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PROFESSOR
ROBERT BERRING: I long
ago learned that if I don't move around, I'll become boring
to me. And I absolutely guarantee that if I'm boring me,
I'm boring you. So, the only danger here is that I won't
be looking at the moderator because I've authorized Mary
Kay to throw a glass at me if I run long.
Looking at the panel
that's going to speak to you all after the break, I feel
like an opening act to the Grateful Dead concert. You've
got the heroes coming on after the coffee break. But what
I would like to do is give you a few thoughts about the
role of technology, just as background, and I want to establish
three truths. And I believe these to be truths.
The first is: We are
in the midst of a generation gap in our understanding of
information and technology. Those of you who know me, know
that I have very bad vision, so I have no sense of the age
of you out there, but your aura is that you are of my generation.
I'm forty-eight years old and I'm on the wrong side of the
generation gap. I think those of you who are academics,
who work with students, can get a feel for this. People
are changing in the way they think about information and
they're changing in the way they use information and I think
that has profound effects all across society, but definitely
within the practice of law. This change is going to have
an immediate impact on us. Law in the United States has
been at the cutting edge of technological development and
it is going to lead a great deal of the change.
Last year, we remodeled
the library at Boalt Hall, the law school at Berkeley where
I work, and, because of construction overruns, when class
started in the Fall, the library was not finished. So, we
started classes with no law library. The first-year students
got eight weeks into the first semester with no library
-- not a rump library, not a satellite library, no library.
They survived. My favorite by-product of this happened in
the spring, about three weeks before the end of the second
semester. I taught contracts last year and I had a small
section of thirty students. After class one day one of my
students came up and said: "I have a great story for
you, Professor Berring. Last Friday night I was in the library
and I was reading a casebook and there was a reference to
a law review article, and I thought to myself, rather than
getting this on-line, I ought to look at the book. I'd like
to see what a bound law review article looks like. I went
into the stacks (we now have a big lobby and all of our
stacks are actually fairly remote). I looked around and
said, you know, where are the books? It was too late, there
was no reference librarian and so I started stopping students.
And I said, where are the books? Where do they keep all
the books? We didnt want to ask anybody on the library staff
so we made it a game. It only took half an hour and I found
it, and it was really cool. You know, there it was."
And I thought, my God, what a testimony. He's three weeks
from the end of his first year, and he'd never even been
into the stacks.
There's a generation
gap in the way we perceive information and use information.
I know there are some diehards who would still argue this
point, but I'm just going to take it as a given. I love
books, I'm a book collector, I collect rare books. I love
them. I love the tactile feel, but things are changing and
it's very hard. The definition of a generation gap is it's
very hard to see what the people on the other side of that
gap see as reality. The hardest thing is to be tolerant
of them and understand.
The immediate implication
of this generation gap leads to my second truth and that
is: I believe it is absolutely true that legal education
is going to go through a profound change in the very short
term. I would say ten to twenty years. Now, why is that?
The gestalt of legal education in the United States was
set up in the late Nineteenth Century. I like to tell my
students, when I give the talk at law school orientation,
if you were captured in an X-Files episode from television
and put into a time capsule and taken back a hundred years
to Cambridge, Massachusetts, and put in a law school --
the people would look strange, there would be no women there,
no people of color, and that might surprise you -- but the
curriculum would be the same. Basically, Langdell and his
disciples created a model of thinking about legal education,
a Socratic teaching method using common law subjects, that
is still with us today. Now, we're in the middle of a paradigm
change.
I hesitate to use the
word paradigm, because I know it's vastly overused. If you
go to any corporate seminar, any management training, they
talk about paradigms. But, I started using the word paradigm
in 1971, and I'm not going to give it up. When I went to
Harvard College -- this is my credibility story, see if
you believe me. I grew up in rural Ohio and there were many
words which I had read, but had never said in my life. And
my second week at Harvard, I was in a Social Relations class
in a small section of about forty people, and I got up and,
holding forth as only an eighteen-year-old can, I said:
"I think what this represents is a profound shift in
the major 'paradigum' of American Culture." And, of
course, the Graduate Assistant teaching the class said:
"I think you mean paradigm, Mr. Berring." Unfortunately
for me, in that class of forty people, was a guy who was
to become my roommate, my best friend. I was the Best Man
at his wedding, he was the Best Man at my wedding. So throughout
college and law school, when I would start to hold forth,
when I would be profound, whenever I would start to reach
that apex of brilliance, Danny would say: "You know,
Bob, maybe you could sketch out a little 'paradigm' here
for us." And to make him stop, I asked, what will I
have to do, and he said: "I want you, whenever you
use the word paradigm in a speech, to swear to me that you
will tell this story, and that way people will know who
you really are."
