Tipping the Scales (WK12)

In this blog, I identify two ways the legal profession can help bridge the digital divide.

With the onset of the information economy and its many benefits, there has also grown an increasing impediment, that of the digital divide (Paliwala, 2004). Whilst generally defined by reference to differing access to information technology such as computers, phones and other Internet-related technology by nations, there are really three different dimensions to this divide (Paliwala, 2004). The first (and most popoular) is the “global divide”; the difference between the access that industrialised and developing societies have to the Internet (Paliwala, 2004; Flew, 2008). As the video below shows however, this divide can also be intra-national as well as international.



The second is the “social divide”; the gap between information rich and poor nations thus affecting their social engagement (Paliwala, 2004; Flew, 2008). The final aspect of the digital divide is the “democratic divide”; the gap arising within the online community between those who use digital resources to participate and those who do not (Paliwala, 2004; Flew, 2008).

This digital divide can not only be observed from an international perspective, but also within certain industries such as the legal profession. In particular, with the recent technological advancements in legal tools in courtrooms such as interactive multimedia presentations and electronic case files, one would not be blamed for thinking that this would create a chasm between large well resourced firms and smaller ones (Heintz, 2002). However, whilst larger firms may in fact possess more resources and of arguably a better quality, this does not necessarily translate to instant legal success (Heintz, 2002). As Heintz (2002) put it, “Using technology in a courtroom does not depend on resources as much as it depends on intelligence” (p.582).

In fact, smaller legal firms are more likely to be better equipped to deal with technology as they cannot rely on tech departments to do it for them but must learn themselves (Heintz, 2002). Courts are also helping bridge this divide. First, they are beginning to cap the cost of equipment that lawyers may use in courts and secondly, they are making equipment accessible to all lawyers (Heintz, 2002). All these efforts have resulted in (and will continue to) ‘level the playing field’ for lawyers of all financial situations and bridge the digital gap (Heintz, 2002).

Another way the law is bridging the digital divide is in regard to the “democratic divide” defined earlier. With traditional copyright laws, user generated content and ‘prod-user’ participation has been limited or hindered (Seshadri, 2007; Flew, 2008). However, in recent years the law is beginning to adapt to the surge in user generated content and creative industries are beginning to harness this for their own benefit (Seshadri, 2007). In particular, the courts are increasingly favouring implied licenses to reproduce content such as in the case of Field v Google (2006) where verbal consent need not be granted (Seshadri, 2007). The recent birth of the Creative Commons and its easy-to-read pre-written licenses is also bridging the gap between audiences and intellectual property (Seshadri, 2007). What this means is that for the growing number of active audiences and prod-users who are outnumbering their professional counterparts, content sharing and participation is being broadened in its accessibility, bridging the digital gap and paving the way for more collaborative Internet architecture (Seshadri, 2007).

Though lawyers, the courts and the law are implementing measures to bridge the digital divide between large and small legal firms and the “democratic divide”, there still remains a significant “social divide” amongst most law firms; not between rich and poor however, but between technophobes and technophiles (O’Keefe, 2009). Lawyers, who have long had reputations for being “laggards” when it comes to technological innovations, are still largely reluctant to use digital technology to socially engage their publics (O’Keefe, 2009). What this has meant is that there has developed a gap between more web-literate law firms and those still stuck in the past (O’Keefe, 2009). As O’Keefe (2009) said in his blog:

Web-savvy communication professionals don’t want to work with handcuffs on and with people who don’t understand social media. The 45% of law firms blocking the use of social media and social networking mediums like Twitter and Facebook are going to attract no one who knows anything here.

This divide is becoming detrimental to these more traditional law firms being left behind (O’Keefe, 2009). And if they don’t update their communication techniques soon and use the digital technology available to them to engage their clients socially, the “social divide” between them and their competitors will only continue to grow (O’Keefe, 2009).

References

Flew, T. (2008). New Media: An Introduction (3rd ed.). Oxford University Press: UK.

Heintz, M.E. (2002). The Digital Divide and Courtroom Technology: Can David Keep Up With Goliath? Federal Communications Law Journal, 54(3), pp.567-590.

O’Keefe, K. (2009, November 23). Divide grows between lawyers with and without digital influence. Retrieved 5 April, 2010, from: http://kevin.lexblog.com/2009/11/articles/social-networking-1/divide-grows-between-lawyers-with-and-without-digital-influence/

Paliwala, A. (2004). Digital Divide Globalisation and Legal Regulation. University of Technology, Sydney Law Review, 2.

