Business law formats: tomorrow

Posted on Wednesday, June 26, 2013, by Noric Dilanchian

business-law-formats-tomorrowAs has often been observed since the early 1980s, computers and word processors have deepened the addiction of lawyers to text. Court decisions, contracts and legislation have all grown in their typical number of pages. Frankly, text is now so out of control in its sheer volume in law that business lawyers don't know business law. There's too much to read. Rivers of words issue from lawyers in numerous parliaments, courts, tribunals, and international bodies.

Senior business lawyers admit these thoughts to me in private, so I know I'm not alone, and the problem is real though it is the rare lawyer that writes about it. Before anyone claims that the easy solution is more specialisation for business lawyers, I'd like to race in and note that more and more specialisation in my experience can contribute to business law specialists not understanding each other and their common matter. It is a legal Tower of Babel situation, a recipe for miscommunication and misdiagnosis of problems.

No, there is a problem. Today the Australian legal system and its lead participants are addicted to words with too few openly stating the necessity for tools or incentives to simplify or shorten legal instruments.

That's the bad news. The good news is that necessity is once again the mother of invention and so change and the pace of it may soon escalate.

Ironically the very tools which have made the current predicament worse, software and computers, are likely to be the tools which might resolve at least some of the aggravation. Believe me, many business lawyers and non-lawyers alike get very aggravated indeed when they hear the modern populist war cry - "There ought to be a law about this!". Please, please, think again they respond, surely there's another way to fix the problem.

And with the laws being made today it seems heretical to many lawyers that anyone could seriously recommend, as Annexium dones, using graphics, tables and spreadsheets in Acts of parliament (ie statutes) and court decisions, let alone software, so as to simplify information and save time.

Yet in their court decision writing judges have changed their writing styles. In many jurisdictions they now use modern writing styles and sub-headings in their judgments, though you still need a quiet space and not an open plan office to read and follow legal reasoning.

As for legislation, hypertext and explanatory documents are now commonly used to elucidate Acts and regulations.

Software maketh the law

legal business modelsExtraordinary changes are now evident in IT's application to business law. They go beyond elearning, online databases, wired courtrooms, electronic filing of compliance and litigation documents, online deal rooms, document automation, using blogware to negotiate contracts, and other developments since computers became standard on lawyer desktops, a development in various countries since about the mid-1990s.

The law is now recorded often in software. Your proof of identity at airports, your rights of access to electronic banking, your right to use non-pirate software, your right to drive a car provided you keep within speed limits are all instances where software has become a medium for the application of the legal message (eg the legal right or the legal obligation on you).

You are denied access in all instances because the software refuses you entry. Yes there is probably some contract, legal document or legislation in which the right or obligation is noted in text; but the point is that there is a machine-read interpretation or application of that text.

Such developments underline the questions of what is law and what ways of dispensing it are acceptable.

"The change I have sought to better understand with this post has enormous implications for how law is written, programmed, tested,  taught, interpreted, applied and assessed."

The change I have sought to better understand with this post has enormous implications for how law is written, programmed, tested, taught, interpreted, applied and assessed.

More and more if lawyers (a group that across many jurisdictions includes many parliamentarians and most judges) will be out of a job if they don't understand how software works.

"I'll have my avatar talk to your avatar"

Change comes slowly in law. In this and many other senses, law is a sedimentary field of knowledge. If lawyers are to better manage their addiction to verbal and text communication, they will need help. University law courses need to change, lawyers need to be trained differently, and lawyers will need the next level of seminars specifically on the role of software in making and applying law. If the change is significant then the silo architecture currently dominating the education, training, regulation and practice of lawyers will require surgery.

As a view into one experiment in legal education Harvard Law School launched CyberOne in 2006. The primary instructor was Professor Charles Nesson. CyberOne describes itself as a law and technology academy featuring use of blogs, wikis, Internet videos, Scratch, Moodle and Second Life.

Post a Comment

* Indicates a required field.

*

*

Captcha Image