have this dream—a nightmare really—like one of those dreams where you’re trapped in an embarrassing or compromising position. In this dream, I walk into my law firm’s library and the shelves and books are gone. Instead, I see rows of keyboards and gleaming cathode ray tubes. The computers have staged a coup d’état.

Scott Stolley, The Corruption of Legal Research, For the Defense (Apr. 2004).

The promise and scope of Big Data is that within all that data lies the answer to just about everything.

Vivek Ranadivé, Chairman and CEO, Tibco, from Crunching Big Data: more than a byte-sized bet (June 9, 2011).

The recent announcement by Wolters Kluwer of its latest iteration of Loislaw—billed as LoislawConnect—highlighted some new functionality that made me pause. The press release noted that LoislawConnect offers to the consumer:

Enhanced search functionality – New federated searching gives you a comprehensive list of documents from all LoislawConnect databases. Then, easily refine and filter results.

(Emphasis added.)

This sounded really familiar to me, and that got me thinking.

First, touting “federated search” in marketing pieces (and building it into systems, if that’s the right order) is the norm now since WestlawNext was released last year. But as a consumer, I’ve been using federated search systems for years. So the response to these announcements is “meh, it’s about time.”

Second, our expectations as a consumer are informing our professional life more and more; in fact, many now demand that hardware, services, and content (whether print or digital) meet the same standards. For example, the 2011 ILTA/InsideLegal Technology Purchasing Survey confirms that over half of the surveyed firms (from 50 to 3,000 attorneys) are now providing IT support for employees that purchase and use tablets, which are principally consumer-oriented devices. 

Third, in thinking about the future of data, Jeff Jonas’ has observed that you can’t just federate systems, you have to comingle the data so the data can, well, find other data. In other words, federation is merely a stage on the way to the future. In light of Jonas’ observations, I would suggest that CALR vendors are in the realm of Stage Three of the data maturity model.

Fourth, the convergence of all this data—in what some are now advocating should be conceptualized as a “data lake”—will supposedly increase discoverability and prediction, among many other supposedly wonderful things. In Data Finds Data, Jonas describes increased discoverability this way:

Next-generation ‘Smart’ information management systems will not rely on users dreaming up smart questions to ask computers; rather, they will automatically determine if new observations reveal something of sufficient interest to warrant some reaction, e.g., sending an automatic notification to a user or a system about an opportunity or risk. [¶] When the ‘data can find the data,’ there exists an opportunity for the insight to find the user. [¶] How data finds data is a statement about discoverability, the degree to which previous information can be located and correlated with the new data. Discoverability requires the ability to recall related historical data so that an arriving piece of data can find its place, similar to the way each jigsaw puzzle piece is assessed relative to a work-in-progress puzzle. Each new puzzle piece incrementally builds upon what is knowable, at each given point in time relative to the evolving puzzle picture. Often new pieces, although important to building out the bigger picture, do not themselves bring new critical information. (On the other hand, some pieces may change the shape of the puzzle in a way that warrants ringing the bell—finding that one piece that connects the palm tree scene to the alligator scene.) It is at this moment in time, when the new puzzle piece presents the opportunity to reshape the picture, that discoveries are made. Real-time discovery replaces the need for users to think up and pose the right question at just the right time.’

Finally, data isn’t just “data” anymore. It’s “big,” and by big is meant every source of information connected to the Internet or available digitally (yes, that includes social media and context-aware data, i.e., mobile). So to advance, we will be asked to let go of our traditional notions of legal data (e.g., cases, statutes, codes, rules, regulations, executive decisions, treatises) and embrace something much larger. Something much more unwieldy and largely unstructured. The law is, after all, a living, breathing thing.

And that’s when the programmers will take over. They will come in and say things like, “We can replace and support human decision-making with automated algorithms. Our analytics can improve your decision making, minimize any risks, and unearth valuable insights that would otherwise remain hidden to you.” And these words will make sense to us because our margins are squeezed, competition is fierce, and we need more push, not pull. But with each step we potentially move farther and farther away from discovering the law to receiving it. Then, at some point, we will no longer be learned intermediaries, but messengers, and the “the law as it is” will no longer be within our reach.

The counterargument here, of course, is that law doesn’t really lend itself to the “big data” issues being discussed by technologists and computer scientists. After all, our jobs (for at least 85% of us) are to find, consume, and apply primary law on behalf of our clients, and for the most part this stuff must be in silos, which is sometimes difficult to find when we don’t know which one. So the business of law doesn’t really need anything other than a search engine that allows us to look at it all, and some fancier algorithms that make the relevancy of those results slightly better. But that’s it. Besides, the business of law is like a giant ship, and it takes a long time to turn around. (So you programmers can just stay in your cubicles and dark offices and leave us alone.)

For me, my money’s on the programmers because right now it’s really the sales and marketing people driving that bus. If the recent reorganization of Thomson Reuters is any indication of who will be calling the shots on what the future of legal research and content management is going to look like (and by extension, the practice of law), the next decade is going to be a period of amazing (read: possibly depressing) change.

As always, I look forward to hearing your thoughts in the comments.

You can't swing a dead cat [Fn. 1] on the Internet these days without hitting a lawyer or law librarian complaining about the never ending escalation of prices for legal content (print or digital), the unscrupulous business practices of certain legal publishers, and the ineptitude of member associations to address these problems (and more). [Fn. 2] And while all of this may seem new, it isn't.

I don’t know when the distrust between lawyers and law librarians and legal publishers actually began, but the late Professor Roy Mersky once stated that lawyers’ displeasure with the tools of their profession reached back to at least 1894 when the American Bar Association set up a committee to study law reports and digests. [Fn. 3] Anyone who searches through the ABA Reports or Law Library Journal will find them stuffed with committee reports, panel discussions, articles, and, at times, thesis reviews chronicling the mistrust between lawyers and law librarians and legal publishers. [Fn. 4] 

Although most of the commentary has been decidedly one sided, publishers have tried to make their issues understood. One of the best defenses of legal publishing came from Burdett Rich of Lawyers Co-op Publishing in a 1921 article that attempted to explain the many and varied problems of legal publishers, many of which continue to resonate today. In the piece, Rich reminds us all of the importance of the efforts of private industry to make the law accessible:

How worthily the law publishers have met the needs of the legal profession, the courts, and of the nation in these matters is a question on which opinions might not agree. Ideal service is not to be expected in such a field, in which any person is at liberty to engage at will; but, allowing for all the failures and imperfections with which the publishers may have been charged, it cannot be denied that through their service the knowledge of the laws of this country has become very widely diffused and made easily accessible to laymen as well as lawyers everywhere, to an extent rarely if ever equaled in any other country. The importance of this in a republic needs no comment.[Fn. 5]

But I suppose as noble as high speech can be, there is only so long you can ride that horse.

So let’s turn our attention to one of the more spirited (and publicized) debates between the haves and have nots. In 1956, the American Association of Law Libraries (AALL) held its 50th annual convention [Fn. 6], during which the AALL held a panel discussion titled The Case of the Librarian v. The Publisher. [Fn. 7] Opening for the librarians was Ernest Breuer, a law librarian for the New York State Law Library:

When [I was] asked to be a member of this panel and [told] what it was all about, I thought at first that the panel opposites would have a choice of knives, swords, or pistols. I am very happy, however, that we did not have to resort to such dangerous extremes.

Parenthetically, I might add that I feel like the proverbial parent who is about to spank his child, the child in this case being the law book publishers. After all, they come here, we accept their hospitality, most of us will take their drinks, and then we turn around and do this to them—but just like the spanking, it is absolutely necessary so there will be harmony in the family. And after it is all over I am sure that the publishers will accept our constructive criticisms in the spirit in which they are offered, but by the same token I hope that the publishers will bare their gripes so that greater cooperation can result in the publication, sale and distribution of legal material.

Ouch. [Fn. 8] Following these opening remarks, Breuer went on to note that law librarians had been discussing and considering the problems of law book publishing practices since 1922, which up to 1956 included duplication, high costs, low discounts, padding, poor editorial work, numerous editions, misleading advertising, and on. Sound familiar? It should. [Fn. 9]

Not to be bested by Breuer’s comments, Mayo Coiner of Matthew Bender delivered a rejoinder:

Advertising—and this is strictly a matter of viewpoint. You people must realize that the law book publisher's advertising is not aimed at you. You are not the market which is going to determine whether any given book or set of books is successful. That advertising material is aimed at lawyers, lawyers and accountants, or similar groups. [¶] I think you would do well to get your information, insofar as possible, from other sources.

* * * * *

Accurate information. What does 1955 pocket part mean? I don't know and, as Mr. Breuer again said, I don't think anyone knows. But what would you have us do? We admit that we follow inconsistent practices. What do you want? You pick that pattern and tell the publishers what it is. I can't conceive that you would get any really serious arguments on it.

