Law libraries: The heart of legal practice

The library has historically had a central position in the life of the law. The popular view of legal practice links it strongly to dusty tomes. Law is bound to texts as closely as theology is. Library at Calke AbbeyUntil recent years, large law firms and barristers’ chambers would often present their library holdings as a mark of their seriousness. National and local law societies established libraries as a priority for their members.

Some modern lawyers have forgotten the significance of libraries in their legal practice. They point to the ready availability of online and portable electronic resources as a better alternative to bound volumes. They resent the space that those volumes occupy at a time when property costs are rising. They encourage their firms, chambers and professional bodies to treat libraries as just another expense: to be trimmed when necessary.

It is true that libraries cost money to establish and maintain, but these costs are different from others that burden legal practice. The value of a library is often as much in its historic holdings as in its current content. Once lost, the older material can rarely be replaced. Like professional reputation, a good library depends on goodwill and credit accumulated over many years.

One of London’s Inns of Court, the Inner Temple, has proposed a major upheaval to its own library. David Allen Green has eloquently noted why these proposals are wrong-headed. He concludes:

A good law library, as I said at the head of this post, is a Public Benefit.  It provides a lawyer – any lawyer – with the same access to the very same legal resources as his or her opponents, however well-resourced or expensive those lawyers are.

And in every lawyer’s case there is a client; and so the access a lawyer has to first-rate legal resources benefits the client.  And the public benefit too: cases which are properly argued are more likely to be properly decided, and the output of our courts has an effect on society generally.

David also links to the Inner Temple’s library committee’s response to the proposals. That document contains many submissions by eminent library users decrying the erosion of the library.

Amongst those submissions, there are a couple of points that are not often enough made about the purpose of libraries, and which I think are particularly important in modern legal practice. Libraries are not just about books and resources — they offer a community focus, and a kind of space that may be missing elsewhere.


A good library is not just a space for books; it is also a space for people. In particular, it is a space for people to focus on a specific task. That is now unusual in the workplace. Technology (whether desktop or mobile) is built around the assumption that all a lawyer’s needs can be provided through the same screen. That might sound useful, but it also leads to distraction and thence (in all likelihood) to poorer quality work. The ability to remove oneself to a desk in a library, to focus on a single task, may improve the quality of work.

This opportunity to find a dedicated working space is particularly important in open plan offices. Firms sometimes forget this. Some lawyers have also lost the habit of working away from their desks. Their fear of missing a particular communication ties them to their technology and renders them more susceptible to distraction. Firms often point to lawyers’ habits as grounds for reducing the space available to libraries, without considering whether those habits are the right ones. Often they aren’t. Designing good working spaces shouldn’t just be a reflection of what people do — it should lead them to do things that are better.

Steve Jobs knew this:

Then there’s our building. Steve Jobs basically designed this building. In the center, he created this big atrium area, which seems initially like a waste of space. The reason he did it was that everybody goes off and works in their individual areas. People who work on software code are here, people who animate are there, and people who do designs are over there. Steve put the mailboxes, the meetings rooms, the cafeteria, and, most insidiously and brilliantly, the bathrooms in the center—which initially drove us crazy—so that you run into everybody during the course of a day. He realized that when people run into each other, when they make eye contact, things happen. So he made it impossible for you not to run into the rest of the company.

Just as Pixar’s building is designed to connect people, shouldn’t legal businesses lead their people to work better? Libraries can help to do that.


In addition to being good dedicated workplaces, libraries can become a focus for communities. This is one explanation for the existence of law libraries run by law societies and the Inns of Court. Those institutions were established at a time when the typical legal enterprise was too small to sustain a meaningful library of its own. Sole practitioners or small partnerships need all kinds of support — starting with access to books and other resources.

As larger legal businesses have become prevalent, many local law societies have struggled to maintain their investment in libraries. Many have closed.

There is no guarantee that large law firms will remain the norm. Cheaper technology (amongst other things) allows smaller organisations or individuals to compete on equal terms alongside the leviathans. The communities supported by thriving law libraries should help that happen.

