Law in the Digital Age Through Lived Practice
The More Things Change, the More Things Stay the Same
When the Law Society of Singapore first reached out to me to contribute a reflection on “Law in the Digital Age” to the Bicentennial Law Gazette issue, the first thing which came to mind was how, when I first started practice in 2006, the profession was still very much used to doing things with pen and paper. My seniors and mentors would often give me hand-written markups in bright red ink on my drafts which I printed for their review. Technology was seen by the older generation as a tool that should be left to the younger generation for their benefit, but which would not necessarily make the practice of law easier or make one a better lawyer.
I knew that how technology has shaped the practice of law would be a central theme for my reflection. However, at the same time, I thought about how a younger lawyer, one who would have a different starting point and who would have viewed technological change with a very different lens than I have viewed it growing into practice, would have experienced technology’s impact on the practice of law. So, I invited Timothy Oen from my team at Drew & Napier LLC who started practice in 2019, 13 years after me, to do this reflection together.
As we reflected on this topic and our experience together, we found our views converging to the same conclusion. Despite our different starting points, we agreed that technology has made and continues to make the practice of law both easier and harder at the same time. Nevertheless, despite warnings of massive disruption to the legal industry, and putting aside the question of which of these warnings are important calls to action and which of them are overblown hype, the basic legal principles one must grapple with have not changed, and the aptitude which makes a good lawyer also has not changed. This led us to the conclusion that regardless of where you start and the changes that occur, when broken down to the basics, the more things change, the more things stay the same.
The practice of advocacy
When I first started training, litigation was very much an exercise in going through reams and reams of documents, analysing evidence for submissions and cross-examination, and researching for cases where the facts fit. When preparing for one of my first trials with my pupil master, my task as a young associate was to help my pupil master find specific documents from the hardcopy volumes of the bundle of documents to help her prepare for cross-examination. It was a daunting task since I was new to the file. Her natural expectation was that I would pick up a file and start reading the documents, flipping pages, making notes and digesting the facts of the case while searching for what she needed.
She stared at me quizzically while I sat before her, eagerly awaiting to be given a search term so that I could run the search on the PDFs. When I explained to her why I was focused on my laptop instead of the reams of documents, she expressed some doubt about whether I would be of any help at all with her cross-examination preparation unless I knew the facts of the case. I was asked to find documents from about a particular date to address a disputed fact. Within seconds and to her surprise, not only was I able to find the exact document of that particular date that clearly settled the disputed fact, I was also able to find other documents of that same date which showed that the other side was clearly wrong on the issue. I was thus helpful in her cross-examination preparation even without knowing the facts.
But did that use of technology make me a better lawyer? I was able to easily find highly relevant and helpful documents for my pupil master, but I was none the wiser about what those documents said or why they were helpful without understanding the facts. It still came down to my pupil master’s oral advocacy and cross-examination to advance the client’s best case and make the best submissions based on the materials that were before her. Technology made searching for documents an almost brain-dead easy part. Reading the documents, understanding the facts and asking effective questions was the actual lawyering.
From the time Tim started practice, the one big way in which technology changed how advocacy was practiced was when Covid hit in early 2020. Overnight, we went from having only hearings in person to having only virtual hearings. Instead of being able to see the body language and demeanor of opposing counsel and the Court in person, all that was left were small images of people’s heads on the screen, boxed within an 8 x 6 cm screen depending on the Zoom setting which you were using.
Suddenly, the majority of things I taught, and which Tim learnt, in advocacy class about looking at the Court when you spoke, being able to see when a Judge was with you and when they were not, had little to no relevance. We needed to change and adapt to accommodate remote advocacy.
As time wore on and the novelty of virtual hearings wore thin, we realised that the purported magnitude of this change was perhaps somewhat overblown. At the end of the day, while the format and means by which we presented and argued our client’s case did change, the content did not. While we all had to pick up new skills in virtual advocacy, the core skills of speaking slowly and clearly, having good presentation, and most of all, having solid legal arguments did not change. In other words, good lawyering stayed the same.
The practice of practice
One of the other key areas where I have seen technology truly impact the practice of law is in document management. When I first started practice, everything was more or less on paper, and so I would have had to flip through stacks of files in order to look up the history of a certain case. I complained a great deal about it to my seniors and my pupil master. I could not understand why the files were not digitized so that I could run searches on the electronic files to find what I was looking for.
Eventually (and I suppose thanks to my complaining), I was tasked by the firm to migrate all of its physical cases onto an online document management system (DMS). As the old saying goes – Be careful what you wish for?
