 home page |
1 INTRODUCTION
Legal computing pioneers looking for new
challenges should read Microcomputers as Decision Aids in Law
Practice by Stuart S Nagel. 1
It is certainly not for the computer novice except to show how the
gap between the technology-aware and those untainted by computer
knowledge is not a matter of distance; it has entered another
dimension.
This book demonstrates the use of the personal computer as an integral component of legal decision making. The author reviews in detail, decision-making &-aiding software, concentrating on the program he developed.
Several important areas of decision-making are covered, including predicting the outcome of future cases in light of previous relevant cases and present fact; litigation choices such as whether to go to trial or to settle; allocating lawyer resources; and negotiating and mediating.
2 DECISION SCIENCE
Many lawyers will find the book alarming. It highlights a general
lack of application of systematic decisionmaking (or decision
science) to even basic law practice matters such as deciding whether
or not to take a case or to accept a settlement. Decision science can
be defined as the study of the principles relevant to determining
which of various alternative decisions will most achieve a given set
of goals in light of the relations between the decisions and the
goals. In the context of lawyer decisionmaking, the main goal is
maximizing income minus expenses (as it is with most businesses),
while operating within the constraints of law, and personal
preferences.
3 COMPUTERIZED DATABASES & COMPUTER
COURSES
In addition to decision-aiding software, lawyers in the area of case
selection and settlement would benefit from access to the
following:
• Computerized databases that give likely damages or other judgements for various types of cases.
• Computerized databases that give probabilities of winning for various types of cases.
• Computerized databases that give information on billable hours for various types of cases, and the relations between billable hours and both judgments awarded and the probability of winning.
• Courses which explain to practising lawyers how to make use of the above databases and computer programs.
Variations on the databases already exist in the form of looseleaf services. Variations on the computer programs already exist in the form of verbal and qualitative descriptions of the relevant steps or algorithms. A substantial percentage of law firms already have microcomputers. The author believes that what is needed are some lawyer-entrepreneurs to implement the existing hardware and knowledge in order to make decision science more widely applicable to basic law practice.
4 MORE IS REQUIRED
I would suggest that much more than this is needed. The legal
profession in general has not bothered to take up the many
straightforward practice-enhancing tools which have been available
for some years. It would be a brave person who would promote wide
acceptance of such sophisticated approaches to law.
Support could be forthcoming from the new elite who have have been inspired by their hands-on experience with computers to help them practise. For them the potential is unlimited. Armed with even more rewarding computer applications, they will find that it is easier and more important to impress clients than their colleagues.
5 JUDICIAL &
LAWYER PREDICITON SERVICES
To help lawyers embrace these ideas, the author suggests that a
Judicial Prediction Service and a Lawyer Decision-Making Service be
made available on a bureau basis.
Through statistical analysis, one can obtain insights for supplementing traditional and social science analysis. Such insights can be helpful in improving our ability to explain and predict case outcomes. Such thorough systemised decisionmaking using computers is consistent with legal reasoning and a valuable tool for any serious lawyer.
Using personal computers as decision-making aids in law practice may raise ethical and related problems more clearly than when less explicit analysis is used. For example, a litigation strategy analysis brings out more clearly that settlement may be the better alternative from the lawyer's perspective, but going to trial may be better from the client's perspective, or vice-versa.
Also, the best way to sequence cases may be best from either from the lawyer's perspective or the client's perspective, but the optimum quantity of time to allocate to a given matter is almost always likely to be different for those two perspectives. This is true regardless of whether the fee-paying arrangement is a flat fee, an hourly rate, or a contingency fee.
Overcoming such problems would be more rewarding than possible alternatives, as failure to use available technology has been held to be negligent.
A book before its time, it is recommended for any lawyer who recognises the need to occasionally pause to sharpen the axe.
|
home page |