Digital Lawyering

Technology and Legal Practice in the 21st Century

Emma Jones, Francine Ryan, Ann Thanaraj, Terry Wong

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000476330
• Edition: 1
• Topic: Law
• Subtopic: Science & Technology Law
• Index: Law

In today's rapidly changing legal landscape, becoming a digital lawyer is vital to success within the legal profession. This textbook provides an accessible and thorough introduction to digital lawyering, present and future, and a toolkit for gaining the key attributes and skills required to utilise technology within legal practice effectively.

Digital technologies have already begun a radical transformation of the legal profession and the justice system. Digital Lawyering introduces students to all key topics, from the role of blockchain to the use of digital evidence in courtrooms, supported by contemporary case studies and integrated, interactive activities. The book considers specific forms of technology, such as Big Data, analytics and artificial intelligence, but also broader issues including regulation, privacy and ethics. It encourages students to explore the impact of digital lawyering upon professional identity, and to consider the emerging skills and competencies employers now require. Using this textbook will allow students to identify, discuss and reflect on emerging issues and trends within digital lawyering in a critical and informed manner, drawing on both its theoretical basis and accounts of its use in legal practice.

Digital Lawyering is ideal for use as a main textbook on modules focused on technology and law, and as a supplementary textbook on modules covering lawyering and legal skills more generally.

1

INTRODUCTION

DEFINING DIGITAL LAWYERING

Emma Jones, Francine Ryan, Ann Thanaraj and Terry Wong

DOI: 10.4324/9780429298219-1

WELCOME TO DIGITAL LAWYERING IN THE 21ST CENTURY

This textbook is designed to introduce you to the dynamic, innovative, complex and fascinating world of digital lawyering—in other words, the use of digital technology within the legal profession. It will give you the opportunity to understand what digital lawyering is, how it has developed and what role it now plays within legal practice and the delivery of legal services. It will also encourage you to reflect upon your own knowledge and skills and how these can be applied within the digital world. Mind Map 1.1 shows the key topics we will cover, using the title of each chapter.

Mind Map 1.1 Topics of chapters

In exploring digital lawyering, this textbook will take a range of perspectives and approaches, drawing on the viewpoints of its four authors (all of whom wrote this chapter and the conclusion). This includes:

• A legal perspective—looking at how laws and regulations have had to, or may have to, adapt to reflect the changes in digital technology and the legal profession.
• A technical perspective—looking at the functions and capabilities of technology.
• A sociological perspective—looking at the impact digital lawyering has upon the profession and wider society.
• An educational and reflective perspective—encouraging you to reflect upon your digital and educational experiences and your skills development going forward.

As the four authors, we each have different but equally valuable perspectives, which we will introduce you to later in this chapter. That is the reason that the authors names are strictly in alphabetical order on the cover!

In this chapter, we will begin by thinking about the role of digital technology within society, definitions of digital technology and digital lawyering, and the relevance of ethics and legal education. We will then move on to explain the way the rest of this book will work. The chapter will finish by explaining the authors’ journeys into and within digital lawyering. This will help put each of the chapters we have written in context as you work through the rest of the textbook. Let us begin by considering the role of technology within society.

TECHNOLOGY AND SOCIETY

Technology plays a critical role in shaping our society. It impacts on the way individuals communicate, interact and think. The advancement of technology has had both positive and negative effects on our lives. It is hard to imagine our existence without access to the Internet and smartphones, but we need to be aware of the pervasive effect of technology on our lives too. Technology brings opportunities for innovation and change, but it also brings risk, distrust and concern. Throughout this textbook, it is important to consider to what extent technological development is a good thing for our society and for our legal system. This may be a good opportunity for you to reflect on your own experiences of technology to help you understand in more depth the issues raised in this textbook.

