JOHN
HOKKANEN1 and MARC LAURITSEN2
1Independent Legal Technology
Consultant, Encinitas, California, USA
E-mail:
jh9@hokkanen.com
2Capstone Practice Systems,
Harvard, Massachusetts, USA
E-mail:
marc@capstonepractice.com
Abstract. Business theory suggests that
knowledge intensive professions like law would devote major
attention to knowledge
management (KM) activities. After all, since a firm’s combined knowledge
is a key differentiating asset,
one would expect the exploitation of that asset to be a high priority. Yet
new lawyers are often surprised
at how little of such activities take place within firms. One might
also expect to find rich
connections between academic research in knowledge management and law
firms using that research. The
rarity of such connections stands in sharp contrast to the breadth and
depth of use of substantive
legal research and analysis. These disappointments are not unrelated: a
firm that allocates little time
to systems for leveraging its intellectual content is unlikely to invest in
staying up to date with
external research relating to such systems. The authors believe that
significant
progress nonetheless may be
made both in applying KM methodologies to law firm work and better
connecting the academic and
practice sectors. To those ends, this article explores three theses: (1)
Legal technologists can and
should lead by example in utilizing KM tools and methods; (2) The
economics of legal practice
still pose substantial challenges to even those knowledge technologies
considered by some as truly
“disruptive”; and (3) Focussing on areas that could yield a tremendous
economic harvest may help forge
richer connections between the work being done in academic and
practice spheres.
1. Tools for the toolmaker
A small but growing number of
lawyers now make a living building knowledge
tools for other lawyers to use
in their practices. We work on know-how databases,
portals, document assembly
applications, expert systems, intelligent checklists,
and related technologies that
serve as cognitive prostheses to busy professionals.
As legal knowledge engineers,
we put increasingly intelligent forms of technology
in the hands of our lawyer
clients. But what about us toolmakers ourselves?
What intelligent technologies
can we use in our own characteristic professional
activities?
This section sketches some
tools that are being or could be used by those of us in
the legal field who spend time
building knowledge tools for others. The following
sections consider how law
firms might exploit such technical assets to achieve a
significant competitive edge.
296 JOHN HOKKANEN AND MARC
LAURITSEN
1.1. SOME EXAMPLES
On a prosaic level, many of
the tools and techniques we espouse to our lawyer
customers can be directly
applied to our own practices. For instance,
• Knowledge bases can be constructed of legal
technology work products,
applications, tools, and
experts, both within and across offices.
• Smart project templates and checklists can be
developed that remind us of tasks
and issues that need to be
addressed in development projects.
• Document assembly tools can be used to generate
memos, questionnaires,
documentation, and other
materials needed to define and accomplish KM
projects.
• Expert systems can be written to help
substantive specialists to think through
the possible appropriateness
of knowledge system development projects, elicit
some of the requisite
know-how, and even create a first pass at a rule base.
• Collaborative research tools like Cartagio
(www.missiontrek.com/legal) can
facilitate intelligence
gathering about tools and methods, collaborative filtering
tools can assist in
identifying key intellectual assets, and collaborative aids like
whiteboarding can facilitate
joint work across expansive distances.
• Process maps can help identify the steps
through which legal technology systems
are developed and at which
points knowledge assets (e.g., any listed here)
might be applied to the
process.
• Standard KM methodologies can be systematically
applied, such as after- theproject
interviews of project
participants, decomposition of lessons learned,
and development of best
practices documents.
• Communication across organizational boundaries
as well as with external entities
can facilitate tremendous
practical learning about the problems of collective
action (e.g., freeloading,
information hoarding, incentives, leadership where
reporting relationships do not
exist) as well as implementation of workable
solutions.
• E-learning tools can be developed to provide
scalable methods of knowledge
transmission to new entrants
in our field of knowledge engineering.
• Frameworks of analysis can be developed to
understand what we do, how we
should do it, and how we might
measure our success in meaningful ways.
One powerful class of
applications consists of might be thought of as “codification
accelerators”. For example,
• Advanced document comparison utilities can be
used to highlight patterns of
variation within related sets
of transactional documents, helping to accelerate
the mark-up processes that
typically precede document automation efforts.
• Data mining and rule induction tools can be
used to identify candidate rules
implicit in a collection of
cases or documents. Patterns can be noticed and
surfaced for human
confirmation.
• Visualization technology can similarly assist
in facilitating human recognition
of important patterns that may
signal aspects of codifiable knowledge.1
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KNOWLEDGE TOOL MAKERS 297
• Tools exist for generating many fact patterns
and running them through
systems to test and debug
their logic.
