Knowledge tools for legal knowledge tool makers

 

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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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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