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Episode 59
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Professional Skills
No More Dusty Tomes: The Changing Nature of Legal Research
Law as stated: 18 March 2022
What is this?
This episode was published and is accurate as at this date.
In this episode, Michael Green, founder of JADE, provides some useful tips for legal research and also discusses the future of legal tech.
Professional Skills| What area(s) of law does this episode consider? | Developments in legal research and legal technologies. |
| Why is this topic relevant? | Understanding how to effectively conduct legal research remains essential to lawyers, whether you work in-house, in a small or large firm, or at the bar. Staying up to date with modern legal research tools can be difficult, but it is a vital component of practice. |
| What cases are considered in this episode? | Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152 |
| What are the main points? |
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| What are the practical takeaways? |
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| Show notes | Thompson Hine’s report called ‘The Innovation Gap Persists’. |
| David Turner:
1:00 | Hello and welcome back to Hearsay the Legal Podcast, a professional development podcast for Australian lawyers and anyone else who’s interested in Australian law. I’m your host, David Turner. Hearsay the Legal Podcast is brought to you by Lext Australia. Lext is on a mission to improve the experience of getting legal advice and practising the law and Hearsay the Legal Podcast is improving your experience of CPD. Now for the moment, legal tech might be the sexier, more publicity hungry enabler of legal practice, but legal research is its often forgotten older sibling. Understanding legal research and developments in the collection and dissemination of legal information is key to maintaining modern legal practices, whether in-house, in a small or large law firm or at the bar. Gone are the days of practitioners sitting in a musty law library laboriously hunting down case law from hardcover law reports, today legal researchers, at whatever stage of their careers, need to be equipped with tools of modern practice and that means knowledge of where and how to find legal information and how to collaborate, summarise and explain it to both lawyers and non-lawyers alike. Increasingly, however, the boundaries between legal research and legal tech are being blurred. Returning to Hearsay today is Michael Green, SC, a barrister at Level 22 Chambers in Sydney. Now in his practice at the bar, Michael specialises in commercial law, intellectual property, public law and tort but he’s also the brains behind Open Law and BarNet, the most widely known product of which is perhaps Jade. Michael, welcome back to Hearsay. |
| Michael Green: | Thanks very much, it’s great to be back David. I enjoyed the last session so much, I’m glad to have a chat again! |
| DT: 2:00 | Well it’s our pleasure to have you back! Now in your day job, you’re a highly successful commercial silk, but tell us how that led you to be running Open Law and Jade? How did you get started and what sort of gap did you see in the market that Jade’s trying to fill? |
| MG:
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7:00 | Well, that’s a really interesting question about how we came to set up BarNet and then what led to Jade. So when I first went to the bar, I came into a bar that still used modems. This is just before the turn of the century, had dial-up modems. Email was a phone call away, facsimiles were the high-tech element and the idea of using Internet to do legal research was completely foreign to everyone. The highest form of sophistication for people was to have CD ROMs with legal information on them. And so some of the early legal information that I used was going and putting in a CD ROM in and doing some search using full text searching. Before I went to the bar, however, I worked at an organisation called CLIRS. When I was studying at uni, I was there working on the help desk. So that was a great, again it was dial up, but that was a great way of having access to all the full text databases that were, I think, called ‘SCALE’ and ‘STATUS’, the remnants of which are found in AustLIIand also in Jade today, were government funded and there are other databases as well. TIP: You may not recognise my voice. My name is Ross and I’m Hearsay’s Producer. I’ll be taking you through our explainers for this episode. So let’s take a brief look at the history of computerised legal databases. Computerised legal information retrieval was first seen in the United States in the late 1950s. Professor Horty of the University of Pittsburgh was tasked with going through all of Pennsylvania’s statutes to modernise the language. He initially employed law students to read legislation from beginning to end, however, he found that they were inaccurate, and had a tendency to miss the terms they were meant to be looking for because their attention would wander – as I’m sure most of ours did during our time in law school. His solution was to convert all of the statutes into computer readable form and then automate the process of identifying instances of outdated language. Eventually, this led to the Ohio Bar association establishing the first commercial legal database in 1969, calling it OBAR, which was perhaps self-congratulatory. And so when I came and I was a judge’s associate for a period before I went to the bar. So when I came to the bar, I was acutely aware of the need for legal information, but we set up BarNet. The first problem was getting people online, and so we set up the entity called BarNet. And BarNet grew and grew and we connected various chambers and had a very high speed network. And then we looked around for projects we thought could have the greatest impact both for members of BarNet as well as for the wider community. And no disrespect to AustLII, AustLII has done a great job in making legal information available for all, we thought we could do a better job than the sort of information in the way that AustLIIwas arranged and the way that AustLII was used, and so we created this thing called Jade really in about 2005/2006. We had it earlier than that in a remnant form, but 2005/2006 we started the work on Jade and a really talented group of people got together and we started ramping up Jade and then from 2010 onwards we grew. And then and then what happened in 2017, we made the decision to spin out from BarNet the networking business. We were one of the largest ISPs in Australia at that stage although because of our huge amount of concentration, we thought it’s much better that we concentrate on doing that which we’re good at. And as ISPs were becoming a commodity business, it made sense to look for a partner that could carry on the networking part of the business and we were delighted