• Machine learning techniques can be applied to
enrich knowledge stores
through user feedback and
automated discovery of subtle regularities.
• Taxonomies like West Publishing’s key number
system or LawPort’s2
starter
taxonomy can spare us from
needlessly reinventing topical hierarchies.
• Auto-categorization tools like Autonomy can
help us organize large bodies of
documents that serve as either
raw material for, or auxiliary help resources to,
a knowledge system project.
Another way of looking at this
is to think in terms of specialized tools that:
• Help us see and document patterns in data
• Help us interact with knowledge experts in
efficient ways
• Help us handle routine aspects of our knowledge
codification efforts and
validate/debug our works in
progress
• Help us maintain, extend, and integrate our
applications
• Help us communicate what we know and how we
work
• Allow practitioners to test out their ideas
against an evolving knowledge
codification.
1.2. SOME CHALLENGES
There is a relatively small
market for these tools, so it is hard to capitalize their
development. Firms are
reluctant to share tools and know-how out of competitive
concerns. Budgetary
constraints will be significant until the business case for advanced
legal knowledge tools becomes
more compelling, which brings us to the
considerations in the next
section.
2. Are online legal advice
systems disruptive technologies?
Since the release of Clayton
Christensen’s book The
Innovator’s Dilemma in
1997,3 legal commentators (Mountain,
Susskind, Hokkanen4) have speculated
about the implications of
“disruptive technologies” for law firms. Disruptive technologies
provide a new, alternative
value proposition that clears away prior value
propositions. In the context
of law firms, one pressing question is whether or not
self-help on-line legal
services developed with Internet-related technologies are
disruptive technologies. The
question is an important one, because the failure to
reckon with disruptive
technologies by a large firm means that it will be wiped out
once these technologies are
established. We will use this framework of analysis to
assess online advisory systems
as one example of a legal knowledge technology
from a business point of view.
According to Christensen’s
analysis, at the beginning of their application, disruptive
technologies are not of value
to high-end clients because they are not
298 JOHN HOKKANEN AND MARC
LAURITSEN
sufficiently perfected to
deliver value. High-end customers want proven technologies
with robust value and are
willing to pay for them. Consequently, disruptive
technologies are usually
developed by appealing to down-market customers.
In the legal sector, the high
end of the market is dominated by large corporate
firms (and maybe some
specialty boutiques) that are successful in charging very
high fees for their work.
Christensen makes use of a concept of the “value network”
to encompass the combined
tools, technologies, techniques, and people that establish
a firm’s value proposition.
For example, a large, geographically distributed,
full practice law firm with
high overhead but deep connections to international
corporations has a different
value network than a solo trusts and estates practitioner
who is well known at his local
church.
There is no doubt that on-line
legal advisors offer a different value proposition
than custom advice by a
lawyer. To the extent that one defines disruptive
technologies solely by whether they offer a new
value proposition, then on-line
legal advisors would clearly
fall within this realm. However, simply because a new
technology offers a new value
proposition does
not make it a
disruptive technology.
For example, the introduction
of the telephone did not displace postal mail at all,
though email appears to have
had a significant impact and may replace postal mail
at some point. A new
technology may simply add land mass of opportunity. For
example, videotapes did not
wipe out movie attendance, and instead opened up
entirely new distribution
media for small films that do not have mass appeal. The
fact that a technology offers
a new value proposition does not make it inherently
disruptive.
In hindsight, the classic mark
of a truly disruptive technology is that it has
cleared away past value
propositions (pretty much with a clean sweep). Though
one may believe that on-line
advisors will find their proper place within the legal
landscape, this does not doom
traditional legal advice. It may be more plausible to
believe that on-line legal
advisors will simply remove some repetitive work from
lawyers’ plates and allow them
to focus onmore meaty questions. Instead of wiping
out these service
organizations, it may simply rationalize what they supply to their
corporate customers.
Corporations may still commit an equal amount of resources
to litigating a case or
transacting a deal, and the litigation or deal may simply
become more sophisticated as
clients become better educated through self-help
mechanisms. Much of legal
technology seems to have had this latter effect.
What empowers a technology to
be disruptive is the fact that the utility curves of
disruptive technologies
accelerate as they are perfected. This acceleration prevents
adaptation by doubters of the
technology because the rate of change in what clients
demand exceeds the ability to
alter the old value networks and to develop competitive
services.Whether examining new
types of disk drives or excavating technology,
Christensen found that the new
technologies took time and effort to perfect and that
such effort could not be
quickly replicated (and likely had proprietary technology
protected by intellectual
property laws). Thus, if a law firm concludes that the
technology perfection rate and
adoption rate by corporate customers will accel-
KNOWLEDGE TOOLS FOR LEGAL
KNOWLEDGE TOOL MAKERS 299
erate before late adopters can
jump on the bandwagon, then failing to pursue these
technologies would be a
misstep.
