Predictions 2009: Last Gasp Contributions

January 4, 2009

From Nigel Miller, Partner, Fox Williams LLP

The business world coming out of the current recession will look very different and technology, and the Internet in particular, will be the key driver.

Whether the motivation is cost saving, greater efficiency, better customer service or being more environmentally friendly, the answer lies in the better use of technology.

IT gets greener:  There is a growing realisation about how much the Internet costs to keep running in terms of power and environmental impact.  For data centres, power management is the key issue.  At a micro level, because Google is the homepage of choice for so many, it has been said that if Google changed its background colour from white to black, many millions globally could be saved.  Google has disputed this saying that a black background may actually increase energy usage.  Whatever the position on this may be, IT departments will increasingly be looking for green technologies mainly driven by the desire for cost-savings dressed up as environmental concern.  In response, more new green technologies will emerge to reduce the cost of ownership and environmental impact, such as smarter and more accessible power management features.

Data security:  data security issues have continued to hit the headlines in 2008 and this will run into 2009 where there will be more spectacular data breaches.  While the Criminal Justice and Immigration Act 2008 introduced new penalties for serious breaches of data protection principles, for many businesses (and indeed government departments!) the main impact of a breach of data security is adverse publicity and loss of goodwill. Meanwhile, with the proliferation of mobile devices and removable media, the job of maintaining data security becomes increasingly difficult.  The application of endpoint data encryption – such as supplied by – will increasingly become a requirement and it will be hard to show compliance with the Data Protection Act where such available technologies have not been implemented.

Bye-bye Blackberry:  the Blackberry has been the device of choice for the mobile lawyer, but it will come under pressure from Windows Mobile and the iPhone, both of which tap into Microsoft Exchange without the need for additional servers and expensive proprietary systems.  My view, as a user, is that the iPhone – now with 3G and push e-mail and many add-on applications – will seriously challenge both Microsoft and Blackberry in the corporate market.

Smarter advertising:  the challenge of generating revenues from social networking sites continues.  In response, technologies for targeted behaviour and contextual advertising (such as Phorm) become ever more sophisticated.  While these technologies are highly desirable for businesses whose revenue model depends on advertising, the Holy Grail is to develop the technology in a way that users can easily understand, and so as to be compliant with data protection and privacy laws.  There are few areas which highlight so starkly the tension generated by a developing technology between the needs of business and the regulatory protection for consumers.  The EU and other regulators will continue to take an interest in this technology and there will be increasing pressure to develop an authoritative statement, either by new regulation or test case, as to how it can be legally implemented.

Software as a Service and legal risk:  corporate and private users have become increasingly comfortable seeing the benefits of using software as a service and accessing and storing their data in the cloud.  Whereas software vendors have typically not accepted responsibility for data loss, where the vendor is responsible for the data storage and security this will need to change.  Loss of data could give rise to significant liability and where the vendor has trumpeted its data storage and security service it may not be reasonable (and therefore legally enforceable) to limit this liability.

From Nick Holmes, publishing consultant specialising in the UK legal sector and Managing Director of infolaw (reproduced from his Binary Law blog)

I usually leave it until the last minute to frame my ‘binary law’ predictions for the year ahead. After all, a lot can happen in a month and it’s of course helpful to have the benefit of everyone else’s predictions first!

Charles Christian and others see that in these straitened times one of the prime areas for cost-cutting will be IT: firms will delay upgrades and expenditure on new systems where these won’t show immediate financial benefit and will increasingly look to outsourcing their IT requirements via SaaS and cloud computing services.

But we won’t get out of this hole simply by cutting IT costs and substituting outsourced services. As Linda Webster, Head of IT at Wedlake Bell, says, forward-thinking firms who see themselves as businesses and IT as a critical component of all our daily lives will be looking closely at every area of their businesses from how clients are attracted and retained to the methods in which work is produced and will be using this as an opportunity to deploy systems in imaginative ways.

This echoes the ever-prescient Richard Susskind’s entreaty (penned before the current recession had taken hold) that to respond effectively lawyers should ‘decompose’ their work: look at each task in turn and honestly assess the optimum way of executing each. The resulting legal service will have its origins in numerous sources, each chosen for its suitability and efficiency, and combined in a seamless solution. He refers to this as ‘multi-sourcing’ (deploying everything from in-sourcing, through outsourcing in all its manifestations, home-sourcing and open-sourcing to computerising; and even ‘non-sourcing’ where the risk of doing nothing is negligible). The prospective protracted recession renders it more urgent that firms conduct such a review immediately.