Seshadri, R. (Fall 2007). Bridging the Digital Divide: How the Implied License Doctrine Could Narrow the Copynorm-Copyright Gap. UCLA Journal of Law & Technology, 11(2), pp.1-36.

Bar by Blog (WK8)

In this blog, I discuss in what ways the growth of participatory culture and interactivity has changed legal practice in recent years.

The onset of the Internet has had a vast effect on legal practice, amongst other things affecting the way lawyers communicate with their clients and the world in general (Blades & Vermylen, 2004). What this has meant for the legal profession (and many other professions for that matter) is that lawyers are able to interact with a global audience with newfound speed and interactivity (Blades & Vermylen, 2004). Thus, "technolawyers" have been set free and enabled to practice law in new and exciting ways (Kellogg, 2005). So what does this interactivity entail and how is it different to other means of communication?



Well, as the above video shows, interactivity pervades the range of media we have access to. As Flew (2008) summarises, interactivity is about “not just sitting there passively in front of a display screen” (p.29); interactive media does not just engage the user, but does so in such a powerful way that the user is independent and their usage is individualised, enabling them greater choice and communicative feedback. One of the prime differences between turning a page of a book and clicking with a mouse is this greater amount of choice and participation due largely to the rise of hypertext and the hyperlink (Katsh, 1994). In other words, rather than being merely a receiver, a user is engaged as a participant in two-way digital media-mediated communication; interactive media demands multi-directional models of communication (Kenney et al, 2000).

One of the increasingly prevalent ways that lawyers are using this digital communication to interact with audiences is through legal web logs, or "blawgs" as they are colloquially called (Kellogg, 2005). This what McMillan (2005) describes as user-to-user interactivity; one of three ways media can be interactive. This media not only allows lawyers to communicate legal opinions and advertise their services in personable and personal ways, but also facilitates the laity to participate in legal discussions by correcting, rebuking or adding to them, involving the lay person in the defining and articulating of what the “law” is exactly (Kellogg, 2005). Far from computers simply automating the process of legal information, through media such as blogs they have “informated” legal information so that simultaneous to the processing of information, new information is generated (Katsh, 1994). But, is there a dark side to this seemingly empowering tool?

There have arisen some rather serious ethical concerns as a result of this new interactive and participatory media (Blades & Vermylen, 2004). Whereas before the rise of the Internet (and particular Web 2.0), lawyers were the gatekeepers of their profession, nowadays anyone can engage and participate in legal discussions, and ultimately, give advice (Blades & Vermylen, 2004). Anyone can be a “lawyer” so to speak. Thus, the ethical concerns are obvious; how do you regulate the growing array of legal opinions available on the ‘Net? How do you know the legal advice you are receiving on the Internet is correct or relevant (Blades & Vermylen, 2004)? As Blades and Vermylen explain:

One of the dangers of online legal communications is that the
[lawyer]-client relationship may be formed...in different jurisdictions, with or
without the knowledge of the [lawyer], resulting in the breach of the ethical
rule prohibiting the unauthorized practice of law. One common way that legal
advice is provided over the Internet is through Internet chat rooms [and
increasingly blogs] offering online forums for...conversations that are
interactive and open to the public (p.640).

That said, perhaps the solution to this interactivity problem is in the increase of the interactivity itself. As participation and collaboration increases, one would assume that the level of critical moderation and peer review would also increase which would regulate and moderate false or confusing information on the Internet. This brings us to the numerous other benefits of interactive online legal discussions such as increased confidence to discuss due to anonymity, protecting laypeople from being oppressed or taken advantage of, and increasing the level of engagement and accessibility to legal information by those geographically or economically isolated (Blades & Vermylen, 2004).

Another interesting way lawyers and those in the legal profession are using interactive media is in the court room. Whereas traditionally, linear modes of communicating evidence and case information were favoured, in recent years there has been a rising tendency for lawyers to utilise more interactive modes of communication (Carney & Feigenson, 2004). Lawyers are abandoning conventional means of communicating like mere oral, PowerPoint and display software presentations in favour of more interactive programmes; programmes which can be customised, individualised and provide an optimum amount of choice at the click of a mouse (Carney & Feigenson, 2004).

In an American case, Connecticut v Skakel (1992), the prosecution developed and used such a programme (Carney & Feigenson, 2004). This programme enabled evidence to interact with each other; geographical maps interacted with charts and photos, and images interacted with audio; it was all an example of converging interactivity (Carney & Feigenson, 2004). The benefits to this new interactive multimedia approach, as Carney and Feigenson (2004) argue, was that it clarified, captivated and convinced the jury due to its ability to speak in terms the audience can understand. I can easily foresee the next step in the development of this recent approach being to move from restricting interactivity solely to the lawyers and allowing the jurors and lay people to also interact with the evidence at their will. And what an effect that would have on court cases!