In this regard, it is clear
that the development of on-line legal advisors takes
substantial time, primarily a
result of the difficult task of modeling the knowledge
that is to be represented
within the advisor. It should be noted that these
knowledge bases may be
constructed from small knowledge units, and, once
modeled, these smaller units
and systems may be leveraged by increasingly large
and complex applications. Over
the past few years, a number of sophisticated online
legal advisors have been built
in this way using the Jnana Logic Server (see
http://www.jnana.com), a
platform optimized for the construction of legal and regulatory
advisors. However, even with
powerful technologies like the Jnana Logic
Server, the task of knowledge
engineering takes significant time and effort simply
because the humans developing
these systems are only beginning to develop expertise
in modeling what they know. A
firm should not ignore a competitor that
has invested in developing
such leveragable knowledge assets for the same reason
that a firm should not ignore
a competitor’s geographic expansion designed to offer
higher levels of service. But
in the latter case, no one would suggest that a firm’s
geographical expansion is a
disruptive technology.
Of course a healthy fear of
new technologies is probably a good thing. (As Andy
Grove’s book title suggests,
only the paranoid may survive.5)
However, the client
relationships that law firms
enjoy with their corporate customers are not the same
as other product vendor
relationships. It is hard to imagine that a corporation that
wanted to move in the
direction of an on-line service would, absent other problems,
simply dump an existing firm
for the lack of an on-line system without previously
communicating its desire to
have such systems. Such trusted advisors would likely
be given every opportunity
(and sent every signal) to add new on-line services to
their offerings.
Being a late adapter does have
costs. Going through rapid change in order to
catch up will likely increase
the costs of change and will certainly increase the
stress of it. The impact upon
firm attention caused by such stress is not something
to be ignored. To some extent,
a firm’s culture will determine whether a firm bets
that a technology will not
make a splash, understanding that it may pay more if
it loses the bet. Where one
firm may decide to bank the money now, another may
decide that legal practice and
firm management is more manageable (and maybe
more pleasant) by making
steady investments in new technologies that decrease
risk and stress.
Certainly it is possible to
imagine scenarios where corporate customers abandon
great law firm partners with
long-standing relationships because of on-line systems.
However, the central issue is
whether such scenarios are realistic and likely. In
short, will the fact that a
firm fails to develop on-line systems this year, next year,
or even within the next five
years set into play forces which will cause the firm’s
destruction?
300 JOHN HOKKANEN AND MARC
LAURITSEN
There are good reasons why a
firm should make such investments, including
the desire to create a
strategic law and technology platform as well as to purchase
an insurance policy against
future change. These reasons, however, might suggest
a very modest approach to
investments in on-line advisors and self-help technologies.
On the other hand, concluding
that a technology is truly disruptive requires
one to reckon with it or court
disaster. At this point, the overall balance suggests
the first rather than the
second conclusion. To the extent that these technologies
become accepted by corporate
customers and a great firm turns a deaf ear to its
clients’ requests for such
systems (as opposed to being wiped out for failing to
recognize early on that a
technology would play an important role), then the firm
is likely to fail, and
probably will, but for reasons independent of its technological
capabilities.
3. Getting more disruptive
In applying Christensen’s
ideas to law firms, one may speculate what truly disruptive
technologies would look like.
Such technologies could be comprised of several
components: (1) methods for
representing knowledge units in reusable blocks; (2)
revolutionary knowledge
modeling tools to create those blocks; and (3) methodologies
and personnel networks within
a firm that implement 1 and 2 efficiently and
quickly.
Clearly we have a great need
to represent legal knowledge in building blocks
that may be reused by multiple
applications. Existing technologies (whether document
assembly, on-line advisor
systems, or know-who systems) have knowledge
that is trapped within its own
context. Combining related data alone requires the
construction of complex data
warehouses where normalized sets of data provide
the linkages between systems
(e.g., SV Technology’s LawPort). In an ideal knowledge
world, not only would the data
sets of the customer relationship management
(CRM), billing, and document
management systems be related, but knowledge
building blocks would be
developed so that they could be used by document
assembly systems, on-line
query and advisor systems, know-who systems, intellectual
capital retrieval systems, and
even automated personal “bots”. To do this, a
common language for interrelating
these components needs to be developed. From
a data representation point of
view, it would seem that the various Legal XML
efforts around the world will
help provide such a framework.