that a company called Anticlockwise took over the networking businesses through BarNetnetworks and took over the BarNet name and relational networking. And so we went all in from really from the beginning of 2018 into being solely a legal informatics company, still called BarNet, but the original BarNet, our original BarNet is now simply Jade. Our wholly owned subsidiary, Little William Bourke, under a contract with the Council of Law Reporting in Victoria publishes the Victorian reports. We provide assistance for publishing the New South Wales Law reports online and we help a whole lot of courts and tribunals around Australia and other entities around Australia make available online legal information. So we’ve really now doubled down on that kind of approach, which is great. TIP: The retrieval system that is used in most legal databases was created in 1970 by British computer scientist and barrister Bryan Niblett. This program was called STATUS and, as Michael has already pointed out, elements of it still exist in AustLII and Jade today. STATUS began being used in Australia in 1973, following a report by the Committee on the Computerisation of Legal Data that recommended an interim legal research system be employed to aid Government lawyers in searching cases and statutes. This system was called SCALE, the other name that Michael mentioned. LEXIS is perhaps the first legal database that a modern Australian lawyer will recognise. It was developed around 1973. WESTLAW was then launched in 1976, originally only including headnotes and references to West’s hard copy published law reports. WESTLAW eventually updated to a full text database in order to compete with LEXIS. |
| DT:
8:00 | Wow. I didn’t realise BarNet had this real legacy as kind of a founding father of the use oftechnology and the Internet at the bar. That’s a tremendous journey. You mentioned that Jade organises information slightly differently to other public legal information providers, tell us a little bit about that. |
| MG:
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11:00 | The philosophy is if there was something in the market that did what we needed it to do already, then we wouldn’t have created Jade. So we started with a single minded idea that we wanted to have a legal research platform that understands how people do legal research and works. So I use Jade. I use other platforms as well of course, but I use Jade to do my legal research. Obviously there’s a need to use more than one system, but the idea is that as Jade has grown, if you’re an expert and if you’re a lawyer that has some knowledge of the field, a barrister or a judge or working in courts, tribunal or elsewhere, you generally can begin and often end your basic research and your main research inside Jade. So that’s the idea. So we wanted to build something that was distinctly better. And we also wanted to build something that reflected the importance of access to legal information as an important incident of a democratic society. So in other words, we didn’t want there to be information locked away. We wanted to make it publicly available. So the first conundrum we had is how do we fund this? How do we make this venture sustainable? So we had the BarNet, we had the BarNet ISP business, and through our commitments, BarNet’s always operated as a not-for-profit, so our commitment to reinvesting any surplus in the sorts of projects we think were worthwhile, we were able to do Jade. And so when we started up Jade, we wanted to make sure that Jade was able to stand alone. And so we had a choice. We could either go on the AustLII model, which was the charitable contributions and government funding of various kinds, or we could look at a different model. We thought, no, let’s look at a different model. Let’s look at a model where we provide the underlying information that’s made available by courts and tribunals legislators. Let’s make sure that’s always available for free as part of our commitment to open access, which we do, so we’re similar to AustLII in terms of open access. But then let’s provide a series of tools that sit on top of it, and we provide that as part of the Jade professional service. So that’s the way we create sustainability. And we have law firms, government departments and other entities that pay for that service, and obviously many individual solicitors and barristers and chambers pay for that professional service and additional tools so that’s where we differentiate ourselves. So that’s how we set out to be distinctly different, both in terms of our sustainability model so we weren’t seeking to be a charity like AustLII and try to interfere with AustLII’s success. We wanted to make sure AustLII succeeds and also we want to make sure that we had something of relevance to users. So the test for our continued relevance is that we’re providing tools and services that work for people. And there’s always things we can do better and there’s always innovation. And the legal domain, the domain of curating and making available legal information, that’s both statutory material and case law is a very complex one. To talk about it is deceptively easy, but it’s actually a very complex task. And so it’s actually attracted in the past and the present a really amazing team of people that absolutely thrive solving those problems. So it’s been an amazing thing to be part of that. It’s not a sole person, it’s through an amazing team of people that all give to be part of this incredible group. And it’s great in Australia that there’s actually a like-minded group of people in commercial publishing, as well as elsewhere, that are very committed to access to legal information. So it’s not like a commercial, non-commercial divide. There’s actually a lot of people trying to solve the same problems and work together in a cooperative way. It’s been really good. |
| DT:
12:00 | And we shouldn’t forget or we shouldn’t take for granted the availability of legal information publicly. It’s certainly not the case in every jurisdiction around the world. Anyone who’s done a foreign law research exercise might be able to attest to the difficulty in finding out about the legislation or case law that governs particular issues overseas, so we are very fortunate to have that open law ethos in Australia and a number of providers who are committed to it. Now Michael, you’re in this unique position because you started your practice at the crest of this wave of adoption of the Internet and other technological tools for legal research and simultaneously you were rolling out the infrastructure needed to make use of those tools to barristers around Australia. And you would have seen the transformation of legal practice both at the bar and in solicitors’ practices by access to the Internet, which has really been a great leveller in terms of access to legal information. How have you seen the way we practice law before and after the availability of these public legal information sources? |