Although they might appear to hark back to historical legal traditions, law libraries have changed alongside the rest of the legal world. They remain the unsung heart of legal practice.

Knowledge insights from Atul Gawande’s Reith lectures

Annually since 1948, the BBC has broadcast a short series of lectures named in honour of its founder, Lord Reith. This year’s series is being given by Atul Gawande. Although his subject is the nature of progress and failure in medicine, the two lectures delivered thus far resonate way beyond that field. I want to pick out a few points here from those two lectures in that they relate to the way we deal with knowledge in our work. The remaining two lectures have a slightly different focus, so I may look at those in a later post.

Lecture 1: Why Do Doctors Fail?

(Audio | Transcript)

At the heart of Gawande’s first lecture is an article published in the first issue of the Journal of Medicine and Philosophy in 1976: “Toward a Theory of Medical Fallibility” by Samuel Gorovitz and Alasdair MacIntyre. As Gawande summarises:

They said there are two primary reasons why we might fail. Number one is ignorance: we have only a limited understanding of all of the relevant physical laws and conditions that apply to any given problem or circumstance. The second reason, however, they called “ineptitude”, meaning that the knowledge exists but an individual or a group of individuals fail to apply that knowledge correctly.

In addition to ignorance and ineptitude, however, Gorovitz and MacIntyre identified a third cause of failure:

they said that there is necessary fallibility, some knowledge science can never deliver on. They went back to the example of how a given hurricane will behave when it will make landfall, how fast it will be going when it does, and what they said is that we’re asking science to do more than it can when we ask it to tell us just what exactly is going on. All hurricanes are ones that follow predictable laws of behaviour but no hurricane is like any other hurricane. Each one is unique. We therefore cannot have perfect knowledge of a hurricane short of having a complete understanding of all the laws that describe natural processes and a complete state description of the world, they said. It required, in other words, omniscience, and we can’t have that.

This necessary fallibility is akin to, if not the same as, the complexity that I described in an earlier blog post here.

Interestingly, Gawande chooses not to focus on necessary fallibility, but on the other two components. In particular, he is concerned that there is an uneven distribution of capabilities:

But the story of our time, I think, has now become in a unique way as much a story about struggling with ineptitude as struggling with ignorance. You go back a hundred years, and we lived in a world where our futures were governed largely by ignorance. But in this last century, we’ve come through an extraordinary explosion of discovery and then the puzzle has become not only how we close the continuing gaps of ignorance open to us but also how we ensure that the knowledge gets there, that the finger probe is on the right finger.

There’s a misconception I think about global health. We think global health is about care in just the poorest parts of the world. But the way I think about global health, it’s about the idea of making care better everywhere – the idea that we are trying to deploy the capabilities that we have discovered over the last century, town by town, to every person alive.

I think something similar is at foot in relation to legal knowledge. Those of us who work on improving knowledge within law firms often focus on the things that look hard — understanding new cases and legislation, for example — but in fact clients would get better value if their lawyers thought more carefully about the laws and processes that they take to be straightforward. Reducing ineptitude within firms is arguably more important than attempting to eliminate legal ignorance. Equally, there is much to be gained from spreading awareness of the law more widely outside law firms. This is an area where I see a number of technology-based enterprises at work, as well as the work of the National Archives in opening up the UK’s legislative archive.

Lecture 2: The Century of the System

(Audio | Transcript)

Atal Gawande’s second lecture draws heavily on his book The Checklist Manifesto. I thought I had already written about this book on the blog, but it turns out I haven’t. It is probably too late to do that at length now, since the concept has found its way deep into business culture. For example, we put it at the heart of some of the risk and quality work that I supported in my last firm.

What the lecture brings out is an emphasis on the checklist as a systematic tool, rather than a personal guide. This is present in the book as well, but when one hears Gawande speak the focus is unavoidable.