Technology is now commonplace in our lives. According to Statista, between 2016 and 2021 the number of global smartphone users increased by 40%, and by 2023 mobile devices users will increase to 7.33 billion.¹ The highest number of smartphone users are in China, the United States and India. Social media reach and adoption is growing in popularity too. Two billion users use WhatsApp monthly, and 53.6% of the world’s population uses social media.² More people are accessing the Internet via smartphones and using tablets for activities such as online shopping, watching TV and films, and engaging in social media. Social media, email and apps are used by governments to engage with their citizens. We now have online services for many aspects of our lives. If you want to apply for a driving licence, file your taxes or start divorce proceedings, all of this can be done online. The United Nations states that there has been a “sharp rise in the number of countries that are using e-government to provide public services online through one-stop-platforms”.³

1 Statista, ‘Number of Smartphone Users Worldwide from 2016 to 2023’ (undated) <https://www.statista.com/statistics/330695/number-of-smartphone-users-worldwide/> accessed 12 May 2021. 2 Statista, ‘Social Media—Statistics and Facts’ (undated) <https://www.statista.com/topics/1164/social-networks/#dossierSummary> accessed 12 May 2021. 3 United Nations, ‘UN E-Government Survey 2016’ (2016) <https://publicadministration.un.org/egovkb/en-us/reports/un-e-government-survey-2016> accessed 12 May 2021.

In terms of the workplace, in 2014 the UK House of Lords Select Committee on Digital Skills urged that, for the country to stay competitive globally, “the UK must ensure it has the necessary pool of (highly) digitally skilled graduates and others … to support and drive research and innovation throughout the whole economy”.⁴ A wider initiative by the European Commission has given priority to digital literacy as a major component of the EU’s Europe 2020 strategic plan through its Digital Agenda for Europe, defining it in terms of “the skills required to achieve digital competence, the confident and critical use of ICT for work, leisure, learning and communication”.⁵ The effective and critical use of technology is “so fundamental that, like writing once did, it permeates all forms of communication, presentation and reference”.⁶ The term “Fourth Industrial Revolution” is now commonly used to refer to the way in which new technologies are currently reshaping industries, professions and society generally.

4 House of Lords Select Committee on Digital Skills, Make or Break: The UK’s Digital Future (February 2015), Chapter 3. 5 European Parliament, ‘Digital Agenda For Europe’ (2008) <https://www.europarl.europa.eu/registre/docs_autres_institutions/commission_europeenne/sec/2008/2629/COM_SEC(2008)2629_EN.pdf>; <https://ec.europa.eu/digital-single-market/en/europe-2020-strategy> 6 Jisc, ‘Developing Digital Literacies’ (2014).

Technology has become an integral part of our working lives and it features in many jobs. Digital technologies enabled many people to work from home during the COVID-19 pandemic, which allowed many businesses to keep functioning. The pandemic demonstrated that flexible working is possible and that productivity is not lost. As a result, we are seeing significant shifts in patterns of work, with flexible working becoming commonplace and workers splitting their time between home and the office. Companies are readjusting to new ways of working, and this is going to change how businesses operate and evolve in the future. All this demonstrates that technology is now firmly embedded in our lives.

However, not everyone is able to participate in the digital world. Many people struggle to access and use the Internet. There are many parts of our society without the skills, knowledge or access to be able to engage effectively with technology. Economically disadvantaged groups cannot afford a computer or a smartphone or the cost of mobile data or Wi-Fi. It is estimated that there are six million people in the UK who are classified as socially and digitally excluded.⁷ Low levels of literacy make engaging online very challenging. A lack of confidence or people to ask for help makes many people reluctant to use technology. The global digital divide is even greater, as half of the world’s population does not have access to the Internet.⁸ Policies on investment infrastructure, improved regulation and skills development are required to close the digital divide, because if not addressed it will lead to further inequality and exclusion of marginalised and vulnerable groups.

7 Royal Geographical Society, ‘Digital Divide in the UK’ (Royal Geographical Society, n.d.) <https://21stcenturychallenges.org/what-is-the-digital-divide/> accessed 28 April 2021. 8 World Bank Live, ‘Closing the Digital Divide’ (World Bank, 2020) <https://live.worldbank.org/closing-the-digital-divide> accessed 28 April 2021.

WHAT IS DIGITAL TECHNOLOGY?