* * * * *

Indexing. Now, just what is good indexing? If each one of us sat down to index any publication, we would come up with about two hundred different indices. Miles Price, who is a master at indexing, and I have discussed this many times. We have never been able to agree upon an index and I don't think any two of you could sit down and come much closer to agreement than Miles and I do.

Table of cases. As librarians, you like tables of cases. You would be amazed at how many lawyers look upon a table of cases as padding. I think the day of the table of cases in a good many types of materials is gone.

* * * * *

Continuing orders. We really like them, although some of you may not believe it, but when do we have a continuing order? I could make a file at least two inches thick by just going back over the past year and pointing out letters which I have received from librarians where we have automatically shipped material on a continuing order, only to have it returned with the notation, "We did not order this." This, to me, is a field where you must first clean your own houses. We are wary of continuing orders, at least in our company, because, as I said, we never know when you mean them.

Of course, Coiner saved the best for last:

I would like to say one thing, however, which has not been said to you before. I think much of [the problem between law book publishers and law librarians] is your own fault. I think you people should make yourselves heard, both individually and as a group. Many of the problems which have been mentioned here are capable of easy solution. Decide what solution you would prefer as a body and make it known.

Secondly, don't wait for the convention each year to tell us your difficulties. Those of us who are here are generally the men within the companies who are sympathetic to your problems. I can carry tales back to the office but if, as these things occur, you can write to me and make your difficulties known and I have something tangible which I can lay in front of our Executive Committee, I can be much more effective on your behalf when I agree with you.

Coiner obviously said much more than I quoted, but a recurring theme was “you people,” a phrase that probably did not ingratiate himself to the audience. Given the tone, I suspect his comments reflected some institutional bias that law librarians simply weren’t adroit enough to determine what was valuable to the modern attorney. And as we would learn later, apparently neither was the attorney. [Fn. 10]

Fast forward to 1970. The inestimable Julius Marke wrote an article titled The Gentle Art of Making Enemies or Law Book Publishing Revisited and captured the modern sentiment between the groups as follows:

In a sense, the ensuing confrontation [between law librarians and legal publishers] is paradoxical. After all, law book publishers' income and success depend largely upon their integrity and the good will of their customers. By the same token, law librarians who can depend on friendly, considerate, and cooperative law book publishers can more effectively serve their own readers. Over the years, the relationship between law librarians and publishers has been quite unique. Both groups are comparatively small in number and most contacts between them have been more personal than not. The pages of the Law Library Journal abound with gratuitous, albeit well-meaning advice offered by law librarians to law book publishers on the need to improve their trade practices. Publishers have replied in kind, suggesting how ill-founded law library practices have prevented them from serving these institutions properly. Yet, it is obvious that something has gone amiss. Despite the years of meaningful dialog and friendship, there still appears to be a failure of communication. Do publishers realize how some of their practices, whether intentional or not, have been an aggravating source of deception and concern to law librarians? On the other hand, are law librarians sufficiently sensitive to the internal problems of law book publishers that constrain them to adopt certain policies? [¶] It is my thesis that actually we are more concerned with misunderstandings than with skullduggery. Perhaps an accounting of these misunderstandings might be of value in suggesting the issues that eventually must be recognized and resolved. [Fn 11]

And as best as I can tell, we’ve spent the last 40 years taking an accounting of the misunderstandings—many of which have been the same for over 70 years—but that’s about it. [Fn 12] That goes for the latest Vendor Colloquium as well. Just more accounting of grievances and misunderstandings (read: lip service).

So where does this leave us?

Well, we should be honest with ourselves. In reviewing the literature and considering publisher practices (before, during, and after the FTC guidelines), it would seem that two conclusions can be drawn. First, lawyers, on the whole, have simply abandoned their grievances. Second, AALL cannot change publisher practices for the simple reason that it is such a diverse organization that no consistent message on what law librarians want can be agreed upon. Big, medium, and small law don’t share the same interests among themselves and don’t share them with academic. Add to this the problem of having publishing representatives as members of AALL and you can see why it doesn’t work.

What I’m saying is this: lawyers and law librarians are tilting at windmills. The publishers won, and you lost. One hundred years of literature has proven this.

Ah, but is there hope?

In 1971, Professor Edwin Schuck of Columbia University School of Law had this to say (and it applies with equal force 40 years later):

One of our members, righteously indignant at a piece of blatantly deceptive advertising he had received through the mails, circulated it to all members of the committee recently, with the comment that we must take prompt action on the proposed code [regulating law book publishers] in order to stop this kind of advertising. I submit to you that a publisher who knowingly and deliberately violates Federal law by deceptive advertising will not be deterred by the knowledge that he is also violating the AALL’s code. Only action by an enforcement agency of Government will provide the necessary deterrent. [Fn. 13]

And perhaps that is where the answer lies, at least for some of the more egregious violations.

The Florida Attorney General in 2009 entered into a settlement with Matthew Bender & Co. concerning the shipment of unordered merchandise and negative option plans, which required the payment of $2 million and change and an agreement to change their business practices nationally. Not surprisingly, in the same year as the Matthew Bender settlement, the Attorney General opened an investigation into West Publishing for “receipt of unordered merchandise.” The AG’s office cannot comment on ongoing investigations, but as a legal publishing consumer and vendor, I am very curious to know the scope of the investigation and what has been learned so far. I hope the resolution of the civil investigation will help us all, and I would encourage anyone with knowledge about the investigation to comment.

While government action may be cold comfort to many of us in this business, whether consumers or vendors, it is probably the only thing that will make a difference. I know that many readers of this column believe their online words can effect change, but I’m here to tell you they can’t. That’s not to say stop writing, but just recognize that in one way or another lawyers, law librarians, and legal publishers have been exchanging pleasantries and barbs for over a hundred years, and not a lot has changed. Just the technology. 

As always, I invite your comments.

____________

[Fn. 1] The best guess I could find for the origin of this phrase is from Mark Twain, The Innocents Abroad, pt. 1, ch. 2 (1869) [http://www.gutenberg.org/files/3176/3176-h/3176-h.htm]: "We selected a stateroom forward of the wheel, on the starboard side, "below decks." It had two berths in it, a dismal dead-light, a sink with a washbowl in it, and a long, sumptuously cushioned locker, which was to do service as a sofa—partly—and partly as a hiding place for our things. Notwithstanding all this furniture, there was still room to turn around in, but not to swing a cat in, at least with entire security to the cat. However, the room was large, for a ship's stateroom, and was in every way satisfactory." [back]

[Fn. 2] See, e.g., Join the New AALL Caucus on Consumer Advocacy, Information Vendors, Librarians, Associations, and Antitrust, Vendor Relations. [back]

[Fn.3] Law Publishing Under Attack, 64 Law Libr. J. 533, 539 (1971). In 1937, one ABA committee charged with investigating the problem of law report duplication studied the issue and offered some suggestions for addressing the problem, but with this caveat:

The publishers of the [unofficial] reports might take advantage of their monopoly to increase prices, to cheapen the materials and typography of their volumes, and to prepare inadequate head notes, all to the disadvantage of the legal profession. Such a scheme should not be promoted by the bar unless safeguards are provided. One of these safeguards might be the formation of a joint committee of the American Bar Association, the American Law Institute, the Association of American Law Schools, and the American Association of Law Libraries, the four nationally organized groups representing the consumer interest, and insist that the publisher or the group of publishers putting out the volumes of decisions work with such joint committee, and make decisions as to publishing matters only after consultation with it. [

Report of the Special Committee to Consider & Report As to the Duplication of Law Books & Publications, 62 Annual Rep. A.B.A. 912, 916 (1937). After reading these types of reports, I really get the sense that lawyers thought legal publishers were (or would) stick it to them. [back]

[Fn. 4] Mersky also noted,

Lawyers generally seem to feel that publishers take unfair advantage of the ‘captive’ position of their customers with respect to the reporters, encyclopedias, statutes, and other sets of law books that lawyers have in their libraries.

I don’t think this sentiment has changed one iota in a hundred years.

