Physics and the Strategic Reinvention of the Legal Profession

F=ma. Sir Isaac Newton, in his second law of motion, tells us why it is so hard to get the legal profession to adopt new technology.

Newton’s second law says that for any force you apply to an object, the amount of acceleration you get is inversely proportional to the mass of that object. That means that the larger the object is, the smaller the acceleration you will get (for a given force). This is called “inertia”.

Lawyers have a lot of mass. I don’t mean that they are physically massive people; rather I mean that, as a body of people, they are formidable. There are a lot of them. They are educated and opinionated. In Canada, they have a title role in the adversarial system of justice. They have developed rules that direct court process and that guide their behavior in and out of court. Let us agree, for the purposes of this paper, that they are massive.

Because the legal profession is massive (perhaps more massive than was expected), we have to apply a tremendous amount of force to get even a little bit of acceleration in a given direction – for example, in the direction of adopting new technology. Furthermore, only “net” force matters. There are many forces acting on the legal profession and lawyers. The simple fear of technology may push a lawyer directly away from adopting new technologies, but many other forces are at work in the practice of law. Cost and time concerns impact lawyers in different ways, but some proportion of these concerns exert a force away from buying and learning new tech. To get acceleration and change, we must ensure that there is a very large net force pushing lawyers in the direction of using technology.

Let us turn to a real life example. West Moberly et. al. v Her Majesty the Queen et. al., SCBC Action No. 05 3802, Victoria Registry, (West Moberly) is a trial being run on a brand new electronic trial platform. The parties, and the court itself, accelerated from a standstill to running the trial on this platform. How did that happen?

First, the judge in West Moberly supports technology in the courtroom. One should not underestimate the force of a judge telling counsel that a “wall of binders” will not be welcome in court. Having a judge who is pro-technology is a significant force in the right direction.

Second, one party was prepared to exert a constant force over a period of months towards running the trial in an electronic environment. Hardware was priced, purchased, set up and tested. Courtrooms were measured, assessed in schematic drawings and determined to be suitably sized to hold all counsel and the hardware itself. All parties selected documents for the common book, found the common book contained 3376 documents filling over 30,000 pages and decided to generate the common book electronically (to avoid the “wall of binders”). Protocols for entering exhibits were set and the case began. A constant, large force caused acceleration.

Third, forces going in the wrong direction were minimized. The easiest way to do this was to keep the electronic trial platform as simple as possible. Currently, a monitor sits on each table (i.e the tables for counsel, the judge, the court reporters and the witness) and all monitors are linked to a single laptop. Anything viewed on that laptop (the “Presentation Laptop”) is also viewed on each of the monitors. The electronic Common Book (organized folders of 3376 PDF’ed documents) is loaded onto the Presentation Laptop. When a presenting party wishes to draw the court’s attention to a document, the party calls the document up on the Presentation Laptop and the document is instantly visible on the monitors in front of all the other parties, the judge, the court reporters and the witness. All parties and the court were given an introduction to the platform and, for the first week, the person who built the platform was constantly present in court to head off any negative force that might have been created by anyone not being able to immediately find the document they wanted on the Presentation Laptop.

The only piece of “extra” technology is the large “Smartboard” in the courtroom. Like the monitors, it is connected to the Presentation Laptop. When a document is brought up on the Presentation Laptop, it also appears on the Smartboard. However, once the document is on the Smartboard screen, the Smartboard functions like a giant “tablet”. The user has the ability to manipulate the image by zooming in and out, and can write text directly onto the image. At the same time, any zooming in or writing appears on the monitors directly before all counsel, the judge, and the court reporters.

While the constituent parts are simple and generic, the resulting electronic trial platform is powerful. It has already saved the parties paper and space. West Moberly requires eleven copies of the common book of documents. Each paper copy of the common book would have been 30,000 pages of paper, filling – and I am being conservative here – 100 binders with paper. Eleven copies of the paper common book would have put 1,100 binders into the courtroom: literally, a wall of binders.

Furthermore, the electronic trial platform has given the parties an effective way to manipulate and discuss the many maps in the case. West Moberly is a dispute over the boundary of a treaty signed in 1899. Hundreds of historic, hand-drawn, oversized maps will be reviewed. The Smartboard makes it possible for everyone to view the same map the same time, instantly. It also makes it easy for parties to zoom in on a particular part of a map for further discussion. It is even possible, using just your finger, to highlight an area of the map under discussion, and your highlighted area will show up on the screens in front of everyone else in the room. The majority of the parties used the Smartboard in their opening statements. Once you have used a Smartboard to discuss and review a map, it is hard to imagine not using that particular piece of technology.

And this is the good news: p=mv. Momentum (“p”) is equal to mass multiplied by velocity. A very big truck, even if it is moving forward at a very slow speed, is very hard to stop. Since we have already established that lawyers have a lot of mass, if we can get them to move with even a very little bit of speed, then they will have a lot of momentum. Small bumps in their way will be driven over. Forces trying to pull them back will be brushed aside. They will continue to go forward. The good news is that, even if we can manage to get the legal profession to adopt only a little bit of technology, then change is inevitable.

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[1] This paper is written solely for the purpose of generating a friendly discussion in Discussion Track 4 of the 2015 Pacific Legal Technology Conference, titled “The Strategic Reinvention of the Law Firm: People, Processes, Technology and Change”.

[2] Kate Gower works as a contract lawyer, and is currently working with Devlin Gailus Westaway in Victoria, BC on West Moberly et. al. v Her Majesty the Queen et. al., SCBC Action No. 05 3802, Victoria Registry. She holds a Bachelor of Science, Master of Arts (Journalism) and Juris Doctor.