|Oregon State Bar Bulletin APRIL 2012|
(But It Still Has a Long Way to Go)
By Robert J. Ambrogi
Imagine instant access to virtually unlimited sources of legal information. Imagine receiving court decisions within hours of their release. Imagine consulting experts in any legal field, anywhere in the world, and having their answer within minutes. Imagine having statutes, bills and government documents at your fingertips. Imagine huge files of legal forms and pleadings at your disposal.
Now imagine that this is all free and available to you right in your office, no matter how small or remote. No travel to distant libraries. No expensive search fees.
These were the paragraphs that opened my first legal.onlinecolumn in March 1995, titled “The Internet: A Revolution in Law Practice.” This column will be my last. When I started writing it, I thought I would do it for a couple years, until we all figured out this new-fangled thing called the Internet. Seventeen years later, we’re all still figuring it out.
We’ve come a long way, baby, as the expression goes. In 1995, much of the Internet still consisted solely of text and was navigated through an assortment of archaic and confusing commands. The hyperlinked version of the Internet — what we came to call the World Wide Web — was first developed in 1991 by Tim Berners-Lee at CERN in Switzerland.
The graphical web only began to build momentum in 1993 with the development of the first two viable browsers — Mosaic, which later became Netscape Navigator, and Cello. Notably, Cello was created in order to provide lawyers with easier access to the web. It was developed by Thomas R. Bruce, co-founder of the Legal Information Institute at Cornell Law School.
It seems quant now to remember that, in 1995, few lawyers used email or even knew what it was. Back then, we still preferred the telephone and fax machine. Neither Westlaw nor Lexis-Nexis were accessible through the Internet. You still needed to use a dial-up terminal or hard-copy books in the library.
Hints of What Was to Come
Even then, however, there was clear evidence of where the Internet would lead us. Already then you could obtain the full text of Supreme Court opinions on the Internet, within hours of their release. You could find the current opinions of all the U.S. circuit courts of appeal — generally made available through the good graces of innovative law schools such as Cornell, Washburn and Emory.
Still, in the year I started this column, the Internet was far from a viable medium for legal research. Here is how I described the situation in December 1995:
When it comes to legal research, the Internet remains a promise waiting to be fulfilled.
The promise is of virtually no-cost, electronic access to vast libraries of information, of an easily affordable alternative to Westlaw and Lexis that will put solo and small-firm lawyers on the same footing as their large-firm brothers and sisters.
The reality is that the Information Superhighway is littered with speed bumps. Courts, legislatures and government agencies have been slow to put their resources online. Those that do, offer only recent information, with little in the way of archives. Secondary sources, such as treatises, remain even rarer. On top of it all, information on the Internet can be hard to find, requiring resort to a variety of indexes and search engines.
Where Are We Now?
As I look at where we’ve come from 1995 to 2012, I have no question that the Internet did, in fact, bring about a “revolution in law practice,” as that first column said. Consider:
- Every federal and state appellate opinion can be obtained online at no cost.
- Many, though still not all, trial court opinions are available online.
- Federal and state statutes are online, as is a rich variety of legislative and bill-tracking information.
- To an ever-greater extent, other types of primary legal materials — from federal regulations to municipal ordinances — are being published online.
- An entirely new genre of legal reporting, commentary and scholarship has emerged in the form of blogs.
- Search technology has made it so easy to find information that we’ve forgotten how tedious research once was.
- Whereas once we defined our professional communities by cities or states, lawyers are now connected globally.
- A solo in a remote, rural locale stands on the same footing as a big-firm lawyer in downtown Manhattan.
- Thanks to mobile technology, we can do all of these things from virtually anywhere. Gone is the lawyer tied to the desk or the library.
In short, the Internet has changed every aspect of our practices — how we research, how we communicate, how we market and how we network.
A Ways to Go
All good. Still, if you had asked me in 1995 where we’d be in 2012, I would have predicted we’d be even farther along than we are.
Most surprising is the extent to which many primary legal materials remain outside the public domain. By primary legal materials, I mean materials that we, as citizens and taxpayers, bought and paid for. It’s not enough that we’ve paid for them once — we have to pay for them a second time.
The most striking example of this is PACER, the system for accessing electronic records of the federal courts. While PACER’s fees are by no means exorbitant, I am disappointed that the public should have to pay fees of any kind to access public court information online.
Generally speaking, the federal government far outpaced most state governments in providing online access to legal and government materials. Some states still provide only skeletal information online. And some states still contract out the rights to their materials to private publishers, who control and require payment for access.
Beyond primary materials, I would have thought that the Internet would by now have spawned a richer library of secondary materials — treatises, practice guides and the like. To a degree, blogs fill this role. And there have been some attempts to create legal treatises and encyclopedias using the wiki group-authoring format. All in all, however, the big commercial research services retain monopolies over these types of materials.
I don’t begrudge those companies their right to charge for what they’ve created and published. To be fair, we have only ourselves to blame for the lack of free alternatives to the commercial treatises. Attempts at collaborative authoring among legal professionals seem to hit dead ends. Is it that we don’t have the time? Is it that we are proprietary about our work and knowledge? I don’t know the answer.
I started this column as a solo lawyer who was excited about the potential the Internet offered, for myself and others. It held the promise of allowing us to do far more than we then could with existing tools and technologies. And it seemed that we would be able to do all this for far less cost — in fact, largely for free.
The power of the Internet has not disappointed. Today, it takes only a computer to operate a law practice. What has disappointed, however, is that we continue to face barriers to access to information. Some of these barriers are erected by government entities, some by businesses and some even by us.
I understand that governments are sometimes hogtied in what they can accomplish. I fully support business innovation and fully expect businesses to profit from innovation. But there needs to be a baseline of free access for everyone to legal and government information. That was the promise of the Internet in 1995 — and it is one it still hasn’t delivered on..
ABOUT THE AUTHOR
Robert Ambrogi, who practices law in Rockport, Mass., is the former editor of National Law Journal and Lawyers Weekly USA. He is internationally known for his writing about the Internet and technology. He is the author of three blogs, which can be read at www.legaline.com.
© 2012 Robert Ambrogi