[back]

[Fn. 5] Rich, Present Problems of Law-Book Publishers, 14 Law Libr. J. 87, 88 (1921) [back]

[Fn. 6] There was some debate as to whether it was actually the 49th or 51st meeting. See Proceedings of the Golden Jubilee Meeting of the American Association of Law Libraries, 49 Law. Libr. J. 375 (1956). [back]

[Fn. 7] The Case of The Librarian v. The Publisher—A Panel, 49 Law Libr. J. 467 (1956). [back]

[Fn. 8] For those of you familiar with Joe Hodnicki's writings on the Law Librarian Blog, you will understand Breur's "spanking" sentiment. Here are some gems: (1) Raising the Bar for “Publisher's Staff” Content After Rudovsky? On some really bad decisions made by West and its many and varied consequences for not being “proud” of publishing a “sham” pocket part; (2) Product Development Thomson West-Style, or (3) “Powered by Service:” Not TR Legal’s Library Relations Model. I have to say, Joe Hodnicki is one of few remaining out-spoken critics of legal publishing practices in the United States, and it will be a sad day when his critical eye is no longer turned on the relationship between vendor and customer. [back]

[Fn. 9] This past May, for example, one law librarian listserv had a discussion breaking down why they thought West Publishing indexes were so poor. It was an insightful discussion, and if I could link to it, I would. [back]

[Fn. 10] Over a decade after the 50th Annual Meeting, Raymond Taylor would write an article that became an integral part of the FTC debate concerning the regulation of law book publishers, and in it, he argued that lawyers were too busy to be careful:

A word of explanation is appropriate for those who might wonder how lawyers possibly could be naïve consumers, particularly to the point of becoming victims of the unfair practices of the producers of their most important working tools. The reason lies in the fact that the time of the modern lawyer usually is too valuable for him to devote much of it to the examination and selection of new books and the careful scrutiny of advertising circulars, invoices and even the books that publishers send to him. These duties often are left to those whose experience and interest do not qualify them to detect the true nature of publishers’ practices. It frequently is a junior partner, new associate, bookkeeper or recently employed secretary who handles incoming shipments from publishers and the payment of bills. Rather than being done by a lawyer or librarian, putting in pocket parts and loose-leaf material often falls to the lot of a disinterested secretary and is the duty that she least likes to perform.

Taylor, Lawbook Consumers Need Protection, 55 A.B.A. J. 553 (1969). [back]

[Fn. 11] Marke, The Gentle Art of Making Enemies or Law Book Publishing Revisited, 63 Law Libr. J. 3, 3-4 (1970). [back]

[Fn. 12] For example, the AALL held a panel discussion in 1999 between legal publishers and law librarians titled Meeting of the Minds at the Crossroads of Legal Information. I have been unable to locate any information concerning the outcome of the meeting, which I interpret as nothing substantive. So just more accounting of the misunderstandings with little to no action. [back]

[Fn. 13] Law Publishing Under Attack, 64 Law Libr. J. 533, 547 (1971). [back]

Roberta Shaffer, the Law Librarian of Congress, recently gave a keynote to the American Association of Law Librarians Vendor's Colloquium in Chicago, and during that presentation made a number of observations about socio-info, law practice, legal research, and legal publishing trends [Fn. 1], two of which I found particularly important to highlight. First, she said that legal publishers can find lawyers to update existing content, but are having problems getting lawyers to write new treatises. Second, she said our vocabulary has changed, specifically that we are using shorter sentences and shorter words to help us cope with information overload. [Fn. 2] I think both of these observations are interesting indications of how digital culture has affected (1) our perceptions on personal branding and marketing and (2) how we interact with information.

In the case of personal branding and marketing, lawyers are constantly encouraged to leverage digital media as a means of developing a personal or firm brand and to spend whatever free time they can muster to deliver content through web channels and streams in an effort to boost their presence and attract clients. [Fn. 3] Not surprisingly, this perspective is vastly more appealing than the old-school marketing ploy of becoming a published author. Nowadays very few people like the idea of spending a couple of years writing a tome dedicated to some aspect of the law, particularly when it won't be read by prospective clients. Thus, the odds of finding a lawyer dedicated enough to create such a title are getting worse for publishers every year. To be clear about that point, I readily acknowledge that the market for new acquisitions is still robust (e.g., the American Bar Association puts out 125 to 150 new titles a year), but those aren't the kind of books that the large publishing houses built their reputations on over the last century (read: subscription-worthy titles).

In the case of how we interact with digital information, Shaffer informs us that the volume of data we can receive on any given day now exceeds the equivalent of 174 newspapers worth of information. With that much data to process, it's no surprise that information curators are digital darlings (read: we need a filter) and we take a great deal of comfort in Twitter's 140-character limitation (read: we can only process in small chunks). The effect is pervasive and is influencing the time young lawyers are willing to spend on understanding their research. Note, I did not say conducting research. The focus here is on the ability to understand the why behind the answer. And this is where I think it gets difficult for publishers of legal analytical content.

The Big 2 are carrying a many legacy titles right now, and as best as I can tell, they haven't quite figured out what to do with many of them other than to raise prices commensurate with declining subscription rates or bundle them with other products and ship them as part of "an existing subscription," a practice that stung Lexis to the tune of $2 million and some change in Florida in 2009. These may seem like viable options if you think the problem is the economy stupid, but I think the problem is a lot larger than declining budgets. The titles, as they are currently configured and written, aren't that useful to modern practitioners anymore.

From where I sit, the lack of utility with these titles lies in the fact that (1) as Shaffer pointed out, we're overwhelmed with information, and (2) we no longer have time for contemplative study in our daily practices. As Shaffer noted, the practice of law has shifted from a focus on legal concepts and theories to facts. [Fn. 4] We want material that is on point, and we'd like it now please.

Let's consider the Google generation for a second, the touchy-feely Gen-Yers. If I say, "first page results only" or "top 5 hits," you know what I mean. This generation of researchers won't look further, so you've got to hit upon the answer the first time, otherwise they will simply get locked into an iterative search process until something appears on page 1. I see this research perspective (the quick-and-on-point culture) informing publishers on how this generation of lawyers wants analytical material to be written and displayed: quick access, short sentences supported by the law, numbered and headed paragraphs (i.e., bread crumbs), citable (i.e., I can plagiarize it and be right), heavily cross-referenced, faceted, etc.

This shift in researching perspective is not a small thing because it reflects the pressure digital culture is having on print, and we aren't even talking about eReaders. So many of the successful titles carried by the Big 2 publishers today were written at a time when lawyers could be more leisurely about their learning (i.e., clients would pay for the research time). This isn't the case any longer. A book written for a different generation, even if up to date, is no better online than it is in print because the mode of communication is much the same. The stylistic framework for the title is mimicked and carried forward from edition to edition, so simply allowing it to be searched digitally won't make you smarter about a subject faster (or if so, only incrementally). This limitation doesn't make the product bad, it just means that it would be more useful (and possibly more successful) if it was modernized.

This is where remixing comes in.

Much has been written about the remixing of content, from texts to video, and the legal implications of mash-ups. Perhaps the most widely known among lawyers is Lawrence Lessig's Remix: Making Art & Commerce Thrive in the Hybrid Economy, which is really more about individuals and the economics of creating new content with copyrighted works without the owner's consent. My use of the term, however, is much more benign and not at all offensive to the nondigital culture.

So what do I mean by remixing then? When I look at the catalogs of the Big 2, there are a tremendous number of titles I wish I had complete access to, and by that I mean the entire digital text and the rights to mash it up with other titles and rewrite it to create something different and more accessible to the new generation of lawyers. It's remarkable how much great information is buried in arcane language, poor document structure, and, yes, footnotes. (FYI: footnotes don't make it easy for lawyers to crib content for their briefs.) I'm fairly confident that we could create some great titles that would breathe new life into some tired, but still accurate, information, and in the process, make lawyers feel smarter quicker. Perhaps we could even tap into all of those lawyers who are willing to update rather than create new content.

And this leads us to the first problem with remixing: author contracts. For acquisition contracts, I would encourage all publishers to start looking at them and negotiate remixing rights, which I would loosely define as the right to alter, transform, or build upon a work (similar to what you might grant under a Creative Commons license). The contract would also have to address the author's moral rights, making sure to deal directly with "derogatory" works to prevent any future quarrels over the outcome. If your list includes numerous related and complementary titles, you should be working on a script that convinces authors of the benefits of granting these rights. For nonsub authors on a backlist, this shouldn't be too hard to do, although compensation is always a sticking point (is it a royalty, a flat-fee, will it be based on some formula of percentage of title used, etc.). For authors-as-a-brand who have one or more successful titles, the conversation will be decidedly more difficult. But that isn't a reason not to do it, particularly given the pace at which the publishing economy is moving right now. [Fn. 5]

The second problem then is editorial talent. The success of any remixing effort will depend entirely upon the editors responsible for creating the Frankenstein. Publishers will have to identify the characteristics that make up a top-notch remixing editor, which at the very least suggests an excellent writer, a thorough understanding of traditional and modern research approaches, strong comparative law skills, the ability to see how a better product might emerge from similar or disparate resources, and a good understanding of the marketplace (digital versus print, sales channels, etc.).

Late last year I was mulling over the problem of decaying commentaries. The process for commentary decay looks something like this: (1) a book’s sales begin to decline; (2) the publisher cuts the author’s royalty or fee for updating the book; (3) the author loses interest or quits; (4) the publisher brings the book in-house to be updated; (5) the in-house editors are unhappy with having to work on a dog and are already stressed by the number of books they have to keep up with; and (6) as a result of (1)-(5), the product ends up being even less valuable, and in some cases, wrong on the law. I wondered what was to become of all of this content, which at one point was quite valuable to a certain generation of lawyer. After looking at some of those products, I realized they are still quite valuable, they just can't be accessed by the new generation of lawyer. So what we need to do now is spend some time trying to figure out how we can rescue them before the IP is irretrievable.