Technology can be understood as the practice of making and using tools to achieve specific practical goals. Writing implements—from a stylus for inscribing a stone tablet with the Code of Hammurabi, to the quills used to draft and sign the Magna Carta, to the gel ink roll-erball pens of today—are all examples of the slow evolution of writing technology. A field of continuous and discrete marks can be put on a writing surface. Incisions, shades of tone, or smooth curved lines can be seen by human eyes, processed in the language centres of human brains, and recognised as writing, representing items of information. These can be referred to as analogue technology. This is a term which defines technology that does not involve processing letters, numbers or other information electronically. Another common example of analogue technology you may have come across is a watch or clock with a numbered clock face and two hands that show and measure the passage of time.

In contrast, digital technology entails the use of electricity and electronic devices to create, process, transmit and store information. It is distinct from analogue technology in that it uses a discrete, regular representation of information in sequences of binary values (ones or zeros). Unlike with analogue technology, there are absolutely no in-between values or states, no shades or tones or gradations; there are only two values in the base unit of expression. Using our example of a watch or clock, if you read the time from your smartphone or tablet it is represented by a set of numbers, such as 19:00, rather than as a form of continuous measurement.

The constraint on the expressiveness of the fundamental element (in other words, the fact there are no in-between values or states) may seem like an impediment to building anything useful. In fact, as we will see in this textbook, this constraint is the basis of computing systems that exploit the physical properties of certain electrical devices connected in specific combinations and configurations that yield the results of concrete calculations, or operations that manipulate data represented in ones and zeros. Layering these fundamental building blocks over time in assemblies, and advances in materials, processes and miniaturisation, have led to the complex web of high-speed computation and high-resolution media and communication that we experience in our daily environment, powered by digital technology.

You should note that throughout this book the terms “technology” and “digital technology” may be used interchangeably, depending on the context.

WHAT IS DIGITAL LAWYERING?

There is no single simple definition of digital lawyering, and it is likely that you will develop your own definition as you work through the textbook. Overall, digital lawyering is a broad term encompassing both practical and theoretical elements. It can be used to refer to the practical ways in which individual lawyers, and the legal profession more generally, have begun to use and adapt to digital technologies. It also refers to a body of theory which begins to identify and explain the sorts of learning that are required for law students and future professionals to thrive in a digital age. It encapsulates an understanding of some of the complex and disruptive changes brought about by technologically mediated practices, including:

• Their impact on current and future legal practice, questioning what is required for a law graduate, trainee or lawyer to thrive in a modern practice.
• Their impact on the sorts of knowledge that make up a law degree, exploring what interdisciplinary knowledge and awareness can equip a law student to be future-ready.

Professor Richard Susskind, IT Adviser to the Lord Chief Justice in the UK, has discussed the impact that digitalisation and technology have had on legal services. In his book The End of Lawyers? Rethinking the Nature of Legal Services,⁹ he advised that enhancements in technology leading to improved, sustained and advanced methods of legal services delivery are inevitable and that, consequently, lawyers should change the way they work. As the legal profession undergoes its digital transformation, reshaping how we practice as lawyers and the nature of how legal services are delivered, learning about digital lawyering can help in developing a necessary understanding of core technologies, their features and functionalities, how they are being utilised and the impact of these technologies on the role of legal professionals. Digital lawyering theory also assists in highlighting gaps within the profession and demonstrating the opportunities to merge law with technology to create hybrid roles within the legal sector. It can also be used to explore limitations and gaps in the existing law and how it can be interpreted more broadly to capture both the physical and digital worlds. This raises much wider questions about the intersection between technology, law and society. For example, as a society how should we balance the sharing of information online with people’s right to privacy? How can we protect the right to privacy while preserving the right to free speech? How can we protect the more vulnerable members of society?

9 Richard Susskind, The End of Lawyers? Rethinking the Nature of Legal Services (Oxford, Oxford University Press, 2010).

Looking at these aspects of digital lawyering encourages law students and existing legal professionals to prepare for the changing legal profession. Examples of legal practice embracing digital technologies include advances in artificial intelligence (AI) and Big Data for decision-making, the automation of a range of previously manual processes, in the revolutionising of the execution of wills and in the area...