| MG:
13:00 | It’s a really interesting question, may I say. When you think back and you have the romantic idea of what it used to be like, what it is like now, I don’t think all of the changes with the abundant availability of legal information is a good thing. So I’ll explain a few ways. One, the way that briefing takes place now is it’s a lot easier to dump ten thousand, hundred thousand, fifty thousand pages on someone and say, ‘it’s all in there just have a look.’ So there’s a lot less selectivity about what’s included in a brief and what’s included as observations and what sort of material might be relevant. So it’s quite a challenge. The other thing is that the legal research is the same sort of thing where there’s this dumping of fifty or hundred authorities where there might be two or three authorities that are relevant, so more and more I think there’s a problem about how young graduates at law school are being trained about how to do legal research and what matters. I think it’s an important part of law firms to actually train people up and understand the practicalities. You know it’s a great thing that you can find a thousand examples of this type of case, but does that make the argument any better? |
| DT: | Are they instructive? Yeah. |
| MG:
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15:00 | The second thing is, there’s a tendency to write more rather than write better, in terms of when someone writes about something and someone then cuts and pastes a whole lot of other material in and it becomes an incredibly long exercise. So I think one of the things that we can do a lot about is about actually understanding there’s a space outside being online for thinking and reflecting. And one of the big debates which is a really interesting debate is about experiencing a case by printing it out and reading on paper or taking it in book form from a shelf versus looking at online, looking at an iPad, and is the reading experience different? And is the comprehension different? And that’s a debate that’s happening everywhere at the moment, certainly in education circles, but in the legal sphere I think there’s an important debate. Do you get a different feel from taking a case? I do it with legislation. I find it really good to print out sometimes the whole legislation depending on how long the Act is, but certainly key provisions and have a pencil and sometimes mark things. And the great irony is that even though I do technology cases and I do other cases that are perhaps more ‘digitally native’ to use that terminology, I often have paper. And one of the great things about paper is the ability to navigate paper when you’re absolutely in the zone, you know where things are because you have that third dimension, it’s not just a thing online. So I think there are ways in which the profession can learn together to create better tools to create the online experiences, which is as good as the paper experience. And I think some of the technology that’s evolving in terms of the quality of the monitors, the size of monitors, the idea of the touch screens are an amazing thing and the ability to draw on a page and have that come up in almost real time, so very fast processes, are great. But I think we’ve got a bit of distance to go to think about that. Obviously the answer is yes, we can do all those things, but should we? And is that the best way to go? |
| DT: | I’ve always found when reading a case in a text searchable format, there’s this temptation to say, ‘well, maybe I can just skip forward and search for the phrase that will give me the result and kind of a pithy explanation of why.’ But when you do that, you lose the factual context, you lose the context in terms of the history of decisions that led to that point, and it can be not just a less sophisticated understanding of the principle, but I think you can miss out on opportunities to distinguish a case, for example, if you don’t understand its facts. |
| MG: 16:00
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19:00 | Absolutely. So that raises some really important points. So one is, I think the best model is a hybrid model, where to use your point David, you can use the online materials to jump forward to see if this case of relevance to me? Does it make the right argument? Am I on the right end of the judgement? Has it not been overruled? Can I learn something about it? And can I make with that on my short list? And then what do you do about coming back to better understand the case at that level that allows you to reason from it and distinguish it or say it’s absolutely on all fours. The other thing is, I think there’s a lot to be said for in that analysis to improve the user experience. So some of the things we’ve done in Jade is as you know from the subsequent consideration of the margin that lets you find subsequent consideration of a particular decision. So if you found a decision you think is relevant you can see how other courts and tribunals have considered it, and you can then decide whether or not it’s relevant which can be a very helpful guide to pithy sections and how it’s been considered and the history of it. But there are all sorts of additional things that we can do about how, aided by AI and other things, we can do things with the analysis of decisions. And we’re looking at how we do that, not to supplant legal judgement or not to supplant the professional judgement or the process of writing and creating. But the process of just making sure you don’t miss cases that might be of relevance to you, making sure you don’t miss lines of argument, making sure that when you frame an argument you’re framing it in a way that is better suited to the kind of case law that you want to try to hook into. One of the great things about advocacy and about legal writing and about all aspects of being in the law and advising clients is that kind of creative act and the act of writing and the raw materials that is of course case law and legislation, but it’s also the spark of creativity and with the Internet around, there’s opportunities now to actually get a whole lot of ideas in a lot of different jurisdictions in a whole lot of different areas feed into that so it’s a really exciting time. So you said legal research isn’t exciting as legal tech, I think in a way legal research is absolutely at the very core of legal tech for lawyers because if we don’t solve the legal research challenge, in other words we want to make sure that we are able to find the case law that is actually relevant, that is it hasn’t been overturned and is applicable and the like. So there are all sorts of search problems. There’s also a whole lot of presentation problems. How do you present material that makes it comprehensible and makes it understandable in a way that’s efficient? And then there’s the conundrum that Justice Kirby went on for many years, which is the idea of time billing. Now the conundrum of time billing is that if instead you bill by the job you bill by the number of hours you spend, there’s a disincentive to be efficient. That’s the argument anyway. Because you’re rewarded for being bad at doing research. So you’re better off going to a library, not doing anything online, looking through the card catalogue, spending days in the library. On the other hand, if you said to yourself, well, that gives you more time to refine your arguments and to do things within the envelope of the spend that a client has, then that’s a different question. So again, it’s a framing question, but if you simply take it as that it’s a disincentive, sure, it may be, but on the other hand, the best lawyers use that time to refine the arguments, not simply to find it. |