______________________________________

Fn. 1. I did not attend the colloquium, and so these "observations" are second hand from the various posts written about the keynote.

Fn. 2. According to David Brooks in his new book, The Social Animal, humans have a vocabulary of about 65,000 words, most of which we possess simply because we like to have sex. That's a paraphrase, of course.

Fn. 3. For example, fellow Slaw contributor Jordan Furlong recently wrote in Reluctant publishers: helping lawyers generate content:

"Make no mistake: your law firm needs lawyer-generated content if it hopes to compete for attention and respect on the Web. So if your lawyers don’t think content matters, if they don’t have the right incentives to produce it, or if they think it’s something they can delegate to a staff person and forget about, you need to correct those misperceptions, and fast."

I'm not taking up the debate on the use of the web as a brand-building platform, but I would be remiss if I didn't mention a recent article studying and expounding upon the citation of blog posts in U.S. judicial opinions that confirms what many older practitioners already know about the relationship between brand reputation and blogging: street cred comes from practical expertise and traditional publishing channels, which then lends credence to the blog, not the other way around. See Peoples, The Citation of Blogs in Judicial Opinions, 13 Tul. J. Tech. & Intell. Prop. 39 (2010).

Fn. 4. For example, this focus has recently prompted Mary Abraham over at Above & Beyond KM to suggest guided search to Westlaw and Lexis because it would reward a lawyer who understood the facts and context of the case at hand and not her ability to construct a perfect search query.

Fn. 5. If authors don’t have competing works provisions, it might be possible for other publishing companies to approach those authors for remix rights to titles currently being published by another publisher, much in the same way that digital rights are being negotiated on the trade side. Don’t quote me on that as I haven’t spent a great deal of time looking into the IP issues or comparing industry publishing contracts. But it certainly suggests that there might be some opportunities for new publishing ventures.

Imagine this: You are a busy lawyer with a multi-jurisdictional practice, and frequently find yourself in different courtrooms or offices in various counties, states, provinces, etc. At each one of these locations, you need access to relevant, location-specific information, such as local rules of the court. Now let’s assume you carry a networked mobile device that has one or more “apps” giving you access to primary and secondary source material. The portal, while very modern, is still dumb, and by that I mean it requires you to navigate—whether by search, facets, tables, or indicies—to the location where the relevant jurisdictional materials are located (assuming primary source information is what you’re after) or worse, to slog through secondary source content that explains specific jurisdictional requirements.

But what if all of that information was reactive, meaning it changed dynamically based on your location, with the content shifting with each crossing of a county line? What if we took that even further and said the content changed as you walked into each courtroom, with local local rules and general orders being pushed to the home screen of the app and important secondary practice guides morphing to reflect cases decided by that judge? What if instead of navigating to find the content, which already exists, it simply presented itself to you?

It has occurred to me that in an age of connected, location-aware mobile devices, we have a unique opportunity to improve the “findability” of legal information. And while it may represent an incremental step, it is an enormous leap towards the idea of smart data, that is, data that changes as sensor information touches it.

My thoughts about the marriage between sensors in mobile devices (e.g., phones, tablets) and primary and secondary legal source content (e.g., cases, rules, statutes, treatises, manuals) recently sprung from three posts. First was the Economist’s special report titled “It’s a smart world”:

[I]t is the smartphone and its ‘apps’ … that is speeding up the convergence of the physical and the digital worlds. Smartphones are packed with sensors, measuring everything from the user’s location to the ambient light. Much of that information is then pumped back into the network. Apps, for their part, are miniature versions of smart systems that allow users to do a great variety of things, from tracking their friends to controlling appliances in their homes. [¶] These and other services are bound to grow together into what Jan Rabaey, a computer scientist at the University of California at Berkeley, grandly calls ‘societal information-technology systems’, or SIS. [¶] More processing power and better connectivity [will] allow the construction of computing systems capable of storing and crunching the huge amounts of data that will be produced by these sensors and other devices. All over the world companies are putting together networks of data centres packed with thousands of servers, known as ‘computing clouds’. These not only store data but sift through them, for instance to allow a smart system to react instantly to changes in its environment. [Fn. *]

Second was Joe Esposito’s terrific piece on sensor publishing at Scholarly Kitchen last December, titled “The Ambient Authorship and Subtle Potential of Sensor Publishing”:

For some sensors, the phone’s owner may direct the inputs, as when someone uses a phone as a bar-code reader, but other sensors will operate autonomously — How fast is this car traveling? What is the humidity? What patterns can be detected (and what do they mean) when a phone’s ringer is turned on and off? All the data that is collected is then sent over the network to a database, where it is (or will be) analyzed in many ways. The output of that analysis could be a publishing product. [¶] I first stumbled across the role of sensors several years ago, when an entrepreneur pitched his new company to me. His idea was to affix sensors to fleets of trucks and collect data from these mobile sources. I will decline to say what he planned to do with the data (yes, it was an eye-popper), but it was a publishing idea — high-end analytic data delivered to a specialized market.

From these two pieces, I began thinking more about the inverse of Esposito’s proposition, namely that location and other sensors influence what digital primary and secondary source material you read rather than actually creating it. But my thoughts really didn’t come together until I read this third piece by the always insightful Craig Mod, titled “A Simpler Page”:

Tablets are in many ways just like physical books—the screen has well defined boundaries and the optimal number of words per line doesn’t suddenly change on the screen. But in other ways, tablets are nothing like physical books—the text can extend in every direction, the type can change size. So how do we reconcile these similarities and differences? Where is the baseline for designers looking to produce beautiful, readable text on a tablet? [¶] If the axis of symmetry for a book is the spine, where is it on an iPad? On one hand, designers can approach tablets as if they were a single sheet of ‘paper,’ letting the physicality of the object define the central axis of symmetry—straight down the middle. [¶] On the other hand, the physicality of these devices doesn’t represent the full potential of content space. The screen becomes a small portal to an infinite content plane, or ‘infinite canvas,’ as so well illustrated by Scott McCloud. [¶] Regarding iPad book design, designers are left with a fundamental question they must answer before approaching this device: Do we embrace the physicality of the device—a spineless page with a central axis of symmetry? Or do we embrace the device’s virtual physicality—an invisible spine defined by every edge of the device, signaling the potential of additional content just a swipe away?

It occurred to me then (and after studying Mod’s image below) that many publishers simply regard the content presented on an iPad and other mobile devices as “on rails.” We search, tap, swipe, swipe, and move through content going up or down, from one side to another and back again. But even if done elegantly, it’s still dumb as far as legal content (and presumably others) is concerned, and it doesn’t need to be.

When an author is creating, for example, a practice guide for civil trial lawyers, she is, at many times, faced with the prospect of addressing different jurisdictional requirements. The product’s taxonomy may reflect the different jurisdictional requirements through a rigid structure or informal notation system (e.g., “circuit split” notation). My experience with many national treatises or manuals is that authors tend to reflect the rules and preferences of the largest jurisdictions while ignoring the smaller ones (e.g, they might say “consult your local rules” as guidance). In a print-only, non-mobile world, this practice makes complete sense. An author cannot (and a publisher will not) dedicate space to addressing every possible local permutation or supplementation of a rule. So the default is simply to inform the lawyer to be prepared because things might be different where she lives.

In the modern age of mobile devices though, we have an opportunity to extend this content because the information is born digitally and sensors can provide the location data to make it immediately observable. It is an infinite canvas of legal information that doesn’t require us to search and swipe our way through it. It simply goes to the right place.

____________________________

[Fn. *] For an interesting law-related example, see Greg Lambert’s recent post on 3 Geeks concerning case law, legal history, and GPS.

In 1910, an Englishman by the name of Percy T. Carden ^{[Fn. 1]} published an interesting proposal arguing for the creation of loose leaf law reports, which, at the time, generated considerable debate concerning the merits of ditching bound volumes in favor of publishing cases as single-issue slip opinions to be filed away in drawers. See Carden, Loose Leaf Law Reports, 26 L. Q. Rev. 75 (1910); see also Loose Leaf Law Reports, 30 Can. L. Times 244 (1910) (doubting that debris of littered “loose leaves” would ever find their way back to their proper places); Hawley, Law Reports Loose Leaf System, 3 Law Libr. J. 48 (1910-11) (suggesting objections to system outweigh anything to be gained by it, but allowing for possibility that system would work for legal encyclopedias or digests); Singleton, Loose Leaf Law Reports, 26 L. Q. Rev. 158 (1910) (“It is hoped that [Mr. Carden’s idea] will be speedily acted on.”). From one commentator came this quip:

If loose leaf law libraries are convenient, doubtless they will come, and instead of pleasing rows of book-shelves we shall look on piles of drawers, suggestive of drugs or deceased butterflies, but really filled with careful selections of judicial wisdom.

Fredlund, Loose Leaf Law Reports, 3 Law. Libr. J. 44, 46 (1910-11).