A framework for representing
legal knowledge must then have revolutionary
tools to enable the rapid
modeling of that knowledge. Ideally, tools would be designed
that could parse our existing
bodies of legal knowledge (i.e., briefs, cases,
treatises, and codified law)
to propose an initial set of knowledge components
and relationships in the
designated framework’s format. New tools would have
to be developed to allow
attorney experts to easily draft and review their knowledge
without having much of a
learning curve to use any of this new technology.
KNOWLEDGE TOOLS FOR LEGAL
KNOWLEDGE TOOL MAKERS 301
Such tools must also have easy
to use editing and revision interfaces for more
computer-savvy lawyers to
maintain the knowledge bases.
A law firm that developed
these two components in even a narrow area of law
would have devastating
technology. Not only could documents be assembled and
questions be asked within the
law firm, clients could be given access to executive
summaries as well as deep
knowledge systems. What-if scenarios could be run
where the impact of proposed regulations
in complex regulatory environments
could be assessed. A firm
having such technology would then need to develop the
methodologies and personnel to
administer this technology’s application to other
legal areas. With all three
components – knowledge building block frameworks,
knowledge acquisition tools,
and the people and methods to run them with a high
level of quality assurance –
one would think that such a firm could wreak havoc in
the legal marketplace. It is
plausible to think that completely new markets would
emerge for such a firm,
including the sale of subscription services to state, federal,
and international governments.
Numerous questions arise when
thinking about such technologies. Would a firm
be better off seeking
multi-organizational adoption of the knowledge framework
or protecting it as
proprietary? Which firms or organizations (e.g., West, Lexis)
have or would acquire the
requisite components: (a) cash to fund the research and
development; (b) cognitive
frameworks and theoreticians to develop the underlying
representations; (c)
technologists to implement all necessary technology; and (d)
requisite legal expertise to
sufficiently qualify a system? Would such technologies
best be funded by a governmental
agency like the National Science Foundation so
that its value may be made
publicly available to all firms, legal services programs,
and others? Is there any
future in an open source strategy, like the Open Practice
Tools Initiative?6
3.1. TOOLING UP
Legal knowledge tool makers
shouldn’t be like the proverbial cobbler’s children,
walking barefoot in a shop
that produces shoes. A dirty secret of our business is
how little use we make of the
very kinds of knowledge-work-streamlining technologies
we so enthusiastically
evangelize to others. We can take refuge for only so
long in the comforting story
that “meta-practice” (knowledge work that is about
legal knowledge work) is even
harder to systematize than practice itself. By trying
harder to find and use
knowledge leveraging aids that suit our own work, we
can not only enhance our
professional effectiveness, but also improve our sense
of solidarity with the “end-
lawyers” we serve, and deepen our insights into the
mysterious dance of people and
their evolving artificial assistants.
Perhaps most importantly for
the ultimate impact of our efforts, by showing
leadership in knowledge tool
utilization, we knowledge tool makers can help accelerate
the very market dynamics that
will transform today’s legal industry into
one that better accomplishes its purposes of justice and
prosperity. Whether that
302 JOHN HOKKANEN AND MARC
LAURITSEN
process turns out to be one
that sustains or disrupts today’s incumbents remains an
open question.
Notes
1 See Lauritsen and Johnson, Reenvisioning Law Practice
with Computers: Visualization and Collaboration.
In Materials for Sixth Annual
Technology in the Law Practice conference. American Bar
Association. Chicago, March
1992.
http://www.eff.org/Legal/Tools/lauritsen_johnson_legal_comp.article
2 LawPort is a knowledge
management portal specifically designed for law firms. See
www.svtechnology.com.
3 Clayton M. Christensen, The
Innovator’s Dilemma: When New Technologies Cause Great Firms
to Fail (1997).
4 Darryl R.Mountain, Could New
Technologies Cause Great Law Firms to Fail?, Journal of Information,
Law and Technology, 2001(1) at
http://elj.warwick.ac.uk/jilt/01-1/mountain.html;
Richard Susskind, Transforming the Law (2000);
John Hokkanen, Investing in
Technology: A Business Framework. Managing Partner, September
1999. Volume 2, No. 4, 8-13.
[Available at http://www.llrx.com/features/investing.htm.]
5 Andrew S. Grove, Only the
Paranoid Survive: How to Exploit the Crisis Points That Challenge
Every Company (1996).
6 See Marc Lauritsen, Ontologies and Openness in Law
Practice Automation.
Workshop on “Legal
Knowledge Systems in Action”,
Eighth International Conference on Artificial Intelligence and Law,
St. Louis, Missouri May 2001.
http://www.capstonepractice.com/OntoOpen.html
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