One of my colleagues said that “we are graduating from the century of the molecule to the century of the system.” And by that what he meant was that we’ve gained an enormous amount in the last century by focusing on reducing problems to their atomic particles – you know discovered the gene that underlies disease or the neuron that underlies the way our brain works or you know the super specialist that can deliver on a corner of knowledge – but what we’re discovering is that we graduate into the future, we are faced with a world where it’s how the genes connect together that actually determine what our diseases actually do. It’s how the neurons connect together and form networks that create consciousness and behaviour, and it’s in fact how the drugs and the devices and the specialists all work together that actually create the care that we want. And when they don’t fit together, we get the experience we all have – which is that care falls apart. The basics end up being known, but they’re not followed.

And so we were approached by the World Health Organisation several years ago with a project to try to reduce deaths in surgery. I thought how can you possibly do that? But it was in exactly the same kind of problem – the basics were known but not necessarily followed. And so we worked with a team from … from the airline industry to design what emerged as just a checklist – a checklist though that was made specifically to catch the kinds of problems that even experts will make mistakes at doing. Most often basically failures of communications. The checklist had some dumb things – do you have the right patient, do you have the right side of the body you’re operating on, have you given an antibiotic that can reduce the infections by 50 per cent, have you given it at the right time? But the most powerful components are does everybody on the team know each other’s name and role, has the anaesthesia team described the medical issues the patient has? Has the surgeon briefed the team on the goals of the operation, how long the case will take, how much blood they should be prepared to give? Has the nurse been able to outline what equipment is prepared? Are all questions answered? And only then do you begin.

The outcome of this work was a huge reduction in complication rates (down 35%) and deaths (down 47%). The system has been shown to have saved 9000 lives in Scotland alone.

The lectures are followed by an opportunity for the audience to ask questions, and it is here that some of the most telling points were brought out. In response to a question from an operations manager at Heathrow Airport, Gawande highlighted a point about complexity and the limitations of expecting everyone to know their own job.

In fact in order to even come at how we would attack this question in surgery, what we did was we brought in the lead safety engineer from Boeing to come with us. He didn’t know anything about healthcare, but when he saw the way that we even approached the problem of improving outcomes in surgery, he was sort of baffled, you know, that he would watch how I went into an operating room and I’d go into an operating room and I’d just start operating. And he said, “Hold on a minute. Is this really what you do? You don’t … Have you made a plan with every …” “Everybody knows what to do. They all know what to do. You guys know what to do, right?” “Oh yeah, yeah, yeah, we know what to do.” And then we’d watch one thing fall through the cracks and then another and then another. It took him only a moment to step back and say, “You all need some basic communication systems around the idea that a team has to be effective at what they’re doing.” So I think that there are lessons very much coming from other fields.

Here’s the big difference. There are two people in a cockpit trying to make something happen and in many clinical environments it’s many more than that. My mother went for a total knee replacement and I counted the number of people who walked in the room in three days and it was 66 different people. And so the complexity of making 66 people work together – you know you’d have the physical therapist walk in in the morning and they’d say, “What are you doing in bed? You should be out of bed.” And the physical therapist would come in the afternoon and it would be a different person and they’d say, “What are you doing out of bed? You should be in bed.” This is still where we are.

And responding to a suggestion that checklists might ossify and hinder innovation:

That’s precisely the danger. So there’s the bad checklist and the good checklist, right? So the bad one is one that turns people’s brains off. More often than not, the effective checklist – ask people questions that they have to discuss and get their ideas forward – and that was out of a scientific process that we identified and it’s made in ways to help an expert be even better at what they do.

For me, those are the two lasting insights from the lecture. First, checklists need to be as much about communication as they are about giving instructions. And, second, checklists should be structured to draw out additional thought and contributions by the team using them. Both of these insights can usefully inform practice in a range of areas (including the law) and would be sensibly applied in the generation of knowledge materials — whether those come in the form of checklists or otherwise.