If Carden’s proposal had been limited to merely slicing off the bindings of reporters and alphabetizing cases, this would be a much shorter post. But as luck would have it, Carden went a bit further and suggested that the loose-leaf system, to be of much use, needed “cards” attached to the cases, each of which would have looked like this:

Click on image to enlarge.

As Carden explained,

The primary function of the card is to act as a guide to any one seeking the case to which it belongs. This function it performs by bearing the case-name printed on the extension so as to stand up above the general level of the tops of the leaves [cases] in the drawer. The result of this arrangement is that on opening the drawer the names of all the cases contained in it are seen one behind the other in alphabetical order. The eye rapidly picks out from theses the name sought, which done, the card bearing the name, and the case to which it is attached can, if desired, be at once lifted out of the drawer and carried into court or wherever else they may be required… [¶] The primary function of the card as an index being thus fulfilled by the extension carrying the case-name, the rest of the surface of the card remains available for other purposes.

According to Carden, the card itself would contain a tremendous amount of information as first issued:

1. The case name printed in distinctive type.
2. The court information and date the opinion was decided.
3. The “catchwords” to convey the general nature of the case.
4. The “digest note,” which includes a short summary of the case’s history.
5. A “noter up,” which is a listing of cases relevant to a particular point raised in the opinion and a notation of how those cases were treated in the opinion.

But what of future developments? Carden suggested that after the opinion was decided, the card could be returned to the publisher (which he called “collection, noter up, and return”) for the following additional information:

1. The history after decision (i.e., reversal or restoration).
2. Future treatment of the points of principles decided in the opinion in other cases.

Carden believed that the cards were invaluable because they would—

hold upright the leaves of the case to which they were attached. The cards … guide straight to the case; they give, at a glance, the date of its decision and the Court which decided it; where else it is to be found, and what, roughly, it is about; what principle of law it decided, and how the point arose for decision; prior cases on the same point and how they were dealt with in this case; and, finally, the subsequent history of the case and of the decision which was given it.

Now, I want you to take a look at this image:

Click on image to enlarge.

One hundred years later, the essential metadata of a case hasn’t changed all that much. Carden tagged cases by attaching a marked up card stock; CALR vendors like Westlaw tag cases digitally. And although we use different techniques to find cases now (the accuracy of which is always debatable), for each digital slip opinion we’re still focusing on its history, treatment, and citing references. ^{[Fn. 2]} The primary difference is the visual digest.

I find that Carden’s proposal raises interesting questions about how we might visualize core metadata. He suggests that it exists on top of the case and not as tabs ^{[Fn. 3]}; it is the first thing a user looks at when interacting with a case. And when you’ve been practicing long enough, you already have a running thread of legal propositions and seminal cases in your mind’s eye. So there is, I believe, a certain attractiveness to Carden’s card idea as compared to our current overreliance on snippets (the darling of electronic search), which I find to be largely inadequate to convey meaning (and understanding) because there is no taxonomical context for them. 

Looking at the proposal, Carden’s cards (at-a-glance) attempted to answer fundamental questions such as:

• Is this a {identify specific type of case, e.g., admiralty} case?
• What is the case about?
• Who decided the case and when?
• What is the procedural posture of the case?
• Was it appealed and what was the result?
• Did it affect other cases?
• Have other opinions cited to it, and what position (e.g., applied, considered, disapproved) did they take?

It is remarkable how young lawyers these days can’t even answer these basic questions (particularly the procedural posture) about opinions they find online. The essential metadata is at their fingertips (and more), but they don’t know it because they can’t see it (looking for that key language from the snippets you know). 

The point of dredging up a hundred-year-old idea is to emphasize two things: (1) the more things change, the more they stay the same, and (2) good ideas can come from anyone, no matter how old they are. CALR vendors should be experimenting more with how we can visualize core metadata quickly (and consequently, understand the relationship of a case or statute to the research question), rather than just stuffing information in tabs and different screens and making us scroll through the results. ^{[Fn. 4]} 

____________________

[Fn. 1] I do not know if it is the same Percy Carden who wrote “The Murder of Edwin Drood,” but it would be quite interesting to know if the two were one in the same.

[Fn. 2] Yes, I am aware of certain advancements, such as access to trial court records and appellate briefs, which provide valuable data to understanding a court’s opinion. But in my experience, most lawyers—particularly the youngest—do not refer to these documents for such purposes. Another failing about which I could spend countless hours discussing. Also, access to this data is generally limited to those lawyers who can afford to pay for Westlaw or Lexis.

[Fn. 3] An interesting aside, the original Shepard’s—known as “stickers”—were printed on gummed, perforated sheets, which were designed to be divided and pasted onto the margins of an individual case. Morris, The Future of Shepard’s Citations in Print, 26 The CRIV Sheet 3 (May 2004). The history and treatment of a case was often visible to an attorney before she even read the case. 

[Fn. 4] This is an oversimplification, I know. Each tab on the WestlawNext screencap, for example, actually contains visual cues for understanding the information (e.g., on “Negative Treatment” tab, you would find cases or statutes overruling, reversing, following, criticizing, distinguishing, etc. the case). But the visualizations on these pages haven’t really changed much in decades. 

In conjunction with the release of his latest autobiography, The Fry Chronicles, Stephen Fry has produced a rather unique interactive iPhone app titled myFry. What really catches your attention about it is the app’s navigation system:

When I first saw it, I was immediately struck by its beauty. Its functionality, however, remained something of a mystery to me. The designer of the app, Stefanie Posavec, writes:

The app functions as a ‘visual index’ of key theme tags within the book, which have been divided into 4 major groups: People, Subjects, Emotions, and Fryisms (metaphors, similes, word play, and other interesting elements in Fry’s writing). The book has been written in a style that is suited to splitting the text into separate ‘moments’ in Fry’s life.

After watching Fry’s video demonstration of the navigation system, the representation seemed obvious, and its extension to legal publishing even more so [fn 1].

As legal publishing struggles with the debate to end print and embrace ePub and apps, a type of syncretism will be necessary to reimagine all of this information we are creating. In other words, it shouldn’t just be a matter of taking text, converting it, and republishing it digitally. Like myFry, legal publishers have an opportunity to embrace information designers to help us discover new ways of interacting with and understanding the law. We shouldn’t leave the job solely to focus groups (mainly lawyers) and computer programmers.

To get a sense of what good information design can do, some examples of data visualization that I like right now include David McCandless and Stefanie Posavec’s “Left vs. Right,” Mike Wirth’s “How Our Laws Are Made,” a winning project in this year’s Design for America contest, Mark Luckie’s “Your Guide to the United States Senate Floor Procedures,” and Fastcase’s data visualization work with case law search results. It’s my understanding that WestlawNext was supposed to be integrating some type of date-range histogram as well for case research.

I suspect for some legal publishers it will be easy to dismiss the benefits (whether potential or real) of information design or data visualization as being either too Nolo [fn 2] or too expensive [fn 3] for experimentation. After all, the kind of people that would find Terry Colon’s well known legal immigration illustration useful are decidedly not lawyers and we don’t need to spend a lot of money to figure that out. Just give them what they want (electronic, search, portability) and don’t try to get creative about it. 

In the 90s, we were challenged to overcome our bias with media distinctions and become cyberliterate, that is, to understand how to use electronic and nonelectronic technologies to manage information effectively. Fifteen years or so later, we find ourselves thinking again about the future of legal content and media [fn 4], except now we are less concerned about information management than we are about understanding and making sense of everything we’ve found. To accomplish this, we’re going to have to start ignoring some boundaries.

So I say, welcome designers. Now, can you please show us something new?

____________________

1. Okay, perhaps not completely obvious. But a clicky-wheel imbued with color (representing data volume) combined with a broad legal taxonomy (e.g., pleadings, post-trial motions, mediation and arbitration) suggests that legal information—particularly analytical material—is ripe for a different type of navigational system. Particularly one that might allow us to access content in a way that brings greater order to the nonlinear aspects of the information. Or not. But that’s really the issue, for me anyway. [back]

2. This is a synonym for self-help publications. [back]

3. For these publishers, I would suggest trying out some of the more well-known crowdsourcing design sites on the Internets or contacting a local design school to see about sponsoring a class project. [back]

4. Actually, I think a lot of publishers are just thinking about how to preserve margins, distribution platforms, and DRM. Maybe XML and metadata too, but more on that margins thing. [back]

Much to the chagrin of the museum crowd, the last few years has seen a steady degradation of the term “curate.” A recent New York Times piece noted that the term “has become a fashionable code word among the aesthetically minded, who seem to paste it onto any activity that involves culling and selecting.” In this sense, everyone perhaps is a curator. 