It’s a certainty that this process will gain pace and 10 years hence we will have a very different legal services landscape; less clear is how far along the path we will be in one year’s time or what significant developments will have taken hold by then.
If the last year has taught us anything it is that we have to think long term. We’re in this mess largely because of short-termism. So I will leave you with no predictions for the year ahead. Focussing on 2009 will not help any of us; we need to put on the long lenses to see what we need to do to make a difference in the next year.

There is hope (see Jordan Furlong’s blog at

From Laurence Eastham, Editor of the SCL site and Computers & Law

Having read all the other predictions (of unrivalled quality and length), I have been shamed into contributing mine. The trouble is that, having read all the other predictions, I have no original thoughts to rival them

There can be no doubt that SaaS and open source will matter more. That there will be a tightening of the purse-strings on technology expenditure seems clear too. But I suspect that the lull in technology-related developments in law firms will be very short-lived – I am not even sure it will last the year.

This is explained by the fact that there is a real change at the root of so much of the redundancy we see – redundancy in the widest sense. Woolworths may have gone to the wall because it has failed to redefine itself, but the pressures on it are largely the result of shifts in the way people shop. My son buys from three sources: 85% of everything from Tesco, 10% online and 5% from somewhere else. Woolworths was once competing for a share in perhaps 30% of expenditure; it was left to compete for 5%. And it will not be entirely dissimilar for law firms – big boys, technologically aware and online services will prosper, unbranded generalists will fail not because they are bad but because there will be too little market share to fight over.

Almost every sphere of activity will see technology (and that will usually be technology available to large organisations) and disintermediation have a massive and increasing impact. Obviously law is not immune and neither is the justice system

I am working my way through Richard Susskind’s latest book, The End of Lawyers?, at present. (There is a great deal of new stuff there – if you think you know what he is going to say because you have read his pieces in C&L or in The Times or have listened to his lectures, you are wrong.) For the first time, my reaction, is not ‘we are a long way off that, get real’, but ‘why not now?’ There is little doubt that one effect of the squeeze is that it makes low-cost alternatives more attractive, and low-cost alternatives in the context of the practice of law, whether in the context of the law firm or court hearings, tend to involve technology. All the big tickets items that Richard Susskind talks about are affordable in the context of a client demand that will insist on an increased degree of commoditisation and control – and I do not mean client demand in terms of market demand, I mean client demand in terms of insistence.

Look too at the extraordinary increase in judicial expectations of technology demonstrated in R v Chambers [2008] EWCA Crim 2467. And that’s in a criminal law case – in civil proceedings expectations are even higher. E-disclosure is sometimes seen as a big ticket item but, as is often rightly pointed out, it is large-scale discovery that is costly. It believe it will be a bumper year for e-disclosure specialists – as judicial expectations rocket, and complex litigation increases (a recession can be good for that), no serious player will be without its e-docs specialists.

On a mundane level, two relatively simple developments of increasing importance in 2009 will be (i) the big law firm’s capacity to sell every type of service, à la Tesco, because of their investment in KM technology and document assembly tools, making it harder for niche firms to compete on price; and (ii) the increased popularity of remote online legal services (which actually fits quite well with niche firm operation), especially risk management tools.

There is too the lure, since I am on the theme, of so-called Tesco-law. For the most part it serves the market that never got served before, and nobody has felt much loss, but I think there will be a twist. Partly because the market has been devastated, I do think that we will see lots of Tesco-style conveyancing once (if ever) there is conveyancing to do again. This is one recession that conveyancers cannot wait out – the work will not reappear in the required quantity.

On a grander social scale, my guess for the big issue of 2009 in IT law, and perhaps in law generally, is that copyright will be reconsidered. There are numerous consultations and they will have unexpected repercussions. The push for years has been to extend and protect but it has not been in any way successful: copyright breach is a norm. I think that there is a real possibility that IP protection and the enforcement of rights will become a mainstream political issue in the next three years, as copyright holders have hoped for years. The catch is that the votes are not in increased protection but in reduced protection – copyright enforcers may become as much loved as traffic wardens. Moreover, the biggest wielders of copyright power are weakening economies with weakening political power and that could affect their ability to demand enforcement in smaller economies. If the political will to protect IP is lost because of all this, the technological drivers which make breach so easy will overwhelm the IP citadel in months. I don’t welcome such an extreme outcome but I do believe it is a real possibility – but, if it is any consolation, I notice traffic wardens did not disappear in a hurry.

Finally, I not only wish all SCL Web site readers a happy new year but predict that they will have one. This is mainly cause and effect because the Web site is due for a revamp that will improve your online experience (OK, partly cause and effect). But it is also because lots of the complex litigation that I anticipate in 2009 will require IT lawyers to steer it. So what you lose on the swings (the deals and the work that goes with them), you will gain on the exit dispute roundabouts.