Whether you are a technophobe who thinks that the possible harm caused by interactive legal media like blogs outweighs any positives, or you are a technophile who feels excited by the empowerment that this new media has given the individual and its breakdown of communication barriers in recent years, you have to agree that this growing use of blogs is not merely a fad that is going away anytime soon. Hornsby Jr. (2005) suggests perhaps this is due to the ability to express oneself that media like blogs give to the individual; the source of identity it provides; because when given the chance, people by nature love to participate, pontificate and express their individuality. And as Hornsby Jr. (2005) reminds us, lawyers are people too.

References

Blades, M. & Vermylen, S. (2004). Virtual Ethics for a New Age: The Internet and the Ethical Lawyer. 17 Georgetown Journal of Legal Ethics, pp.637-658.

Carney, B. & Feigenson, N. (Spring 2004). Visual Persuasion in the Michael Skakel Trial: Enhancing Advocacy through Interactive Media Presentations. 19 Criminal Justice, pp.22-36.

Flew, T. (2008). New Media: An Introduction (3rd ed.). Oxford University Press: UK.

Hornsby Jr., W.E. (July/August 2005). Ethics and Lawyer Blogs. 31 Law Practice, pp.38-39.

Katsh, E. (1994). Digital Lawyers: Orienting the Legal Profession to Cyberspace. 55 University of Pittsburgh Law Review, pp.1141-1174.

Kellogg, S. (July/August 2005). It’s Not Your Father’s Web Site: Lawyers in the Blogosphere. 31 Law Practice, pp.32-37.

Kenney, K., Gorelik, A. & Mwangi, S. (2000). Interactive Features of Online Newspapers. First Monday 5(1). Retrieved 9 March, 2010, from: http://firstmonday.org/issues/issue5_1/kenney/index.html

McMillan, S. (2005). ‘Exploring Models of Interactivity from Multiple Research Traditions; Users, Documents and Systems’, in Lievrouw, L. & Livingstone, S. (eds), Handbook of New Media (2nd ed). Sage: London, pp.205-229.

Transmedia Trials (WK6)

In this blog, I discuss how transmedia storytelling applies to legal practice.

If you flicked on the television recently, you’d notice there has been a recent trend in the sort of popular prime-time TV shows being broadcast. No, I’m not talking about bad quiz shows. What I am talking about are shows that deal with courts, lawyers and the legal process – TV shows about the law. Be it witty sitcoms like Boston Legal and Judging Amy, serious dramas like Law & Order and CSI, or “reality” shows like Judge Judy and People’s Court, shows about legal practice have become a popular mainstay on the viewer’s TV diet. But why is this? Well, I think one of the main reasons this genre has grown in status is that people are now realising and appreciating that the law, ultimately, is about stories. At the heart of each court case and law suit are all the essential qualities of an interesting narrative; protagonists, antagonists, conflicts, twists, a climax and a resolution (Eskridge Jr., 1994). It is no wonder then that these stories are increasingly being told transmedially (such as through print, film or gaming media) and hence influencing legal practice; and in particular (as we will later see), legal education.



The above video does quite a good job of succinctly summing up what transmedia storytelling is. Transmedia storytelling is commonly associated with and utilised by franchises (Dena, 2004). You know, ones like Star Wars, Harry Potter and Batman; ones where different aspects of what new media theorist Henry Jenkins calls “storyworlds” are communicated through different media and channels (Dena, 2004). As Jenkins (2007) asserts, this media synergism conveys fictional stories; fictional stories which, as afore stated, include legal fiction.

So what effect does this transmedia storytelling of legal fiction have on the legal practice? Well firstly, it conveys stereotypes and legal information to its audiences which are not always true or real. For example, as Asimow (2009) humorously recounts, “My barber told me recently that he was part of a jury panel that was being questioned by the lawyers. A defense lawyer asked a juror whether one police officer would lie to protect another officer. ‘Of course,’ the juror replied, ‘I’ve seen it on television many times.’” We may laugh at this, but we all know that this is the world we live in.

Legal stories are not only played out in courts, but TV shows like Law & Order and CSI also recontextualise, appropriate and retell them through their own various media (Asimow, 2009). One only needs to remember such infamous court cases such as OJ Simpson or the more local Ivan Milat which was appropriated and recounted in the film, Wolf Creek. Because of this, lawyers and those in the legal profession need to be aware of this prime example of cultivation theory where the worldviews of audiences of a particular storytelling medium (primarily television) are shaped by the worlds and “realities” depicted through the stories conveyed (Asimow, 2009). Lawyers need to understand what information and prejudices their clients are likely to know and what media they got this information from for the legal machine to run effectively.