Now, as stimulating as an etymological debate on the word “curate” undoubtedly would be (e.g., Florida still uses the phrase “probate curator”), I’m not really interested in doing it here. I raise the issue because I am attracted to its current mutation as it relates to Web 2.0 (as opposed, say, to music or fashion), and more specifically how it is and can be applied to analytical content.* And in this vein, one commentator has offered an observation:

We’ve just recently latched onto the idea of curation as though it were something new. The need for curation in the old media world wasn’t as obvious as in the internet world because, on the web, ‘everything carries the same weight’ and the average user has difficulty discerning good content from bad. … The buzz word ‘curation’ does carry with it some logic: As the sheer amount of information and content grows, consumers seek help parsing the good from the bad. And that’s where curation comes in. The amount of content available to consumers—much of it free of charge, but scattered across thousands of websites—is growing exponentially every day. At the same time, consumers are increasingly doing independent research and attempting on their own to source important information to support their increasingly complicated lives. Questions or information relating to healthcare, finances, education and leisure activities represent a small sample of the range of topics on which consumers look for accuracy and relevance, yet encounter an immense sea of specious or outdated content. In many ways, the web—in its entirety—is the new dictionary, directory or reference encyclopedia, but users with specific interests are increasingly beginning to understand they need to spend as much time validating what they find as they do consuming their research. In the old days, it was as simple as pulling the volume off the shelf and, while the web offers a depth and accuracy of content that far outstrips any from the old days, finding content of similar veracity can be a challenge.

In its broadest sense, there is plenty of legal-content curation going on. Slaw is a curator, with experts creating original content, link publishing, and editorializing on specific topics, cases, legislation, etc. And while this is important and useful, it is not what I consider to be a challenge to traditional legal publishing, which is something Slaw contributor Jordan Furlong suggested nearly four years ago that blogs might ascend to: 

Legal publishers need to understand that the number of competitors is not going to shrink—it’s going to multiply tenfold. And these competitors won’t have overhead, distribution, payroll or marketing costs to deal with—they’ll write when they want to, promote themselves by word of mouth, sell as much focused advertising as they like, and establish themselves as individual brand-name forces. Seth Godin is right: blogs are going to create thousands of expert media outlets with a total staff complement of one. It’s already started.

And indeed, since 2006 we have seen a rapid growth in legal media outlets, although I don’t think we could characterize all of them as “expert.” Regardless, thousands of lawyers and legal professionals are creating content, and more specifically, analytical material. Little of that content, however, is curated (i.e., evaluated, authenticated, and categorized). And if digital outlets are going to compete against traditional publishing companies, their collective analytical content—which is fast becoming substantial—will need to be managed.

Curating this growing body of analytical content will be difficult. It suggests a person-machine process of locating and separating good content from bad, and categorizing, verifying, authenticating, and editorializing that content. It will undoubtedly require the creation of a rich taxonomy to help organize and manage the content for later discovery, clean metadata, and a good search engine, and raises issues from data permanency to copyrights to brand dilution. It’s a mess. But a worthy one I think.

Last year, Seth Godin wrote a post on when the writer becomes the publisher. He concluded it with the following comment:

Mark this down as another job for the new economy: someone who can collate, amplify and leverage the work of writers and turn it into cash. I don't believe that there's one solution, not this time. But I'm confident that around the edges and deep into niches, there’s money being made.

I think if someone wants this badly enough, they will find a way to make it happen and monetize it. When that occurs, we’ll have a real challenge to the status quo. In the meantime, let’s hope the duopoly doesn’t get to it first.

______________________

* I would add that the theft of the word here is not, as the museum crowd might have you believe, an act of self-aggrandizement. If it were, I would have opted for something like, “connoisseuring” the legal web, instead.

When Project Cobalt broke, and I was lucky enough to receive an invitation to preview WestlawNext this past January, I thought I might have an opportunity to visit with Jackson about the project. After all, it represented a significant advancement in legal search, and who better to talk to about the brains behind the system? Unfortunately, that didn’t happen, and, like so many things, those questions were deferred. 

Until last week.

When you talk to an architect about a project, that conversation is going to be very different from the one you have with a person selling it. And so it was with Jackson. While most of the questions regarding WestlawNext and the search engine behind it, WestSearch, have been addressed by the online media, listening to Jackson talk about the project and some of the history behind it left me with a very different impression of the project’s importance to both Thomson Reuters and the profession as a whole. In the end, I look at it in two ways. First, WestSearch is to terms and connectors, what terms and connectors is to whole word searching in Acrobat. It’s that much more sophisticated. Second, it brings together both ontological and epistemological interpretations of the law and breathes new life into an old aphorism: the law is a seamless web. 

I debated for several days about how to write this piece, opting to reprint (rather than summarize) much of our conversation so you can get a sense of both the why and how of WestSearch in Jackson’s own words. We also had some time to touch on a couple of other subjects, namely state of the art in legal search and Steve Jobs, the answers to which I found enlightening, and uplifting. I hope you do as well.

On WestSearch

JW: In my review of WestlawNext, I described WestSearch as “intuitive global search,” which, as I understood it at the time, meant that it combined federated search and a new algorithm for determining relevancy. Is that too simplistic of a view? I suppose, in a way, I don’t really have a good sense of what is going on behind the scenes with WestlawNext.

PJ: You know, in a sense, I think that's normal. We use high-tech appliances all the time that we don't really understand. And one of the things I believe is that search should be an appliance, you know it should be something that you use without having to necessarily understand all of the ins and outs of how it works. And I actually made a distinction once in a paper between a tool and an appliance. A tool being something that requires a serious amount skill to use, requires some training and certification, and maybe even a certain amount of caution on somebody's part. Whereas an appliance you just assume that none of those things are required. You don't have to be trained to use a hairdryer for example. And I think that is the direction that the power tools of our industry are going, in a sense they are almost ceasing to be tools and are becoming appliances. 

JW: Much like the iPhone and the iPad.

PJ: Absolutely, the iPad is the perfect example of that because there is no manual, yet a three-year old can pick it up, poke around on it, and make things happen. And I think that is what is so magical about it, to use Steve Jobs' word. With WestSearch, we wanted to come up with a better search experience for our users, who are primarily legal researchers. We really felt the time was right to take legal search to another level, and I think one of the things about being in business is that you don't want to be behind the market, yet at the same time you don’t necessarily want to be massively ahead of the market in terms of giving people whiz-bang technology that they're not really ready for. I think in the case of legal research, a large portion of the market was ready for something new and was willing to try something different.

JW: Mike Dahn (pdf link), Vice President of New Product Development, described it as "ending the tyranny of the keyword."

PJ: Yes, I think that is entirely accurate. I think that legal search, as it has been practiced on online databases, has really required the user to play a kind of guessing game that says "Oh, I’m interested in such and such a topic, what words would bring documents back having that topic?" You know, in some ways it is like a game. And I think like any game it is a hit and miss process and the longer you play the game, the better you get at it. But the game leaves quite a lot to chance. So that was the state of play prior to February 10th, when WestlawNext was launched. I think the state of play now is different. I think we really baked two important new sources of knowledge into WestSearch. One was taking our editorial value addition and really all the metadata we generate around legal documents, whether by human editors or whether by some computational process. We took that metadata and baked it into the search algorithm itself. Previously, all that metadata was there, but it was really there for navigational purposes. It was there for the searcher to consume but it wasn't actually informing the search engine.

JW: So all of the tagged data on Westlaw.com, specifically before WestSearch, was principally used for navigating through documents on the screen? That’s it?

PJ: Yes. So that was one important knowledge source that wasn't available to the search engine. The second one was the aggregate user behavior, which obviously includes click-throughs, and includes more than that because we offer the user a pretty rich experience on Westlaw. They can print documents, mail them to themselves, and they can run KeyCite over them. There's a lot of different things they can do that indicate they are interested in a document. And of course, we have for many years, collected queries and saved them in query logs. We've done that in the past primarily for quality control purposes and for helping people who call in with search problems, but we've never before used that query log for anything computational. Whereas now, given the aggregated user behavior, we're able to get a pretty good grasp of what kinds of things users are searching for and what kinds of things users find and regard as valuable in that search context.

{Note: This user behavior is also reflected in the phrase “meaningful interactions.”} 

JW: Does WestlawNext’s user interface end up creating more avenues for discovering different types of user-generated metadata? For example, WestlawNext now allows the user to put documents into folders, to share those documents, to tag documents as “looked at,” copy and paste with a reference, and so forth.

PJ: We haven't deliberately built those kinds of mechanisms into the system in the sense that we don't make people jump through hoops just so we can collect data about them. I know there is a school of thought around that, that you should design your interface in such a way that you collect the maximum amount of data from your users by making them click on this or click on that. We didn't deliberately do that. The functionalities in the WestlawNext UI are there because they are convenient to the user.

On ResultsPlus

JW: I think many readers would like to know whether ResultsPlus is gone?

PJ: No. ResultsPlus is still there on Westlaw.com. And of course, you can look at ResultsPlus as being a bit of WestlawNext that was sort of smuggled into Westlaw.com in the sense that ResultsPlus was a glimpse into the future of what we could do when we started using these new technologies. But there are certainly now ResultsPlus-style processes that are now first-class members of WestlawNext, meaning sort of the best of ResultsPlus is now baked into to WestlawNext, along with other stuff.

