July 1, 2007

The statistic that stayed with me for far too long this week was that approximately 1 in 25 visitors to Wikipedia edit or contribute. It seemed extraordinary that a resource that was used as the major reference source for everything from pub arguments to geography homework could have so many committed and dedicated persons associated with it. Indeed the statistic nagged away at me to such an extent that I was eventually driven to check it – it turned out to be wholly inaccurate. But it had started me thinking about Web 2.0 and a participative and collaborative culture, its implications for lawyers, participation inequality and the lessons for participative magazines like this one.


Web 2.0


There is a well known clash of views about Web 2.0. Most techies say something along the lines of ‘it is just a load of hype and entirely without substance’. Marketing departments and many in creative media look at Web 2.0 and see a new wave of applications and a revolutionary force for change. Who is right? They both are right in their own way.


The new applications aren’t very new. News broke this week of the student at the University of Bath who sold his HolyLemon.com site for £650,000 – it is described as like YouTube but created two years earlier. So YouTube is not even remotely original and neither is there much new technical element in Wikepedia, MySpace, facebook, blogs or Second Life. It is not the applications that are exciting and perhaps even revolutionary, it is the application of them. It is that simple truth that has been readily grasped by marketing departments and entrepreneurs.


The social impact of collaboration and participation is new even though the undoubted joys of both are not. The social impact is continuing and powerful. It is highly questionable whether the change in culture really has much to do with IT at all. Very often the best part of a show is the bit we contribute too – kids singing along at the panto or rock stars pointing their mike at the crowd. So-called interactive TV shows have long since realised the great attractions of involving people – to the point where half TV shows seem to involve judgements by the people on performances by the people. Cynics question the quality of the end product – well, cynics would. Of course, like Groucho not wanting to join any club which would have him as a member, I am as wary as any cynic of relying on any source of ‘expertise’ that will let me contribute to it but the cynics don’t quite get the power that these tools have to create an ownership of the end product or the power that this ownership has to colour perceptions.


I genuinely believe that the cynics are wrong on most fronts as regards Web 2.0 – insofar as it is hype, it is a strange new animal, hype with substance. The complex patterns of social interaction are being rewoven and the tools we use to communicate are both affecting that and are required to keep pace with it.


Legal Applications


So how important is Web 2.0 for legal practice? Issues about its importance in the legal field echo the wider debate.


We are told that blogs and wikis will have a major impact on legal practice and the sceptics make noises that suggest it is no more than flash-in-pan marketing hype: ‘there is no profit-making or cost-cutting element in any of this so lawyers will not adopt it’.


Richard Susskind in his SCL lecture in 2006 covered one point most succinctly in these words: ‘A whole generation of young people, and indeed young lawyers, are coming through for whom [sharing, collaboration and instant messaging] will be second nature and for whom the kinds of working practices that have underpinned legal work for centuries will seem bizarre. Unless those of us operating in the legal world begin to put in place structures that support the way the net generation are operating, thinking, functioning and collaborating today, we will simply not be meeting their needs.’


For the moment, let’s put special emphasis on the reference to young lawyers. It is of course possible to get young lawyers to fit with the old methods – they will do it if the need is explained or if the paycheck is big enough. Nobody can tolerate an approach which thinks that research is complete and comprehensive after 30 seconds on Google or Lexis Nexis, supplemented by a few hundred words pasted in from Wikipedia. But then you wouldn’t employ people who think like that anyway. Collaborative ways of working and rules about confidentiality don’t necessarily sit easily together either but confidentiality does not always require people to work in cells on a need-to-know basis only. The brighter firms realise that the current influx of young lawyers who do ‘get’ collaboration and participation can enrich their firms and revitalise some neglected corners. They will create systems that enable those young and bright lawyers to work in their way and to the best of their ability – or see the best go elsewhere.


Allied to the analysis from Richard Susskind quoted above, but long preceding it, is a starker message. Charles Christian managed to express its essence in the title of Chapter 7 of his book Legal Practice in the Digital Age, published in 1998: It’s the Clients, Stupid. Grasping certain basic aspects of Web 2.0 is not really about making life easier for lawyers; it is about making the client’s experience better – and in 2007 that very definitely includes making the experience seem better because the client has the perception of ownership. Finding ways to do that while maintaining a professional ethos is the big challenge for technology departments and strategists.


Changing the client experience is not only important for the limited but influential minority of clients who are themselves involved in aspects of Web 2.0, it applies across the board. It will rarely be demanded in the way that old technologies once were (eg in the quaint days when clients made the use of e-mail a precondition of being admitted to the list of approved firms) so the absence of change will rarely be a direct threat to the bottom line. But those who fail to change will see clients drift away to those who do embrace participation and collaboration; even when clients feel that the process was smooth and the cost was cut to the bone, somehow the experience will be empty. That change in expectations will be gradual of course but all the signs are that it will happen.