| DT: | I think often we also use that time to work on more cases and take on a larger caseload, which is not always conducive to producing the best arguments in the cases you’re already working on. |
| MG:
20:00 | Very true. One of the casualties which is really, I think, a real problem for us thinking about the casualties of the digital age, is the decline of librarians. And I think there’s a problem there because, and it’s true in a whole lot of industries, you’ve seen the decline of the technician. Take for example early computers, there were computer operators and there were computer programmers and the computer operators fed the cards into the system and had a very important role to maintain, and there was that interplay between them. And the same with libraries and library technicians. But law firms have generally discounted or discarded many of them, not all of them, many of them have either shrunk the role of the library or made the role library in a different area. But in many cases law firms have got rid of physical library spaces other than the books adorning the entry area to create that impression of the kind of… |
| DT: | Vanity library. |
| MG:
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22:00 | Yeah, that’s right. But it’s a real problem because librarians performed a very important role of educating users about how to use systems and also about making connections between kinds of works and evaluating which I think is an issue that that maybe we won’t notice the effect of the decline of the library in this decade, but certainly decades to come because what’s happening is one of the two things. The first is that we talk a lot about the digital world and online but only a tiny fraction of the world’s legal information has been digitised. So there is a huge amount of material that is still in libraries, locked away, and it requires a different kind of legal research skill to be able to unlock it and to find it. That doesn’t mean we’ll go there every day and need it. But one area that is really interesting in relation to judgments is the idea of forgotten arguments. I mean we’ll talk about this as an idea that there are a whole series of arguments that because of the lack of popularity, potentially of the court, or of the judge, or the facts, or the sands of time, there’s a lot of reasons but there are these arguments that are lurking within the authorities that haven’t yet resurfaced and no one’s come to consider them because the leading case in that particular area is shut off in another area. But there’s a lot of work to be done in sort of finding that kind of material and re-imagining it. Some of the work in feminist legal theory has been to do that, to re-imagine decisions using a different framework and different argumentative framework. I think it is this very exciting idea and I think it shows what can be done by treating the law as a sort of living active creation that comes to be reinterpreted and reinterpreted. TIP: Feminist legal theory has its roots in the 80s. One central idea of feminist theories of law is the pervasive influence of masculine norms on the functioning of the legal system. Taking a new lens to older materials is a useful exercise, because it broadens the relevance of those materials and it can resurface or reagitate older ideas or concepts in a new way. And I think there’s a lot to be said for looking in earlier materials to say why hasn’t that particular decision ever been cited? |
| DT:
23:00 | I think it’s telling that an owner and founder of an online legal research tool is advocating for a mixed approach to legal research. I think there’s a temptation to take the easiest path to volume of authorities, and I’d like to go back to that idea of potency of an argument as well, because it does tie in a little bit with this idea of the lost argument or the forgotten argument. You know, I was always taught that a glass of wine is a better beverage than a glass of wine mixed with a glass of water and less can be more. But I think many of our listeners, certainly I’d count myself among this crowd, have fallen into the trap of thinking, ‘well, I don’t really have all that much time to put these submissions together, I can’t really decide which of these six authorities is directly on point or is the best exemplar of my argument, I’m just going to chuck them all in and we’ll just treat the court like a computer that will pass the information I’ve given it over the next couple of months and spit out the correct answer.’ Do you have any practical tips for our listeners about resisting the temptation to feed data into the machine? To focus on the potency of one’s argument? |
| MG: | I think that’s right, I think less is less is more. I think one of the best disciplines that courts in recent years have imposed has been the limited number of pages and the rules that stop people are pretty right to the edge of the page by requiring a certain size of margins. |
| DT: | There’s a judge who notes in every direction for the trial that folders must not be stacked over capacity. |
| MG: 24:00
25:00 | The same idea exactly. So there’s a great discipline in editing and the other great discipline about editing, which is great for younger lawyers, is it gives an opportunity to write work and then to have someone else try to understand it. So it goes through that process, in editing, of trying to understand so the submissions will get better. So it’s great editing your own material, but often it’s great having someone else that can read material and say does that make sense? What are you trying to say here? And the other thing is that you’ve got a better chance that if you manage to communicate the ideas with someone else in the drafting setting that, this comes back to your point about having enough time, David, but if you come to the point where you can leave enough time for the editing and the final approach, you get ideas through that interchange with other people you know debating about the point. So that’s a great role where if you’re appearing unled and you’ve got a solicitor that could help, that interplay is great and obviously with larger teams it’s great as well, the process of thinking about things works. And then there’s the magic of finally coming to present that material where other ideas spring out from the process. So having a fairly thought-through but limited argument that’s quite precise can be very good. |