Secondly, and more interestingly, transmedia storytelling is being developed to train legal students and those inexperienced in legal processes such as jurors. Lettieri and Faro (2008) discuss the emergence of what they call “legal serious games”; simulated legal scenarios such as trials and negotiations, capitalising on the highly participative nature of transmedia storytelling (Flew, 2008). This transmedia interaction involves legal scenarios, cases and stories being conveyed to the user through a variety of media such as virtual games, videos and traditional text (Lettieri & Faro, 2008). These distinct media all combine, converge and interact with each other to not only teach the user theoretical legal concepts, but to allow the user to provide feedback and hence learn how to apply this knowledge through tests and errors within the safety of a simulated environment (Lettieri & Faro, 2008). As a law student, I find this an exciting new direction for legal education.

Finally, transmedia storytelling is affecting legal practice in relation to the area of intellectual property law. Not all transmedia storytelling is performed by the owners, creaters or providers of the transmedia content. In fact, an increasingly large amount of transmedia storytelling is done commonly by the users, consumers and audiences themselves. As Bolin (2007) explains, with transmedia content becoming more fluid and audiences becoming more dependent on the means of consumption, the providers of this content are finding it increasingly harder to control and copyright their content, specifically their popular character commodities like the Simpsons, Batman and Winnie the Pooh.

As a result, two things are occurring. Firstly, the laws and regulations regarding ownership, use, access and payment for transmedia content are becoming stricter (Flew, 2008). The second is that providers of content are now negotiating with, collaborating with and even owning means of consumption such as Apple with iTunes and iPods (Bolin, 2007). What this means for the legal profession is that with the rise of transmedia storytelling by the public, we are heading into unchartered territory regarding trademark law and lawyers will need to re-examine and possibly re-adjust the laws to suit this new creative and participatory age.

Whether legal stories (not always fiction) are popularly being told through TV, film and print media, or being told through serious games to train legal students, transmedia storytelling is having an effect on modern legal practice. Even the broad area of general transmedia storytelling has an influence on the law itself in regard to law reforms and new regulations. But no matter how transmedia storytelling is affecting legal practice, one thing is certain; this disclosure of the law through media to the layman will be sure to keep lawyers busy and their pockets padded.

References

Asimow, M. (2009, May 25). “The Cultural Impact of Law on Television”. Paper presented at the annual meeting of the Law and Society Association, Grand Hyatt, Denver, Colorado. Retrieved 22 February, 2010, from: http://www.allacademic.com/meta/p302114_index.html

Bolin, G. (2007). Media Technologies, Transmedia Storytelling and Commodification. Retrieved 22 February, 2010, from: http://www.technocult.se/files/13%20Convergence.pdf

Dena, C. (2004, October 1). Towards a Poetics of Multi-Channel Storytelling. Paper presented at ‘Critical Animals’ postgraduate conference, ‘This is Not Art’ Festival, Newcastle, NSW. Retrieved 18 February, 2010, from: http://www.christydena.com/Docs/DENA_MultichannelPoetics.pdf

Eskridge Jr., W.N. (February 1994). Gaylegal Narratives. 46 Stanford Law Review, pp.607-646.

Flew, T. (2008). New Media: An Introduction (3rd ed.). Oxford University Press: UK.

Jenkins, H. (2007, March 22). Transmedia Storytelling 101. Retrieved 22 February, 2010, from: http://www.henryjenkins.org/2007/03/transmedia_storytelling_101.html

Lettieri, N. & Faro, S. (2008, June 23-24). Seeking models of interaction for legal serious games: the transmedia paradigm. Paper presented at ‘Serious Games on the Move 08’, Cambridge, UK. Retrieved 18 February, 2010, from: http://test.isfol.it/DocEditor/test/File/Lettieri_Faro_Seeking_models_of_interaction_for_legal_serious_games_.pdf

"I Object!" (WK4)

In this blog, I consider the concept of "convergence" and think ten years in the future. How will the legal field be different and what role will convergence play, if any, in this work?

Let’s face it; we humans are pretty lazy when it comes to doing anything. We will always choose the option which requires the least amount of effort, time and brain cell stimulation. This applies doubly when it comes to our technologies. With the increasing demand that we humans have for our technological equipment to be efficient, cheap and compact, is it any wonder that the current trend in the development of technology is toward convergence (Zetie, 2004).