Those dealing mainly with in-house lawyers will have it easy – collaboration is already part of the game; leading experts who wallow in their expertise or who came top in the course on patronising clients (held each year in secret at the Inns of Courts School of Law) will struggle. Finding ways to create client ownership of independent and truly expert advice is not going to be straightforward but new IT applications will be crucial – and some ‘smoke and mirrors’ tips might help. New ways of working with clients will be key, especially preventative lawyering, as will new attitudes. One crucial aspect of any type of legal work is the taking of instructions from the client; it is an essentially collaborative exercise but too many lawyers make it seem like something they control – it is not rocket science to make it be and seem collaborative. The opening up of files and billing information and giving clients access to libraries is already happening and is really quite Web 2.0. It is not hard to see attendance notes converted to (very limited access) blogs and the parallels between some precedent systems and wikis has been drawn before – add in instant messaging and it will all seem quite different. In technical terms it’s not very radical. In terms of profit-making and cost-cutting, it’s not really going to help. In terms of image and client satisfaction, it should make a big difference.


Participation Inequality


So, having spent 1000 words telling you how to embrace Web 2.0, what about looking closer to home?


The essence of Web 2.0 is participation. It tends to be defined by reference to the emphasis on online collaboration and sharing among users, indeed Wikipedia defines it in those sort of terms. But it is a strange sort of participation. The most convincing suggestions (in an area where figures are what you want them to be, it would be wrong to call any of the analysis statistics) show that online communities of all kinds tend to fit the 90—9-1/90 scheme, where 90% just read, 9% contribute occasionally and 1% contribute 90% of the copy. Wikipedia is suggested to be even more skewed, with one analyst claiming that it is more 99.8-0.2-0.003/66. Look at anything from hotel reviews to book reviews online – ask yourself what proportion of the users/readers actually commented and you can be sure that it will be tiny. Even blogging is not as open as it seems.


I will not dwell on perceived truth but it is pretty clear that this imbalance can give a special twist to all manner of things. That the hotel reviewer is more likely to be a dissatisfied customer than a satisfied customer is just about true but it is a fact that we are well equipped to discount for; we are less well equipped to cope with the fact that the reviewer is likely to be a particular kind of person – if you want to avoid negative online reviews for your hotel, make sure your Internet access is up to scratch and not too expensive because that is what counts to those likely to pen a review. In computing terms, any debate about the relative merits of the PC and AppleMac has almost always in my experience been dominated by Mac users. Is that because Macs are better – or is it because, historically, the profile of the Mac user suggests that he or she is much more likely to be engaged in the creative media and have streamed Internet access? And there is a very real effect on perceived truth in that search engine results are massively influenced by the number of active links and social media links are fundamental to that (and have an exponential effect on it).


There is insufficient space to do the arguments justice but the relevance of all this is that this magazine is affected by participation inequality. The vast majority of SCL members pay to read this magazine rather than contributing to it and, while it is part of my job to bewail that fact, it is not only inevitable  but it is as things should be in an educational context. What does matter is that SCL and the magazine operate with participation in mind. SCL can and does take steps to reduce the inequality and I do believe that the magazine is close to the ‘attainable ideal’ of 80—16-4/40, where 20% of the readership contribute and the large-scale contributors represent a reasonable proportion of the whole. Trying to make it easy to contribute (to the magazine and wider SCL activities) is one aspect of that and we are looking at all manner of ways to improve ease of participation.


We also need to guard against any warping of ‘truth’. In this context, that involves making sure that the concerns of the entire membership are met in these pages not just those of a few. I rely enormously for this on the input from the SCL Media Board but I also rely on the readership itself and the so-called ‘lurkers’ in particular. It is always enormously useful for me to get queries and requests for information as these highlight areas of concern – and of course analysis of Web site statistics enables us to monitor what is proving to be popular.


But it is still mainly a confidence issue. The old chestnut about there being a novel in everyone is manifest nonsense but it may very well be that every SCL member has an article in them. There is no master list of approved contributors – I am waiting to hear from you. Certainly all members have useful views and it is disappointing, for example, to find that so few have contributed to the online survey about OGC standard terms. Let me know if you have any thoughts on ways in which we can increase participation and fine-tune the relevance of our coverage, whether by the use of online fora or by a shift in emphasis. Go on, participate – it’s only an e-mail. Then we’ll collaborate. All very Web 2.0!


Laurence Eastham: lseastham@aol.com.