| DT: | And that didactic process of discussing the argument with someone, I think we can often lose as we move on from oral submissions and oral argument to an increasingly written form of advocacy. I think often we lose the opportunity to expand on those submissions in in real time argument with the bench. |
| MG:
26:00 | That’s right, and that’s I think one of the biggest problems in the pandemic has been that loss of the immediacy of being in court. I mean, being on a video hook up is obviously in court, and that works from time to time. But there’s something about being in a room with your opponent before a judge changes the dynamic. During the pandemic’s various phases there were different approaches of different courts to online, face to face, limited access, some witnesses by video. So I’ve seen every kind of combination of that and there are horror stories that people have and there are horror stories I’ve had, and there are stories where things have worked. But I think the immediacy of counsel appearing as advocates before the court in the same room is a very important aspect and it’s not just a sort of quaintness. I think it actually reduces the cognitive load on both the bench, which is obviously the critical thing, but also of counsel. Because what happens when you’re on video, and this is something that the recent version of Teams has tried to fix, is you’re constantly looking at yourself and how you’re coming across. So you constantly have one eye on how you’re coming across in your image, and you have another for the court and the like. But there are many many cases where video hearings have been great because it’s really allowed me to have one eye forward and one eye back so I can watch, when I’m in cross examination, I can watch the response of my opposing witnesses if they’re, for example, experts. |
| DT: 27:00
28:00 | One of our earliest episodes of Hearsay was an interview with Talitha Fishburn a barrister, who conducted one of the first trials completely over Zoom, over the pandemic, and she said something similar that there was a real forensic advantage in being able to see a witness up close. That the angle you get on a witness you’re cross examining from their webcam can be a very different one to standing fifteen feet away in a courtroom and it can be an enabler rather than a blocker. TIP: Prior to the COVID-19 pandemic it was commonly accepted that it was better to see and hear a witness in person in order to determine their credibility. The key decision was Campaign Master v Forty Two International (No 3) – we’ll leave the citation in the show notes. Justice Buchanan of the Federal Court expressed that the cross-examination of a witness “might be rendered less effective by the limitations of video link technology” as witnesses weren’t subject to “the solemn atmosphere of a courtroom in the presence of a judge.” After the majority of court proceedings were forced online, this presumed negative of remote evidence was weighed against the ability of the court to operate at all. In Universal Music v Palmer, a decision from 2020, Justice Katzmann expressed that she “was initially sceptical about the effectiveness of cross-examination” online, however, her“scepticism proved to be unjustified.” She stated that she had no problems assessing credit or demeanour, even noting that changes in facial expressions, reactions, bodily movements and gestures were easier to discern when the witness was on the screen with the camera closer to them, rather than giving evidence in the witness box. She also noted that her “experience [was] not unique” among those on the bench. |
| MG: 29:00
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31:00 | Yeah, there’s every argument for and against. And of course there’s the idea that judges can evaluate the demeanour of a witness and the question is can they do it better on video or face to face? There’s a whole lot of scholarship on the use of video based psychiatric hearings, particularly for prisoners, what’s known as ‘pane of glass’ consultation, which of course there’s been debates about it. So in one of the early cases there was an argument about whether or not doctors could give consultations over a telephone. And the question was would that be as effective? Were they as safe as face to face consultations, in certain contexts? So there are those debates that go on about the intermediation technology, is it a good or a bad thing? And as with anything in the law, you’ll find an equal, or probably even if I ask two people, you’ll get 3 answers. It really all depends. But it’s an interesting problem that I think we need to be careful about. And I think one of the problems is that it’s very much impressionistic, so it’s very hard to evaluate it objectively. So it might come down to a preference of the judicial officer or the court or tribunal or the practice of the court or tribunal as to what is there and what isn’t. But in relation to things that now seemed to be traditionally now baked in as done electronically, for example, callovers, directions, lists and the like, they were opportunities, and still are opportunities, for more junior or every lawyer to learn to, to be socialised in the profession and to learn by watching others perform before a judge or before a court. So a person sitting in court waiting for that matter to be called if they’re listing, can learn something about what the judge prefers in relation to what sort of directions should be made or practices and what he or she prefers about the way in which a matter’s to be run. And can also learn a lot about watching arguments, and learn about the craft in making arguments, which you can’t really get in the online world as easily. You can, of course, you can watch celebrity events of various kinds. You can tune into courts to the extent to which they’re open, but you can’t really get that kind of immediacy and feel and you can’t watch the impact. So I think there are real problems for sort of the guild-like training that barristers and solicitors get, and it’s important we need to provide those opportunities where they can watch others work. That doesn’t mean that the others they watch are any better than them, but they watch something good and bad and they can watch them to be able to critique them, which is really important. |
| DT:
32:00 | I’ve certainly heard similar arguments made for the practice of young solicitors and the move away from manual discovery and due diligence processes to technology assisted discovery and due diligence that sort of takes away those opportunities for some young lawyers to learn from those tasks. But I want to move back to a question about legal research and specifically about collaborative tools. Now a lot of our listeners will have used collaborative tools for drafting or settling legal documents, I’m thinking of Google Docs here or even a Microsoft Word shared document in Office 365, but there are collaborative tools for legal research as well. Can you tell us a little bit about those and what they’re suitable for and what they’re not so suitable for? |
| MG:
33:00
34:00 | So one area of having collaborative tools is the idea that people can create a collection of cases. So, list of authorities is a good example. The collection of cases for a particular matter, or a go-to list of cases in particular subject areas. And firms can then share those, and barristers can share those with others in chambers as sort of a starter set of cases that might assist people. So the collaborative approaches to tag the case, they could also markup cases with commentary within the case at the paragraph level, or even a single word level. So some more seasoned users of marked up PDF and the like do that. So I’ve been in matters where juniors have provided me with cases marked up with key shadings in the case to save time and key holdings and the bit of argument that the junior thinks we should take forward in the argument. So it’s a very handy thing. So that it’s able to be shared electronically, it remains there. One of the things in Jade that we did is we allowed those annotations and you can share those annotations as I’ve said, but we can make those annotations float over the top of a decision. So if you had a key decision in a particular area of law, just before you use that case the same markings would sit there, but you could see if the case had been recently considered. So you’d be able to look down through the case where your markings are, look at the margin comments, what we call atJade, clips, to see whether that part of the decision had been considered in later decisions, and that might mean that you then add additional authorities, or you might even add an additional authority to substitute for the authority. So you can go through that process of creating that list. The collaboration then means that you can tag, you can collaborate, you can share in groups and you can also then use it to search. So using the search system that we’ve got, that makes it possible to collaborate. So there are all sorts of things that we’ve got planned for improving collaboration, but it’s an important part of legal research and it really reflects the fact that someone might do a first cut of authorities that are relevant and then someone else might look at it and you can call that up, you can mark it, you can have a discussion about it and you can mark the parts you think are relevant or not and have that debate. |
| DT: | Similar kind of approach to drafting a legal document to drafting a contract or a set of pleadings, but also it creates that opportunity for what you were talking about before, for having discourse on a submission and discourse on a case before you rely on it. I think that’s a really powerful feature. |
| MG:
35:00 | So in terms of how we do that, so obviously what we’re talking about collaboration, the sort of commentary and the like is obviously very sensitive and can be very sensitive to client matters and is confidential, so we have systems in place that encrypt that and encrypts that at different levels, so a person can have it so that that those comments are only available if someone unlocks the document or unlocks the particular comments. Or they can be open to the entire team or open only to the individual. All that has a process of encryption that means it’s never searchable otherwise than with the user that has that material available to them. So we’ve got systems able to do that, so the tagging works that way as well. And the other thing we do in terms of reflecting the fact that we have privacy by design rather than retrofitting privacy considerations is we make sure that we don’t log precedent. So we don’t log searches, we don’t log what people search, so there’s no sort of back way in which people can find that material. We don’t obviously log all sorts of things that mean that we try to make sure that if someone has confidential information on the system, it’s not available to anyone else. |
| DT: | So those kinds of risks of collaboration are pretty well protected there by the design of the feature? |
| MG:
36:00 | That’s right, I mean, there’s always the risk of someone looking over your shoulder, I mean of the user. But that comes down to good practices in terms of access, and there are other methods for dealing with that. In other words, the number of people that, for example, look at material on a bus or train as confidential or have conversations on buses and trains or in lifts or elsewhere, that’s not something that we can… |
| DT: | No, you can’t do much about that. There’s that remarkable insider trading case about a piece of market sensitive information collected sitting next to one of the target company’s executives on a train that then led to some suspicious trades. But yes, I suppose there’s all of the technical privacy and confidentiality and cyber security features you can install that human error can always defeat all of them. Speaking of the collaboration tools that are available on Jade, have you noticed that there are any really useful features of Jade or perhaps other legal research tools that you’ve seen but lawyers just don’t seem to use, or don’t even know are there? What are those features and what are they missing out on if they’re not using them? |
| MG: 37:00
| So if we talk about time saving there are features within Jade, for example, that allows people to copy and paste citations. They’re probably missing it because we’re not very good at communicating the interface, so that’s a challenge for another day in terms of improving the interface, but there are all sorts of time saving ideas where you can export material. So you can export lists of cases, you can upload lists of authorities or arguments within Jade. So one of the biggest timesavers that certainly I use all the time in Jade professional is the ability to upload my submissions into Jade, which then checks the citations are correct. And also produces a list of authorities for me. So if I upload a Word document, it gives me a list of authorities that are all the cases and all the legislation referred to in that document and validates it. It also gives me a version that allows me to click, so if I use, as we all do, pinpoint citations, so if I say, ‘2021 HCA 1 at 39 in square brackets, then I can tap on the [39] in the uploaded version, and it looks like it’s a Jade experience. So it will pop up that paragraph. |
| DT: 38:00 | Wow! |