JW: In WestlawNext, there are three sort of primary visual collections. On the left-hand side, I have a table of contents that includes the universe of databases I’m searching across. In the middle are the principal results. And on the right-hand side, I have what appear to be related sources. Now, if I want to dig deeper, supposedly, I can look at these right-hand sources. Is that information different than what is collected on the left-hand side, or is it just the same information presented in a different way?

PJ: It's a little different in the sense that what we wanted to do was provide people with a means to still discover things on their own. Search is good and we definitely want to improve the search experience, but at the same time we wanted people to have the liberty to wander off the beaten path and create their own browsing experience and discover things on their own. And so, typically when you're looking at a document and things are on the right-hand side, these tend to be things that we consider to be related documents that you may or may not want to explore. But we always like to present people with a penumbra of related documents depending on what they are currently looking at. And then people can choose to explore those additional paths or not. It is more to encourage browsing.

On Relevancy

JW: How do you define, in the context of WestSearch, relevancy? Is it just that at some point relevancy is determined by the fewest number of iterations to arrive at an answer, as determined by the user of course?

PJ: Not really. We try to do two things at the same time. There is relevancy and then there is importance. I think relevancy is really a textual thing. It's really sort of a computation that says out of all the documents that are invoked by a combination of this language and all the metadata we have associated with the documents in our store, these documents appear to be the ones about the same legal issue. And so, early in the Westlaw search process we do actually try and identify the legal issue or issues behind the query. And this is our first kind of step away from keyword approach. So relevancy is now relevant not to the query but to the issues that we think are associated with that query. And once you've gotten away from those keywords, you can have a much richer notion of relevancy.

JW: Right, because relevancy up to that point was determined based on the frequency of the terms, co-occurrence, proximity, and so forth. I wonder, though, whether the vast majority of your users place a greater emphasis on relevancy than say, recall?

PJ: I don't think that's true. I think people do want high recall and want to go into court feeling that they've left no stone unturned. And I think that is one of the huge differences between legal search and say, for example, searching on the web. People typically do want to feel that they've found everything that is relevant and important. I think the way we thought about this when we were designing the system is that, we get higher recall by leveraging all of our metadata. And so you don't have to say the magic words in the right combination. Using metadata, we will find the relevant documents whether they contain the magic words or not. And in doing that you are throwing the doors open very wide. You're creating now a much broader search than you would previously when you were just restricted to keyword occurrences. So in a sense, to counter that, or at least to make sure that the user still has a good experience, we use the click through data to refine and cull that much larger search result, so that we are only bringing back what we think are the important documents. The documents that are important to cite and documents that other people have found useful. In a sense, the metadata gets you the recall and the user data gets you the precision.

JW: And that user data, something that you have referred to as the "daily implicit feedback mechanism," you're folding that back in week after week, or is that something that is being done on the fly all the time?

PJ: I think the important thing to understand at this early stage is that user data was derived from Westlaw.com, and not WestlawNext. Obviously WestlawNext was new, so there was no user data. In the literature, they call this the cold-start problem. It's like, if you're Amazon, and you want to make recommendations to people, of course, someone has to buy something before you can recommend anything to someone else. And in fact, you have to have quite a lot of that data before those recommendations start to make sense. So we have a bit of a cold start problem, and we had to use click-through data from Westlaw.com, which is fine because it is the same document collections and people are searching for the same kinds of things. Once WestlawNext has been running for a few months, we will switch that over and now our user data will be derived from WestlawNext itself.

JW: Do you anticipate getting more accurate results.

PJ: We think it will. We think people will be finding more of the good stuff faster.

JW: And I guess with the federated search too, there is the opportunity of finding everything.

PJ: Yes.

JW: Which to me was one of the more significant advancements as far as Westlaw was concerned, was just being able to show you everything.

PJ: That's right. So you won't just be now reviewing and clicking on results from either the specific database you are in or ResultsPlus. You'll be really working with a much larger result set.

JW: The problem of knowing where to find something in a database was significant for me as a researcher. I would assume the same holds true for most lawyers, who typically aren't power searchers.

PJ: This was a matter of some concern to us, and we had been thinking about that problem for some time, and the answer wasn't simply to make it a global search and throw the doors open to every database because I think if we had done that simply using keyword searching, I think we would have made the search experience worse, not better.

On Analytical Content

JW: I am curious about analytical content. Do you view analytical content more as metadata for primary law, or do they serve as metadata for each other? I ask because I create analytical content, and so I have a particular fondness for using analytical content first to find an answer. It is frustrating to hear people talk about analytical content, not as the gateway to primary law, but as the stuff underneath that helps you bring all that primary law together.

PJ: That’s an interesting question. We built ResultsPlus because we felt that people were neglecting analytical sources. I think that the provision of case law searching in the 80s, and perhaps earlier, really changed the methodology of legal research to some extent. It certainly made fishing expeditions into case law a lot easier than you could have ever done it by following a paper trail. I think that ResultsPlus was meant to encourage the use of analytical resources as an entry point into an area, particularly an area that you might not be familiar with. So I think we were promoting analytical material in ResultsPlus as being, not a second class citizen, but something that was worthwhile in its own right. I think in WestlawNext that we've sort of continued that philosophy, so that regardless of what you are searching for, if there is analytical material that's on that topic of issue that we think is relevant, we do present that.

On Snippets

JW: How much do snippets affect WestSearch? I've got to imagine that no matter how good an algorithm is, or no matter how good a process is—because WestSearch is more of a process of both people and machines—but if that information doesn't provide enough information on the screen when I'm scrolling through an answer, that sort of meaningful interaction, that click through, is sort of lost at that point. Did you guys give a lot of consideration to the level of information that you provide on the screen, or did you have a good sense from user experience already that we only need to show, say 100 terms on the page.

PJ: We gave a lot of thought to the snippets. We have a couple of people in my group who are experts in automatic summarization, and they had already sort of cut their teeth on ResultsPlus. If you think about Results Plus it was a document recommendation system, and in some of those instances, say when we were recommending a brief, it doesn't help the user to just show the title because the title doesn't tell you anything about what's in the brief. So, it was at that point when we loaded briefs to ResultsPlus that we realized that we had to come up with snippets that would allow the user to decide there and then whether or not the document was relevant. And the way we did that was to make the snippet that was generated sensitive to the query. So instead of just storing a snippet with the document, we would generate the snippet dynamically based upon the query. And we took that same philosophy and that same technology into WestlawNext. That sort of query sensitive summarization is really what the snippets are about. And we think they are very important.

JW: They are important, particularly when you take the next step and eliminate sort of the irrelevant information from the snippet, say a full case citation because there is only so much space, real estate on the screen, when you present that. And particularly for ResultsPlus when you are having to put something in such a narrow text.

PJ: That's a good point. ResultsPlus taught us the value screen real estate in a way that perhaps nothing had done before. It's very interesting, when you give people recommendations, and you get something like five recommendations, they only really look at the top two. And so, the ranking on the recommendations has got to be really, really good. And I think that was another learning experience for us, and a learning we carried over into WestlawNext, that screen real estate is very precious and the ranking is just extremely important.

On State of the Art

JW: I was curious about the current state of the art in legal search. In 2007, you raised the issue that extraction technology required information to be explicitly stated in the text; it couldn’t be implied. You used an example of when a debtor moves to convert from Chapter 7 to Chapter 13, and a creditor files a complaint to oppose it, the judge decides the case by “finding for the plaintiff,” which really means the conversion was denied because the plaintiff is the creditor and the defendant is the debtor. Are we any closer to achieving the inferential capability necessary to extract this kind of data? 

PJ: I think it is a very hard problem. I think that in theory you could sit down and build a very specially crafted solution for that particular kind of inference. It's very hard to see how you do that in a way that would be scalable or would apply to similar kinds of reasoning problems. With the right about of duct tape you can solve all of these narrow problems. You can always come up with some sort of algorithm or device or whatever, but to come up with a more general solution that you could apply to different kinds of situations, even just within a case, is much more difficult. For example, when we worked on Litigation Monitor, we wrote a program that went through the front matter in a case and figured out who the plaintiffs were, who the defendant's were, what attorney and law firms were represented, whom they were representing, and what was the case was about. But that was a very specially crafted piece of code. There's nothing in that code that would help you solve an analogous inference problem either with a different kind of document with a different kind of format or some other kind of reasoning problem like the one you described about bankruptcy.

JW: At some point the bankruptcy problem is probably solved more by the web of metadata that might go to inform that type of opinion I suppose. 