The entire process was without a doubt painful, but (I would like to think) worth it. It was essentially a key step in the digital transformation of the firm’s practice. At the end, instead of having to trawl through physical files, I was able to log on to the system, key in various search terms, and find what I was looking for. The system when it first started was by no means perfect, but it certainly assisted us in the practice of law.
The DMS greatly increased knowledge sharing within the firm. Nonetheless, while the DMS provided us lawyers with an additional platform which we could leverage to practice the law, the core skills required of knowing the facts of the case, being apprised of all developments in the case, and advising the client on the best way forward did not change.
Tim’s experience in this regard was the increased use of cloud-based storage systems (like OneDrive) which really flattened the manner in which we practiced. When he first started, each lawyer/individual contributor would still have their own drafts and research saved on their own devices, which would then be sent by email to someone else in the firm if requested. The DMS had to an extent helped with this but the focus of DMS was mainly to ensure that the key records of a case were properly captured and recorded, and would only contain what was uploaded.
With the cloud, instead of each individual working on their own drafts, there was now one draft which everyone worked on. The workplace became much flatter than ever before – everyone has access to everything, and one is expected to know all that is going on even more. To be honest, this took all of us some getting used to. However, this did not mean that the core skills required of being a lawyer changed, but that this was (again) an additional platform that one needed to leverage to provide the best possible advice for our clients.
The pace of practice
The pace of the practice of law has also generally quickened and will continue to quicken with developments in technology.
This has not been limited to litigation (which is exemplified by the OCR anecdote above). When I first started practice, the standard way of sending a letter would be by fax. This would involve having to physically print out the letter, bring it to the fax machine, key in the fax number of the law firm you wished to send it to, fax the document, and thereafter wait while the fax machine did its job. At the time, I remember when my mentor would tell me of how, in the past, sending a letter took one to two days instead of ten minutes since letters had to be physically posted.
Now, however, everything is sent over email. Gone are the days of waiting by the fax machine to do its job. Now, at the click of 3 buttons, a letter can be sent: one to print the letter into a PDF, two to attach it to an email, and three to send. What perhaps used to take ten minutes now takes two. Lawyers are now expected to get things done faster than ever, and that will never stop being the case.
Of course, despite the way in which the pace of the practice of law has quickened, the standards expected have not changed. Having more time in between correspondence gave one more time to think, but the issues that needed to be considered did not change. We still need to carefully consider everything we say in correspondence, even if the time we have to prepare such correspondence has now dramatically decreased.
Even since 2019 when Tim started practice, technology has caused the pace of practice to increase, through the increase in use of instant messaging apps to work. Fax was still in use in 2019. However, Covid soon came along, which moved everything to email. Things were still very much done over email, which (in a sense) gave us some separation and buffer – one would have the space and time to craft a response and send it via email. Instant messaging apps had already been growing in popularity, but it had mostly been limited to personal and not business use.
Nowadays, we find that clients are increasingly expecting you to be online and available at all times of the day on WhatsApp and/or other instant messaging apps, thereby further increasing the pace at which lawyers are expected to practice. What used to be a query sent by email will now come as a WhatsApp text message, with an answer expected in minutes. The pace of practice has picked up tremendously even in the past 7 years. But legal advice is legal advice, and whether it is given by WhatsApp, email, or hard copy letter, it’s important to get it right. Managing the pace to allow space for double and triple-checking has now become critical.
Looking forward
Much of the above has been spent looking backwards. For me, looking back on my own experiences while at the same time hearing Tim’s experience has shown me that despite the differences in changes we have experienced, the core of what it means to be a lawyer has not changed. The tools that we may leverage on may now be very different, but the basic skill sets of having good attention to detail, a logical mind, being able to leverage every resource you have, having a good foundation in order to provide efficient and speedy service, has not. The practice of law may be more demanding than what it was twenty years ago as the pace of practice has quickened, but we have to move with the times and cannot long for a time gone by.
This is especially so with the advent of GenAI. Now, both Tim and I are being approached by clients who already have an answer to their question provided by GenAI. GenAI has lowered the barrier of the legal profession to the general public. With the right prompts, a layperson would be able to have a credible-sounding answer to a legal question and will come to you expecting you to immediately agree with them, and will challenge you when you do not.
All this to say that technology is changing the practice of law once again, but at the same time, it isn’t necessarily changing the making of a good lawyer. Responding to clients who come with AI-generated answers may be more time consuming, but the basics needed to respond will still be the same. We will still be required to treat them professionally, answer their queries efficiently, cut through the noise and get to the root of their issues and concerns. That has been the heart of the profession since we began practice and will continue to be the heart of the profession, no matter how much practice changes, for the years to come.