So, that's my credibility
story. But, there really is a shift in the way we use information
and I think there's going to be a shift in the way we teach
law and it's very hard for us to see. I've been in law schools
for twenty years. What are the indicia? I think you look
at a few things. What do we do in law schools? We bring
large numbers of students together in the same place for
instruction using materials like this [holding up a casebook].
I consult for the major book companies, so I know about
this. They are very worried about this. Every law student
carries around these big casebooks. When we were talking
about setting up the orientation at Berkeley this year,
they asked what were the most popular questions at orientation.
I said: "How many books do you carry around? How many
do you keep in your locker, they're so heavy. What's in
this book?" I looked at this -- this is the contracts
book I use -- last night. I looked at the first hundred
pages. There are only three pages which are not available
on Lexis and Westlaw. Not in the edited case version, of
course. There were a few very old texts, that I couldn't
find. But, largely, this is reprocessed information, sold
at $65.00 to a student who can get more information in a
better, more easily digested format.
That's part of the problem.
Another question is: In the future will we have to bring
everybody together? When you look at accreditation standards,
everybody starts to look at libraries. Accredited libraries
were the warehouses of information in the past. Who's got
the biggest? The biggest is the best. When you look at a
faculty, it's the faculty who are instituted, the faculty
who are there. Is that going to be the case in the future,
as faculty understand how to broaden their reach? Arthur
Miller, as I'm sure many of you know, has videotaped his
entire civil procedure course at Harvard. Now, that's a
primitive approach to this, but the first steps will be
primitive. Both West and Lexis, the only two major legal
publishers left, are marketing systems for faculty members
to use to create their own Internet home page. They tried
it using dial-up servers, but now they recognize it's cheaper
and easier using the Internet. That's going to allow faculty
to talk to their students on-line. They can ask you questions,
you can give them assignments without actually seeing them,
without being in the room. The immediate corollary of that
is, why can't students attend the lectures of somebody else?
In fact, various schools are doing this. If you're taking
contracts with me, why can't you see what's going on in
a contracts class at Stanford or at Yale or at Harvard,
or at the University of Chicago, or at Ohio State or wherever
you want? There aren't any physical barriers any more. Now
this may seem like Flash Gordon stuff, but I think this
is very short term. When a paradigm switches, it switches
like that. The change will come very, very quickly. My own
work has focused in large part on the role that information
plays in this change.
I think we have been
an incredibly book-centered profession. At the same time
Christopher Columbus Langdell was setting up the Harvard
Law School, John B. West was purchasing a classification
system which became the topics and key numbers to the American
Digest System. A few decades later, Frank Shepard was setting
up a citator system. They established the paradigm of legal
information: total reporting of appellate opinions; ability
to classify them into a standard subject array; and ability
to trace what subsequently happened to them. That's all
breaking down around us. On the other side of the generation
gap, it is very hard to make students understand the utility
of a topic and key number system. I think it is important,
there's an enormous intellectual investment, but it's hard
for them to see. They don't think of materials the same
way. For me, when I learned legal information, I went into
a library. On one end were casebooks and on the other end
were statutes. The law reviews were upstairs. Different
parts of the building separated information. That's not
the way students learn it today. They see it all on their
screen with hypertext links. You read a case, you link to
a statute, you go to a form book, you go to a practice book,
you slide to an administrative rule or regulation, you come
back.
I teach a course at Berkeley
called Advanced Legal Research. Every year it enrolls between
one hundred fifty and two hundred students. About sixty
percent of the second- and third-year students take this
class. One of the exercises I do with them, and I've seen
them get better and better at this, is ask them: what is
a case? When you read a case, what would you like to see?
Forget the casebooks we made you use. They've already forgotten
everything in legal research training from the first year,
but, I say, if you have any remnants, flush them out. What
would you expect to see? And what do they start to say?
Well, the appellate opinion. But, then they want to see
what happened to the opinion. They want to see the lower
court opinions, but then they break through that. They say,
could we see the transcript of the trial court, could we
see the oral argument, could we see the complaints, could
we see the discovery documents, could we hook into factual
research that supplies the background for this complaint
and this action? Could we see the briefs of counsel? Why
would we have to redo the work that these folks have already
done? Can we go out and talk to commentators? When I read
the case, can I find out what Larry Tribe thought about
the case? Or, can I find out what another expert thought
about the case? And, it's because they're not confined to
the models that we have always seen. One of the reasons
research and writing training was always so bad was we learned
by osmosis. Everybody understood the key number system,
whether you knew it or not, everybody understood what cases
were, everybody understood what Shepards was. That model
is breaking down, too. That model is breaking down because
it is not customer generated, but generated from the industry.
I'm sure most of you
know the West Publishing Company was sold last year. For
those of us who study legal information, this was the moral
equivalent of the Catholic Church selling itself. I was
one of the first people to visit West. I started studying
West in the seventies and they were like a band of warrior
monks, up there in St. Paul. A privately held corporation
with the senior management holding stock, so they could
do what they wanted. Change the way they wanted. They made
a ton of money doing it, but they really had an idea about
information and they had a relationship to the Bar. They've
been sold to the Thompson Group, which has bought about
two dozen American legal publishers. Reed Elsevier, an English-Dutch
conglomerate, bought Lexis. They have now bought Shepards,
which I used to think of as the Switzerland of legal research;
everybody had to go to Shepards. That's going to get re-defined,
and I bet if you go down to the exhibits here, you'll see
West has whirled out a new product, Key Cite, designed to
compete with Shepards and do more. Shepards is now going
to be the product of one company. There'll be a competing
and interesting product on the other side. This is all being
redefined around us. All these models are breaking down,
and I think this will lead to major changes in legal education.
The first law school that goes on-line and says we will
offer you the most popular professors in the world, you
can sign up here, you can take this on the Net, you can
get real-time video, you can study wherever and whenever
you want, will be taking a first dangerous step, but it's
a step down what I see as an inevitable process.
Okay, the third truth
is: legal practice is going to change. This relates to my
views that we're going through a profound shift in the way
we even conceive of law. Grant Gilmore wrote in The Death
of Contract, "There is nothing more exciting than watching
the development of a new area of law." In his discussion
he talked about the West System and how it cemented our
thinking about legal concepts. And he was talking about
contracts in the Nineteenth Century. What I think we're
seeing now is a profound redefinition of what the law is,
and it's cloaking itself in the raiment of intellectual
property. Because that's what we think of information as
-- copyright, patent and trademark. If you ask in law school
orientation, "How many people here want to practice
intellectual property law?", it's the entire class,
because that is what's happening. And I think that is defining
a whole new series of practice areas, not just traditional
intellectual property concepts. If you think about what's
going to happen in the on-line environment and how it's
going to change how people think about law and work as lawyers,
you have to look at some of these deep changes.
We have always had a
profound sense of place in the law. Your warehouse of books
changed wherever you were. If you look at our State Bars
-- we still have fifty State Bars, it's one of the things
Deborah [Rhode] talked about -- we still have a failure
to come together and amalgamate among our own State Bar
Associations, let alone among the national ones. You were
rooted in a place. The concept of jurisdiction, taught as
one of those first-year courses, is going to change, because
where are you on the Internet? On a part of a roundtable
that David Rockhower runs -- which is also interesting to
me because it's got practitioners, it's got academics, it's
got nonlawyers, it's got techies, all talking about issues
-- one of the big debates is, what's going to happen
to jurisdiction? How can you be any place? How can you be
in one place?
A second thing that's
changed is our sense of time. My best friend is a partner
in San Francisco at a large firm, and he says the beginning
of the end of his life as a comfortable and happy person
was the development of the fax machine. Of course, he does
a lot of business with Japan. He says it used to be great.