PJ: Either that or you've got to have a script that's almost like a little movie script that says here's how bankruptcy hearings normally go. The creditor is trying to pay as little as possible so they are going to try and gravitate towards this end of the spectrum, and the debtors are going to want to push things in the opposite direction, and these are the kinds of motions that get filed, and when these motions are disposed of in one way or another that means that this person has won, and this person has lost, and so on. There almost has to be a movie script that says how these kinds of cases play out. And imagine doing that for all the different kinds of cases. It wouldn't be very pretty. To me, what this speaks to is the continuing value of our editorial resources because one of the things I've argued for in many of the papers written is getting the right allocation of function between person and machine that makes for a great person-machine system. I think there are many people out there that want to automate everything and then on the other hand there are those out there that say a human has to touch everything, and I think they are both wrong. We are at that stage now where you can build a very effective person-machine system to do a lot of very useful information tasks.

{Note: Jackson’s opinion on value of the person-machine combination reminded me of a similar observation that Garry Kasparov made in a recent piece in the New York Times Review of Books on “freestyle” chess play.}

On Steve Jobs

JW: I know you are a fan of Steve Jobs, and rather unapologetic about it if I recall your last post about D8. What is Jobs doing now, in your opinion, if anything, that is having an effect on legal practice? Or legal research perhaps.

PJ: I don't think he is doing anything that directly affects legal research. But I think this business of somehow creating devices that are incredibly convenient and very easy to use, and have a long battery life and are a pleasure to handle and to work with — I just think it sets the bar pretty high for everybody else. In the past, I think we just assumed that using a computer was really a kind of drudgery and required you to sit at a desk and to work on your carpel tunnel syndrome. And I think that things like the iPad show that's not the case, the fact that usability is now finally becoming a reality. In a piece I just wrote, I asked “what was it at D8 that really grabbed me, and was there any sort of new technological development?” And I think the answer was "no." But I think what was innovative for me at D8 was the fact that there were so many products showcased where the human was really in the center of the story. Whether it was James Cameron talking about Avatar and the fact that you still need actors and you still need to connect with the emotions of your audience. Whether it was Microsoft showing off its new game controller which doesn't require any gadgets, it just looks at your limbs and how they are disposed and interprets those things as signals, and you're not even wearing a device of any kind. Or whether it's the iPad itself, that can be used by a three-year old. What struck me very forcibly was this business about putting the human back center stage. This is something that is finally happening. Academics have been writing about this since the 80s; user-centered system design was a concept that came out of the early 80s, and it's taken 25 years to get to a point where we can at least argue that we've made some progress. It's really quite amazing.

JW: This kind of conceptual thinking, do you think it will compel users to look at their computers differently, sort of like "why can't I do this on my computer?” Or mentally, are they just going to continue to separate it out?

PJ: No, I think it raises the bar on everybody. And this is why we brought out WestlawNext for the iPad, we just felt like we had to do it. I think if you look at the history of West, and I like to think of it as a layer cake, there are sort of strata of innovation. We started with data, we built KeyCite on top of that, we built document categorization on top of that, we built document recommendation on top of that, and we used all of that to revolutionize search. I think these kinds of investments are those kinds of investments we have to make and I think everyone in our business understands that. I get very excited when somebody like Steve Jobs, who is out in the consumer space, goes and does something wonderful because it raises the bar for us, it inspires us to do more. I think it is an endless task because you can always make things better. But we're sort of up for that task, and I think that's what my group is all about. That's why we have an R&D group. I love it when you see these kinds of advances in the outside world and they present us with a challenge. I think it is very exciting, and in a sense, our industry is going through a very exciting time. I've been in the computing business for 30 years, and I don't think I've ever seen the pace of change we are seeing now. Everybody says that, but it is really true. And it's not just in processors and bandwidth and all the numbers people like to cite. It's really around creativity and imagination — people are bringing to new forms of media, entertainment, information, social constructs. It's really pretty amazing.

* According to a recent article, Jackson is an expert in “information retrieval (search), document categorization (automated indexing of content), machine learning (the design of algorithms that enable software to learn from and make decisions based on data patterns), and natural language processing (in which software can summarize content, convert computer language into human language and vice versa, or make a computer speak with human tones).” [back]

This past March, I was fortunate to get some face time with one of the senior directors for Thomson Reuters' new Print and Advanced Media division to talk about business. Among the many topics to be discussed was that particularly irksome one, the future of print. When we kicked off our conversation, the director acknowledged that she had had some feelings of trepidation when she signed on to help run a division that seemingly—excuse the pun—has a limited shelf life.

I understood where she was coming from, particularly since I'd just seen Thomson Reuters' 2009 financial report released the week before showing a year-over-year decline in print and non-subscription products. Although her's seemed a foreboding job, I couldn't help but think about the possibilities of working with the content of over 6,000 titles. That had to be exciting.

It wasn't until after we had parted ways that it hit me—

Wait. Why is there a separate print and advanced media division?

The question is rhetorical of course. I know why there is such a division, but just saying it suggests a different and more interesting question, namely, should there even be such a division?

Historically, it seems that the distribution of legal content has been viewed through two separate lenses: OFFLINE and ONLINE services.

OFFLINE services have included a publisher's catalog of titles (conceived digitally, born as paper) and distribution platforms—both analog and digital—for those titles: print, microforms, floppy disks, CD-ROM, DVD, and, more recently, the Internets (e.g., "interactive books," pdf downloads). ONLINE services have included a publisher's databases (f/k/a "digital libraries") of public and private data and distribution platforms for those databases: Westlaw, Lexis-Nexis, Bloomberg Law, Loislaw, etc. Each service—OFFLINE and ONLINE—competes with the other for ownership of eyeballs, and in many cases, share them.

Before 2000, this dichotomy seemed reasonable because access to content was limited to print and a desktop or laptop computer. But even by then we were beginning to see the signs of new access modes and publishing formats, specifically through eReaders. Enter 2007, and we are suddenly introduced to three revolutionary access (and distro) channels: the iPhone, the Kindle, and the web-enabled netbook. Looking back on it, the distinction between traditional OFFLINE and ONLINE services now seems oddly antiquated. And it should seem that way because everything is digital, everything is online, and everything is connected.

As to the issue of whether there should be a separate print division, I would argue that there is no longer a need for "print" or "advanced media" or any other moniker that seeks to divide digital content between seemingly (but not) competing distribution platforms. There is no longer a need for OFFLINE and ONLINE. Westlaw (or Lexis) is a publishing platform and it is online, in the cloud. It should give you content anyway you like (whole or mashed) and on any web-enabled device. Trying to maintain different divisions with competing interests for the same digital content just seems counterintuitive at this point.

So along these lines, I've been thinking that when it comes to modern legal publishing, there should be only two primary divisions: one for CONTENT and the other for CONTAINERS.

The CONTENT division would be responsible for creating and managing all public and private content. This entails, at the very least, defining appropriate XML schema and workflows, managing metadata and content as a single object, ensuring accuracy and guaranteeing reliability of all content, and expanding the knowledge base. The individuals in this division are your information architects and the ones that provide customers with the answers.

The CONTAINERS [fn*] division would be responsible for every format and distribution channel used to deliver content. This would include all existing and future file formats (e.g., PDF, ePub, Mobi, AZW, HTML 5) and channels (e.g., print, CD-ROM, Web, mobile apps, cloud apps). The division's principle responsibilities would involve the design, construction, implementation, and management of the various formats and distribution channels. One of the things I'm concerned about here is that the user experience for particular content is both maximized and consistent across all formats and channels, something we aren't achieving now. [fn**] The individuals in this division are your designers and the ones that ensure customers can find the answers.

In the trade world, there is a debate that many are currently having concerning the adoption of XML schemas, XML workflow, and content management systems. It is a "convert or perish" discussion. Although this is not our battle (as most legal publishers saw the need to convert some time ago), the appreciation for developing and managing content separately from publishing to multiple platforms is. The old dichotomy of OFFLINE and ONLINE no longer works. The longer we rely on this distinction, the greater risk we face of extinction.

__________

[fn*] For more on the idea of containers and their relationship to content, I suggest reading the essay Books in the Age of the iPad by self-proclaimed digital hobo Craig Mod. You will probably be hearing this term more often throughout the year, and in fact, Bill Pollack of ALM has already used it.

[fn**] Black's Law Dictionary is an interesting case study. Throughout my career, I've had access to it in print and on Westlaw, two very different user experiences and two very different divisions. In 2006, a "standalone" digital edition of the product was released that added a number of useful enhancements, such as integrating terms into Word or WordPerfect spell checkers and providing audio pronunciations. It appeared to me to be a step forward to interactive content and a way to combat the Internet-as-a-dictionary problem. But the product wasn't an "electronic book," which many believed it was. Instead, it was a three-year subscription to access the web version through toolbars integrated in Word, WordPerfect, and web browsers. In other words, it faked being an electronic book and just gave you access to the Westlaw version. Fast forward to 2009, West releases an iPhone (and now iPad) app for the dictionary, which I think now realizes much of the book's digital potential that was lost in the earlier electronic edition. As we move through 2010, I can't help but wonder how the content itself could be enhanced in an HTML 5 site that is "networked" with the Web.