As the above video shows, contemporary convergence tends to lean toward the small and compact. But just what is convergence? Put simply, convergence is where different types of information technologies, communication channels and media are fused expediently together into one device (Flew, 2008; Wind & Mahajan, 2002). In response to the common desire of consumers to have one single platform which can perform a variety of functions that separate multiple devices can do, technology driven by success is inclined to convenience in size, price and use.

As Sinrod (2010) humorously explains, “When I first started writing on tech issues, in the late-1990s, I was much like ‘Inspector Gadget’ – I had a different device for every conceivable function, because I wanted it all...I dreamed of the day when all of this technology would come together, and it has beyond expectation. Now, our PDAs do it all.”


But what implications does this have on lawyers around the world? Well, as an interesting article by Richard Granat from 1998 explained, lawyers tend to be slow in adapting and adopting new technology trends. It is arguable whether much has changed in over 10 years. Why this article is so interesting is because it was written before the Internet had yet taken off for common use in legal practice. In 1998, extensive databases for legal cases and articles were something of the future, yet Granat predicted their huge implications on the practice of lawyers; even on the value of lawyers themselves.

The law has traditionally been based in print media, and as such, lawyers had the exclusive role of being highly skilled navigators of this large storage of information. This kept the average person on the street from being able to access this legal information. In other words, it contributed to the need for lawyers. But in the current age where all this information is converged with digital media, this legal information is readily available digitally (and for FREE!) to anyone with a computer and Internet access. What this means is that with one easy search and click, lawyers, Granat predicted, will need to adapt to this breakdown of professional barriers otherwise they may become something of the past.

Granat (1998) further predicted that if lawyers do not adapt, they may very well become a victim of disintermediation within the next 10 years. This basically means that the involvement of lawyers, who have been the mediators so to speak between the laity and the law, will no longer be needed in this transaction due to the digitalisation of the law. Whilst this will remove legal services that are replaceable, conversely and potentially beneficial, it will give those legal services which are irreplaceable more consumers (Granat, 1998).

In respect to the convergence of other technologies, Granat (1998) makes a rather intriguing prediction about its effect on legal practice. I say intriguing because, as a law student, I have not yet seen, read or heard about this sort of convergence of technologies being used currently in the field of law. But its probable future use within the next 10 years excites me. Granat (1998) explains that with the convergence of video, Internet, text and audio, legal documents have the potential to become fully interactive multimedia documents. These “smart” documents would be able to customise themselves to the reader, generating different forms and documents based on the user’s decisions. It will also incorporate multimedia files such as audio and video to teach the user about the law and record their scenarios as potential evidence, generating appropriate forms in response. Granat (1998) notes the small-scale use in small kiosks back then, and one can only anticipate the growth.

That said, part of the reason why this convergence has not caught on yet may be explained by users themselves. As Wind and Mahajan (2002) argue, convergence can mean much more than merely the synthesis of different technologies; it also has very much to do with the consumer themselves. As they argue from quite a volunteeristic paradigm, consumers and users of technologies shape the ways that technologies converge, finding and learning new ways to use the combined technologies which can now interact with each other (Wind & Mahajan, 2002). As Zetie (2004) observes, “Despite the rush to write obituaries for one format or another, I remain convinced that the market still needs diversity, not homogeneity. I believe that different variants will appeal to different people according to their needs.” The success of a convergence of technologies depends largely on the needs of consumers, thus one of the reasons these multimedia legal documents have been slow to catch on is that the legal clientele do not need them or are satisfied with the status quo. Nonetheless, I think it is only a matter of time before this changes.


Granat (1998) concludes by encouraging lawyers, who are in the business of communication, to learn new skills in converging electronic communication. As a law student, I can say that at least at my law school, this is fortunately being implemented for future lawyers. We as students are constantly encouraged, taught and instructed to use electronic legal resources. This will no doubt come in very handy later on.

References

Flew, T. (2008). New Media: An Introduction (3rd ed.). Oxford University Press: UK.

Granat, R.S. (1998). Re-Training Lawyers for A Digital Age. Retrieved 7 February, 2010, from:

Sinrod, E. (2010). The Decade of Technology Convergence. Retrieved 7 February, 2010, from:

Wind, Y. & Mahajan, V. (Spring 2002). Convergence Marketing. Journal of Interactive Marketing, 6(2), pp.64-79.

Zetie, C. (2004). Convergence or Divergence: What’s Next for Mobile Devices? Retrieved 8 February, 2010, from: