legal system and knowledge management, The

Knowledge management (KM) has been defined as a discipline focused on systematic and innovative methods, practices, and tools for managing the generation, acquisition, exchange, protection, distribution, and utilization of knowledge, intellectual capital, and intangible assets, according to Bryan Davis of The Kaieteur Institute for Knowledge Management. As such, KM represents both a conceptual leap in organizing information resources and a way of extracting additional value from them. This article examines one such set of information resources and the potential for applying KM to it.

In the age of knowledge management, law stands out as an anachronism. On one hand, law is entirely man-made. There are no hidden physical principles or great unknowns, and no lost body of knowledge. In theory, law - its principles, outcomes, and the entire body of its text - is completely knowable, down to every jot and tittle. A person researching some question of law ought to be able to quickly and easily derive an answer with certainty.

In reality, nothing is further from the truth. You can research a question of theoretical astrophysics far more easily, and derive an answer far more certain, than is possible with a moderately complex question involving the United States tax code. The reasons for this are steeped in history.

Anglo-American law is very old. In its beginnings, there was no organization at all. Local customs and mores and the local court that implemented them (collectively, the common law), plus the odd decree promulgated when the sovereign saw fit, were the entire body of law. There wasn't much of it altogether, and it was simply universally recognized and acknowledged. Organization, finding aids, and management were not needed. Even when things got a bit more complex, with statutes and other formal enactments, as well as court cases cited as precedent and recorded, there still wasn't much organization. Whatever existed got announced in court, and perhaps a written opinion was issued to the parties. Researchers interested in discovering what law might exist were left to find things as best they could. Whatever the state of the knowledge - and clearly there was some, for that old case law is still with us and is frequently still good law - there was certainly no management of it to speak of.

Law is a conservative calling steeped in its own traditions. In particular, the concept of precedent, or deferring to prior practice, is revered now as then. Once in place and blessed with the mantle of prior practice, making law, then making virtually no attempt to publish it to the world, became the way to do things. Only the direst of circumstances forced any change.

The practice continues into the present: courts issue decisions which are placed into case reporters in decision order, leaving the layman utterly baffled as to how to find anything. Our current sovereigns, in the form of various legislatures and parliaments, do the same. A year's statutory enactments are bound into a volume of session laws or unconsolidated statutes in bill number order, which only persons absolutely desperate to find the original language of an act - and with lots of time on their hands dare venture into. Only later does the codified version placed into the codified laws of the jurisdiction appear.

The First Knowledge Management

Even 200 years ago, this state of affairs caused problems. Law is based on the predictability and order of social affairs and on the articulation and uniform usage of legal and judicial principles. The point of law is to direct society toward these things. This is the value of precedent: case decisions and prior practice presumably reflect these values and guide later courts and parties.

Unfortunately, while the ability to cite precedent was well and good, finding out what precedent existed was very difficult. This became particularly acute in the United States, where vast geographic expanses made communication with distant courts next to impossible in a pre-electronic, pre-telegraphic, prerailroad society. Concurrently, law and society were becoming much more complex, so the need to search effectively for reasonably current law became more vital. There was much more knowledge but still little or no management of it.

Necessity is said to be the mother of invention, and so it was in this case. The 19th century saw the first attempts to collect cases into organized series of books - dubbed reporters - so that legal practitioners might easily locate cases on topics of interest. A number of reporters appeared in Great Britain and the United States, each with the same basic premise - many cases from some geographic area, collected in volumes, and tied to some type of indexing scheme. The midwives of these attempts at management were frustrated practitioners who found that if they did not capture and organize this vital information, no one else would. They collected as many cases as possible, indexed, organized, and then published them.

The completeness of each reporter depended on its editor's resources, location, and other factors; given the realities of the time, each reporter was incomplete and imperfect. Even so, they were a vast improvement over the prior situation. A set of reporters was a precious possession indeed. The stereotype of lawyers and their books, still with us today, reflects this.

Rudimentary KM evolved in the statutory arena about this time as well. Eventually the number of statutes grew so great that it became necessary to impose the first codification schemes. These organized the local statute collection into a handful of broad categories, with statutes on similar topics physically segregated within a volume or section, thus giving the researcher a chance at locating law of interest.

The attempts at organization continue to have a profound effect. Cases are still organized into reporters much like the first ones. The behemoth of American legal reporters, the West Publishing reporter/digest/keynote system, is simply one such attempt migrated into the 21st century. Similarly, many jurisdictions still use codification schemes promulgated years ago.

Many additional tools such as indexes, common name tables, and the like have been layered onto the original organization attempts in order to produce a more effectively usable scheme, but they suffer from a serious flaw. They reflect a body of law - and notions of its utility - that are well over 100 years old, and the questions that can be asked of these tools reflect this reality. The West indexing scheme was first developed in the 1870s, and although it has been revised over the years, it still largely reflects the law and perception of legal concepts as they stood then.

Recent Developments

The advent of electronic data systems has had a limited effect upon this history. Maintaining documents electronically permits searching for words and phrases within a document's text and rapid searches across large numbers of documents. Properly formulated queries facilitate asking questions formerly unanswerable using traditional tools; otherwise, electronic databases largely use the old parameters. For example, when searching topically for cases on Westlaw, the same indexing system as a paper law library - with all of its good and bad points - is used.

Even when the system has an index entry directly on point, the researcher still confronts dozens, even hundreds of cases, each described in a paragraph of perhaps 30 words. This allows no differentiation among cases in the search results; the descriptions are virtually identical, forcing the researcher to examine all of them. The problem for researchers seeking cases on new topics or with precise fact patterns is formidable. Attempting to find cases on retention scheduling, e-mail, the Internet, and other new issues is almost impossible using traditional tools.

Other attempts to use electronic media for dissemination of law are often worse. For example, many states have placed their statutes online with no index, finding aid or other means to research legal questions. These well-intentioned and costly efforts are effectively useless.

The Culture of Law

The legal system has what might be considered an anti-knowledge management bias. Consider court rules. All courts have rules on various subjects such as when and where to file things, filing formats, and scheduling matters. It is in the best interests of the court, and every party coming before it, to know the rules, so making them generally known via some sort of publication would be useful. Each state does actually publish a jurisdiction-wide set of rules for precisely this purpose. In addition, however, there are typically local rules as well as rules set up by individual judges for their own courtrooms.

One might suppose that these local rules would also be written someplace. Amazingly, this is commonly not the case. To discover what the local rules are, a person must either telephone the court (often repeatedly) in order to find someone who will actually reveal them or do something in violation of a rule and discover its existence when punished. The inefficiencies arising out of this are considerable; court personnel answer repetitive questions on administration while lawyers, paralegals, and others spend time calling to find out basic procedures.

An informal KM culture now exists within the law. Practitioners learn that it is wise to limit practice to certain areas of law as well as certain courthouses, because trial and error eventually permit a reasonable degree of familiarity with the local way of doing things. Concurrently, one learns to cultivate the acquaintance of other practitioners so that when venturing into an unfamiliar courthouse or in front of an unfamiliar judge, one can pick the brains of one's associates to gain a bit of knowledge on how things work. Carrying this over to the electronic area, one often finds that lawyers and law firms have Web sites devoted to some area of the law where cases and other material are cited. Such sites may constitute the only available source of information about a legal topic.

Why Not Real Knowledge Management?

All of this is a tremendous waste of time, a squandering of resources, and an accumulation of the resulting societal costs due to the systemic inability to place information currently in hand and well understood - into the hands of those who need it. The law is, in short, a prime candidate for application of KM. Why, then, does it not change?

Anglo-American law is a huge machine with many component parts. It is a system that is highly interdependent and strongly defended from within and has its own rigidly enforced culture. To apply a KM perspective to it is to undertake a task with potential complications that involve far more than mere data mining. Rather, it is a task of systematic reorganization to make the entire arena more knowledge and userfriendly. Not surprisingly, there are obstacles, which include:

* Expectations. If a thing is done a certain way for a long time, people's expectations are based upon this long practice, regardless of its merits or lack thereof. People expect the law to be abstruse, difficult, and painful to understand, not because of its technical complexities, but because it has always been this way. They are accustomed to it being so. There is, therefore, no expectation to the contrary no motivation for change, nor any willingness to pay the costs associated with such change.

Cost. Fundamental reorganization and rethinking of a body of knowledge requires a considerable resource expenditure. Mining knowledge for additional information increases that expenditure. The body of AngloAmerican law is very large indeed, and the resource expenditure would be huge. Even a small task like reorganizing a single state's statutes into a more rational codification scheme very basic in KM terms and scope - is likely to strain the resources available for it. The state of Maryland has been at such a reorganization for more than 20 years.

Training. Many people know how to make the current system work, and it does work, at least in some sense. Change the system, and there will be at least temporary disruption due to bugs in the new method or a simple lack of people who can make things work.

Vested Interests. A system in place long enough creates sets of parties who profit from it and who would accordingly suffer from its demise. Publishers, lawyers, courts, and others are heavily invested in the current state of affairs. Many of them have little incentive to change because a more accessible, cheaper, knowledge-base in the area of law would be detrimental to their economic interests. Players in the legal arena have traditionally guarded their interests very carefully.

These factors combine to create powerful inertia and resistance. What, then, will force change?

* New players. The advent of electronic publishing has changed legal publishing. Rather than compete against established players on their own turf, new ventures must compete based on new paradigms and new service offerings. This makes true KM attractive as a competitive niche. In the legal arena itself, the new generation of legal professionals has expectations that differ considerably from older, more traditional practitioners. New lawyers are used to the features, speed, and depth of electronic databases, and they are willing to demand more from them They are the consumers willing to pay the costs of KM.

* Competition. The established legal field finds itself under siege nowadays. Arbitrators, accounting firms, consultants, and many others are chipping into law's traditional bailiwick, offering services that are in direct competition with traditional legal firms, thereby eroding their client base. Although the legal establishment has had success in keeping these parties from encroaching on its turf, this is changing. Changes in the regulatory climate, based on the exploding costs of using the legal system, permit new service providers into previously forbidden territory. Such providers will also be consumers of new information services.

Systemic application of KM within the law is a process that will take time. Many fundamental changes in the current setup will be required. Pressures from a variety of sources will eventually force that change.

John C. Montana, J.D., is an attorney and records management consultant based in Landenburg, Pennsylvania. He may be reached at montana@csd.net.

Copyright Association of Records Managers and Administrators Inc. Jul 2000
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