Learning and developing

One of the things that comes across clearly in both of these lectures is a commitment to nuanced learning. Like most of his fellow physicians, Gawande is clearly keen on increasing his personal knowledge within his field and beyond. Both lectures depend on insights from other people’s published research, and Gawande shows how those insights have more general application. However, it is obvious that he isn’t interested just in the knowledge. He wants to be able to to express ideas clearly to others, and he does this really well with a coherent narrative thread running through each lecture (this continues in the later lectures too). Finally, he is alert to the way knowledge informs practice. The second lecture is based on a paper describing treatment procedures for hypothermic victims of drowning. However, Gawande extracts from this highly-specialised situation a set of principles that might be relevant to any complex treatment.

Gawande’s approach thus has the following characteristics:

  • Breadth of input
  • Evidence-based narrative
  • Thoughtful generalisation
  • Relevant conclusions

Each of those factors increases the immediate and lasting value of the final product to the listener or reader.

Thinking back to some of the knowledge content for which I have been responsible in the past, I am not sure that much of it was as well structured as Gawande’s lectures. As a result it probably had much less value than it could have done — certainly not lasting value.

It’s a good standard to aim for.

Knowledge management as a generative practice?

A serendipitous tweet today brought me to a new concept: generative business practices.

This appears to be a crystallisation of various strands of good working practice, juxtaposed with traditional notions of productivity. I hadn’t come across the author, CV Harquail, before, but she has an impressive CV.

The shadows we castThe clearest expression of the idea of a generative practice is provided in a post from last December: “actions, ways of doing, and ways of thinking, that don’t execute a plan but instead create unpredictable opportunities for everyone”

As I read more, this idea resonated with many of my thoughts about good knowledge management. Whilst we sometimes know from the start what impact our work will have on our organisations, sometimes the results are necessarily less tangible.

Broadly speaking, there is also a spirit of generosity amongst those who work in knowledge management — both internally (sharing ideas and insights and encouraging those habits within the organisation) and externally (working with others to deepen understanding about the field).

The more detailed explanation confirmed my thoughts:

Something is “generative” when it’s able to originate or produce something, or to give rise to new possibilities.

  • Generative ideas produce new ideas,
  • Generative process produces new ways of doing things or new outcomes,
  • Generative learning enhances our ability to create,
  • Generative relationships build new capabilities in both partners, and
  • Generative leadership helps others see opportunity in their actions.

Generative practices are important because they make new things possible. They have the capacity for ‘more’ built right in.

Generative practices make new opportunities possible, but not inevitable. We don’t know and can’t predict specifically what a generative behavior will trigger. We can only expect these practices to create openings and invite new outcomes to emerge.

I need to reflect a little more on this idea and how it might help people assess the impact of knowledge management. I have already part-drafted a post on measuring the value of KM, and it may pop up in that.

Legal technology, practice, theory and justice

Like all other areas of life and work, the law has been changed immeasurably by technology. This will doubtless continue, but I am unconvinced by the most excited advocates of legal technology.

The impact of technology has been felt at a variety of levels. The last 35-40 years has changed the way practitioners approach all aspects of their work. Likewise, the changes wrought by technology on personal, social and commercial behaviour and activities have driven changes in the law itself.

Clouds round the tower of lawThese trends will doubtless continue, but predicting the actual changes that they will bring is a fool’s errand.

I recently wrote an article in Legal IT Today, arguing that the most extreme predictions of the capability of legal artificial intelligence would struggle to match the abductive reasoning inherent in creative legal work. In addition to that argument, I am less confident than some about the limits of technological development, I suspect that the economics of legal IT are not straightforward, and I have a deeper concern that there is little engagement between the legal IT community and generations of legal philosophy.

Limits of technology

One of the touchstones of any technology future-gazing (in any field, not just the law) is a reference to Moore’s Law. I am less certain than the futurologists that we should expect to see the doubling of capacity for ever more. If nothing else, exponential growth cannot continue for ever.

…in the real world, any simple model that shows a continuing increase will run into a real physical limit. And if it is an exponentially increasing curve that we are forecasting, that limit is going to come sooner rather than later.

What could stop computing power from increasing exponentially? A range of things — the size of the components on a chip may have a natural limit, or the materials that are used could start to become scarce.