He'd get a letter from Japan and they would say get back
to us within seventy-two hours. He said it was a very stately
practice. And now, while he's at the ballgame, he gets a
beep on his cell phone, he picks it up, they say we just
got an e-mail, they want a response within two hours.
Our ability to think,
our ability to conceptualize, is changing profoundly as
well. And the ability to deal with language, which I know
is something we're going to hear about after the break,
I think also plays a huge role. Right now, when we think
of the Internet, we think of English. How long English will
be the dominant, international technical language is up
for grabs. It could prevail. It could win, but it's an assumption
that we're making. We've tended to view all of these developments
through our own lens. Because I work with China, I know
how much time they are investing in building up their own
electronic infrastructure. Will they be willing to see English
as the international standard language? Will that be true
in the twenty-first Century? Are we thinking about that?
I'm not sure.
So, those are my three
profound truths. An information generation gap and the people
on the other side of it just don't see our point, and I
sometimes think that people on my side of it don't see their
point. There's legitimacy to both. I'm a librarian, so I
know that for the next ten or fifteen years I'm going to
have to live in both worlds. I will have to provide paper
products for those who want them. I will have to provide
data bases for those who want them. Our faculty library
at Berkeley is a great example right now. We built a big,
new faculty library and I surveyed the faculty and said
what do you think we should do in there? Half of the faculty
who responded -- who are all younger -- said, get rid of
the books. For God's sake, why do we want a National Reporter
system in there? Put in more terminals. We need a high-speed
printer. We need more nodes onto the Internet. The other
half of the responses I got said, for God's sake, don-t
give in to these techno-weenies! We need more books, we
could use an extra copy of the official state reports. So,
as a trained administrator, I set up a committee. I crossed
their e-mails to each other and they can bloody themselves.
So, those are my three
profound truths: generation gap, change in legal education,
which I think is very hard for us to see, very hard to predict,
but it's going to happen. The third is practice.
Let me leave you with
two questions. The first is the reality check in all this.
There are a great number of people who are not part of this
change. I did a training, I go to law firms and do training
for their young associates on how to do research. We don't
train them how to do research in law school, so they hire
me to come in and show them once they're working. I did
a training at a Washington, D.C. law firm. It was a Saturday,
I had about twenty-four young associates. The training partner
introduced me and hung around for about twenty minutes and
then he split. When I got to the first break, I said, do
you have any questions? And a young woman put up her hand
and she said:"Professor Berring, it's just us now.
It's just us. He's gone. And I don't understand. They don't
understand me at this firm. They don't understand us. They
don't understand how we use data bases. You know, the firm
has a flat fee arrangement with Lexis and West. We don't
cost them more money, we're better researchers. I can provide
better information electronically. But, the partner I work
for won't accept it. He wants it in paper. He wants me to
do it the old-fashioned way. What do we do, Professor Berring?
What do we do?" And I've heard this question before
and I always give the same answer: "We wait for them
to die." Because they're on the wrong side of the generation
gap. They will never understand you and they don't care
about you. If a partner in this firm says, I want it scratched
on a rock, you're going to scratch it on a rock and it's
going to be very hard to convert them. So, the reality check
is there are those people on the low end.
There are still a huge
number on the low end -- I think of them as an installed
data base of non-technical lawyers in small practices all
across the country. The vendors, I know, see that as their
market. They're going to go after the little practitioner.
They've already sold the big firms.
The next question is
and this is my challenge, I guess, and why I was so grateful
to Mary Kay for the chance to talk to this group -- who
is going to lead this change? Who is going to change the
accrediting standards in law schools? Who is going to recognize
that law school curricula need to be changed? Who is going
to be on the forefront making difficult decisions? We are,
by nature, a conservative profession, a reactivprofession,
and I think if we don't make these changes, these changes
will be made for us -- the way the legal publishers are
changing the way we use legal information, because they
will take us along. That's a big chip to have lost, but
it's nothing compared with the structure of the delivery
of legal services, the general concepts of equity that we,
through our codes of professional ethics have tried to broadcast
and make clear to everyone. It would be an enormous loss,
if the market, if economic forces, if globalization, took
those initiatives away from us. So, I guess my final question
is really a challenge. And that is, that the bar association
see this as a mission, a calling to save us, not just from
ourselves, but from history. Thanks.
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