| MG: | So I can do very quick checking to make sure it’s right. I know a lot of academics use it to check things before they submit it for publication. And a lot of authors use it and certainly a lot of lawyers use it, so it’s a very handy time saver and the list of authorities is really handy because then I get a whole list which I can copy and paste in so I don’t have to type up a manual list and it will have the citations in there as well. |
| DT:
| That kind of dynamic responsive document that you’re describing where you can, whilst reading through a set of submissions, view the pinpoint reference that you’ve described. I mean, that does sound very useful for checking that the submissions are correct before you’ve submitted them. It actually sounds quite useful for the in-courtroom experience or the reading of those submissions by the judicial officer. Do you think that these tools are similarly taken up by the bench? Are they being adopted? |
| MG: 39:00 | They are. So I know that many, well, a number of judges use this kind of thing, but if the submissions are made. Both sides’ submissions can be uploaded and you can check the validity. And of course you can check your opponent’s, your opponent gives you submissions electronically, you can check them, you can see where that citation’s wrong or that case is a first instance case that’s been overruled. So you can save a huge amount of time. So the old technique of ‘hand up and stand up’, this is the new submission by ambush, where you can save a lot of time doing it through that process where you can check it. So yes, a lot of a lot of courts and tribunals are using that and they find it useful. And with this kind of confidentiality they can also check the citations in judgments and check that they’re right just before they publish them and check they’re correct. I mean there are obviously reasons why courts have security requirements about that, but there are ways to do that confidentially. So yeah, it’s a huge time saving. It’s a huge timesaver for associates and the like as well. |
| DT:
40:00 | I didn’t know that feature existed and I’m a Jade user so I will have to use that in the future. Now nice softball question for you Michael, AI. We’ve talked about the Internet as this great leveller in legal research and your personal experience of seeing that as BarNet brought the Internet infrastructure to barristers around Australia. Do you think AI will be as much of aleveller in legal research? What’s its place in legal research and what do you think its limitations are? |
| MG: | AI is the sort of thing that everyone says, ‘oh we’re AI powered.’ You know the table stakes for any invention if I heard another person say this is powered by AI. I mean that that’s like saying it’s cloud powered. It’s a term that is so broadly used as to be meaningless. So there are fifty, a hundred different ways, or many even more than that, ways in which what is broadly known as artificial intelligence can be used. |
| DT: | Yeah, are we talking about algorithmic functions? Are we talking about machine learning? Are we talking about assisted machine learning, or unassisted machine learning? All of these things. |
| MG:
41:00
42:00 | That’s right, there’s a ton of them, so that if we’re talking about the idea of a human assisted reasoning, if you talk about that kind of more broad concept, then absolutely it’s already here. So in a way search itself is a form of artificial intelligence because it allows you to cover a whole much wider search space then you’d be able to do by flicking a finger. You know if you went into a library and wanted to search ten million records, it would take you a very long time and you would have very sore fingers. So you can do that. So the opportunities are huge. So in a way AI just becomes a marketing term and everyone’s doing it. TIP: Artificial intelligence is relatively new in the practice of law and its place in the industry is poorly understood. According to a study conducted by American law firm Thompson Hine, over 90% of people who work in law firms don’t think their firm uses AI. However, as Michael points out, AI is being used extensively in the legal industry already. You may not be interacting with legal AI like you do with Siri or Alexa, but there is a substantial list of machine learning applications that already assist lawyers streamline specific tasks. The general areas that AI currently works in include:
If we’re talking about the really interesting stuff where we try to understand legal knowledge and how legal knowledge is represented, then there are really interesting evolving models that are machine learning and are forms of computational linguistics and those sorts of things, and so that’s, I’d call that AI. And that’s really exciting, but the reality is that the kind of work that’s being done on conversational kind of search, so the examples are, ‘what happened to Roger Federer?’ And then it’s the contextual knowledge that allows for an answer to be given that passes the Turing test, so to speak. Those sorts of evolutionary things are really happening in law. One of the concerns, I think, is the idea which is the ‘law is code’ movement is the belief that you can reduce law to a code. |
| DT: 43:00 | …that you can reduce legal reasoning to a kind of ‘if else’ statement to produce a just outcome. |
| MG:
44:00
45:00 | So the two things about that make it exciting, the starting point is the idea that all legislation can be written as “code.” So to use your example David, a series of logic statements. Now, in theory you should be able to do that, because legislation should be sufficiently clear and unambiguous to do that. But as we know, the creativity of the law is in not making it like that, and definitions and the like, and there’s complexity about it. The second area, which is really, really interesting and really I think concerning, but it’s not legal research it’s a bit more broad than that, but it makes for a more interesting point, is the idea of judicial discretion, so comes up in sentencing and the like, so can computers undertake or perform discretion better than humans? And two answers there, one is just the horror of the idea that we cede our liberty to a computer making decisions about sentencing, for example, or other kinds of discretionary challenges. But that’s been happening in the robodebt area and elsewhere, where deemed decisions are being made algorithmically, so it’s not even as advanced as AI in the more outlandish sense. But there will be a whole lot of really interesting discussions about that. One thing I want to just say about that is something that Genevieve Bell said in certainly in one of the presentations she made to one of the human rights conferences and that was the fascinating point which we often overlook is that ’all search is deterministic.’ The point being can you uncover, as a matter of theory, can you uncover from search anything that is not already known? So if we put all of our eggs in the basket of search and of predictive analytics that are using the past to predict the future, are we shackling ourselves into a reality that can’t grow? It’s a really fascinating problem and it does inform the question you asked. I mean, it’s a long way back to the question, but it does inform the question you asked because if we say that that is a fundamental failing of AI because its creation of algorithm which in turn is deterministic, putting aside whether genetic algorithms can be deterministic or not, that’s an interesting problem, but just taking it deterministic, accept that as a premise, then do we really want AI to be part of our legal research? |
| DT: | …because it’s incapable of doing that casuistry that is really essential to research in the common law jurisdiction. To take an inapposite case, one that is sui generis and say, well, is it more like A or more like B, or is it in another category? |
| MG:
46:00
47:00 | Precisely. And we then get all these orphans in cases that are overlooked because they don’t come up in search and don’t get processed. The other thing about that, of course, is that maybe we do embrace it, but we just need to be very clear about the shortcomings of AI in legal research so that we actually have a shared understanding of why it’s good or bad. And that comes back, just tie it all back together, that comes back to the earlier point about librarians, in all of this, librarians were often the gatekeeper that could actually inform that kind of decision. Because they’re about the process of research and not about the outcomes of research so they had the time to think about the shortcomings. And so are we setting ourselves up to fail by not having that kind of meta level discussion about what are the limits and how should we perform legal research? Which you know is a topic we could do a whole series on that area, but it’s a really interesting problem and I mean, I’ve obviously reduced it to a very simple series of sound bites, but it’s a real problem. And it’s a real problem because we may blind ourselves, we may put blinkers on that we don’t see. So an example is overtime the terminology used in catchwords has changed. And so, if we’re mining the archive of catchwords, we need to try to link up the use of earlier language into modern language if people are searching. So one thing is a search with AI gives rise to semantic search of various kinds. That means you can search a concept rather than a phrase, so that’s probably a good thing. On the other hand, you might go down the wrong line. One of my favourite things in university was seeing how political cataloguing is. There were whole areas of social theory that got catalogued in particular ways, and then were a dead end. So as trends changed and as areas of social theory moved into different areas like German social theory moved into sociology from some other area, cataloguing systems just lost them so that an attempt to create this taxonomic world leads to these kinds of debates: should this fit in this slot or another slot? And does that make for better lawyering? Does that make for better evolvement of law and the role of law in society? It’s a really interesting problem. |
| DT:
48:00 | I mean I think it’s as you said before that for each of our listeners weighing up their options to conduct legal research and to choose how they how they practice, it’s finding a balance between the efficiency and scalability of the legal research and legal tech tools that are available to them, because as you said, there is a confluence of those two fields. Finding a balance between the scalability and accessibility and efficiency of those tools and the deep thought and original thought that manual research and a slower approach to legal research, I suppose, might yield. But before we finish up, Michael, if there’s one thing you wanted our listeners to take away from this episode in terms of a practical tip about legal research, what do you think that would be? |
| MG:
49:00 | I think it would be to learn to use more than one legal research platform so you can get a feel for what works for you. And then take the time to read decisions in full, just a few of them, just occasionally. So one of the ways that you can see in terms of legal research, not only the search, but just think about browsing. So spend some time browsing recent cases in a number of areas to get a feel for how the law is evolving and certainly read what the High Court says about anything, about everything that comes out for the High Court as much as you can read and anything that from intermediate appellate courts just to get a feel for how the law is changing. And the reason for doing that is that even though you might not be practising that area, you’ll see a coherence and commonality between ideas in those cases and in other areas of your practice and you’ll actually say ‘Aha! Now I see how that works.’ It will be a subtle process. It may take five, ten years to soak in, but certainly you’ll get a much greater knowledge of the law and a feel for how the law works and you’ll be able to then become more intuitive in giving advice. |
| DT: | Well, it’s certainly been a comfort to me and I think to our listeners as well interviewing someone who’s really at the cutting edge of legal research technology that there is still room for a slower, more human approach to legal thinking and legal research. So, Michael, thank you so much for joining us today on Hearsay. |
| MG: | Thanks very much David. |
| DT: 50:00
51:00 | You’ve been listening to another episode of Hearsay the Legal Podcast. I’d like to thank my guest today, Michael Green from level 22 Chambers, for coming on the show. If you’re an Australian legal practitioner, you can claim one Continuing Professional Development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is, as you know, self assessed, but we suggest this episode entitles you to claim a professional skills point. More information on claiming and tracking your points on Hearsay can be found on our website. Now, even though there are less than three weeks left to go to get your CPD points, I know that you’re going to be OK. After all, you’ve got your Hearsay subscription to get all of those points whenever you like but, you know, not everyone’s so lucky. You probably work with or know a lot of lawyers who are still sitting through seminars, reading bullet points off PowerPoint slides. Give them the code ‘referee2022’, that’s ‘referee2022’ to enter at the hearsay checkout and they’ll get 25% off a new subscription. Hearsay the Legal Podcast is brought to you by Lext Australia, a legal innovation company that’s out to change how you experience the law and legal services, including CPD. Now before we go, I’d like to ask you a favour, listeners, if you like Hearsay, please leave us a Google review. It helps other listeners find us and that keeps us in business. Thanks for listening and I’ll see you on the next episode of Hearsay. |
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