More interestingly, from the perspective of legal business, the undoubted growth of technology over recent years has not necessarily produced efficiencies in the law, if we use lawyer busyness as a proxy for efficiency. There are far more people employed in the law now than 40 years ago, and they appear to work longer hours. Improved computing capability has produced all sorts of new problems that demand novel business practices to resolve them. (One of these being knowledge management.)

Nonetheless, it is still possible that future developments will actually be capable of taking on significant aspects of work that is currently done by people. The past is not necessarily a good predictor of the future.

The business challenge

There is currently a lot of interest in the possibility that IBM’s Watson will introduce a new era of legal expert systems. Earlier this month Paul Lippe and Daniel Martin Katz provided “10 predictions about how IBM’s Watson will impact the legal profession” in the ABA Journal. Bruce MacEwen has also asked “Watson, I Presume?” However, one thing that marks out any reference to Watson in the law is a complete absence of hard data.

The Watson team have helpfully provided a press release summarising the systems currently available or under development. Looking at these, a couple of things strike me. The most obvious is that there are none in the law. There are medical and veterinary applications, and some in retail and travel planning. There are applications that enhance existing IT capability (typically in the area of search and retrieval). But there are none in the law.  The generic applications could be certainly be used to enhance legal IT, but there is no indication of how effective they might be compared to existing tools. And, most crucially, it is unclear how costly Watson solutions might be. That is where legal IT often struggles.

The business economics of legal technology can be difficult. Medical and veterinary systems have a huge scale advantage — human or animal physiology changes little across the globe, and pharmaceutical effectiveness does not depend significantly on where drugs are administered. By contrast, legal and political systems differ hugely, so that ready-made legal technology often needs to be tailored to fit different jurisdictions. Law firms tend to be small compared to some other areas of professional services and the demands of ethical and professional rules often restrict sharing of information. Those constraints can mean that it is hard for all but the largest firms with considerable volumes of appropriate types of work to justify investment in the most highly-developed forms of technology. As a consequence, I suspect few legal IT providers will be tempted to pursue Watson or similar developments until they can be convinced that a market exists for them.

Technology, justice and legal theory

My Legal IT piece was a response to an article by David Halliwell. His piece started with a reference to an aspect of Ronald Dworkin’s legal philosophy. Mine was similarly rooted in theory. This marks them out from most of the articles I have read on the future of legal IT. Given the long history of association between legal theory and academic study of IT in the law (exemplified by Richard Susskind’s early work on the use of expert systems in the law), it is disappointing to see so little critical thought about the impact of technology in the law.

As I read them, most disquisitions on legal IT are based on simple legal positivism — the law is presented as a set of rules that can be manipulated in an almost mechanical way to produce a result. By contrast, there is a deeper critique of concepts like big data in wider social discourse. A good example is provided in an essay by Moritz Hardt, “How big data is unfair”:

I’d like to refute the claim that “machine learning is fair by default”. I don’t mean to suggest that machine learning is inevitably unfair, but rather that there are powerful forces that can render decision making that depends on learning algorithms unfair. Any claim of fair decision making that does not address the technical issues that I’m about to discuss should strike you as dubious.

Hardt focuses on machine learning, but his point is true of any algorithm and probably more generally of any technology tending towards artificial intelligence. Any data set, any process defined to be applied to that data, any apparently neutral ‘thinking’ system will have inherent prejudices. Those prejudices may be innocuous or trivial, but they may not be. Ignoring the possibility that they exist runs a risk of unfairness, as Hardt puts it. In the law, unfairness manifests itself as injustice.

What concerns me is that there doesn’t appear to be a lively debate about the risk of injustice in the way legal IT might develop in the future (not to mention the use of technology with a legal impact in other areas of society). Do we have a modern equivalent of the debate between Lon Fuller and H.L.A. Hart? I am not as close to legal theory as I used to be, so it may already have taken place. If not, are we happy for the legal positivists to win this one by default? (I am not sure that I am.)