Lawyers have objections about joining paperless digital age
In the summer of 1937, Chester Carlson was newly married and working as a patent attorney in the New York office of P.R. Mallory Co., a battery manufacturer.
Carlson’s work, like that of many lawyers, involved a huge amount of paperwork. To his frequent irritation, the technology available made it hard to replicate things like patent specifications — his office rarely had enough carbon copies, and the alternatives were either expensive (photo-direct copying) or time-consuming (retyping).
So Carlson, inspired by Thomas Edison, began experimenting with a fast and reliable way to copy paper documents. After years of smoky, sulphurous test runs in his apartment, he finally created the first xerographic machine. The invention hit the market in 1950 as the Xerox copier.
Invented by a lawyer, Xerox was the last communications technology to be enthusiastically adopted by the legal profession, says Ralph Losey, an American attorney.
The reason, he suggests, is that photocopying feeds the justice system’s addiction to paper. “The only thing law embraced really fast is the copy machine,” he said. “Because it was paper, only it was paper writ large.”
Losey is among a growing chorus of voices calling for greater digitization of the legal profession. Relying on paper makes lawyers more expensive, trials less efficient and the court system less accessible, they say.
Policy-makers in Toronto and Ottawa are slowly beginning to respond, opening up the justice system to the digital world, if only a crack. A number of changes this year are designed to make the federal and Ontario courts more electronic.
But for a variety of reasons having to do with temperament, habit, principle and practicality, the legal world remains reluctant to consign paper to the shredder of history.
Last November, a North York lawyer and mediator named Mitchell Rose published a stinging piece in Just magazine, taking satirical aim at his colleagues’ paper habit.
“Despite electronic courtrooms, ediscovery, online dispute resolution, social media and email, we remain paper-addicted reactionaries,” he wrote. “We love lofty-looking tomes. We crave the look on clients’ faces when we display 10 banker’s boxes of documents and they exclaim: ‘That’s all mine?’ ”
The law has always been built on mountains of paper. The range and variety of legal documents is virtually endless: affidavits, refusals motions, wills, complaints, deeds, subpoenas, writs, escrows (from the Old French escroe, meaning scrap of paper).
Much of the basic equipment of the lawyer’s trade revolves around producing, transporting, organizing and filing paper: the photocopier, the filing cabinet, the banker’s box (ironically), the wheeled briefcase, the legal pad.
Martin Felsky, national e-discovery counsel with Borden Ladner Gervais LLP in Toronto, estimated that his firm goes through millions of pieces of paper a year.
“Lawyers just love paper,” Losey said in an interview. “This one famous lawyer, I went into his office to visit him, and his whole floor was covered with papers. There was a little trail through them to his desk.”
In a document-heavy line of work like law, paper naturally dominated before the digital age. But as other professions such as medicine, finance and journalism have moved increasingly toward paperless offices, lawyers have lagged behind.
Some in the legal world say that technological conservatism comes from the fact that the profession naturally draws in temperamentally cautious people.
“The law is not supposed to change real quickly,” said Losey. “It adds an element of stability to society. And so it tends to attract people like that.”
“We’re always looking for the risks,” said Alan Macek, a partner at the Toronto firm Dimock Stratton LLP. “That’s our job in many ways.”
Brendan van Niejenhuis, a litigator with Stockwoods Barristers in Toronto, said that courtroom lawyers often can’t do without printouts.
Among other things, he said, having a sheaf of pages to flourish in front of a jury or judge can be more dramatic and effective than pointing to an iPad.
“I suppose that’s part of it,” said van Niejenhuis. “And I think sometimes prop is a useful word.”
But during trials, paper has more than merely esthetic value. For one thing, it allows witnesses, lawyers and the judge to have the same version of a document in front of them.
“There are so many pragmatic reasons why paper continues to dom- inate litigation,” he said. “It’s fairer. . . . It’s a lot more practical.”
Naturally, most of a lawyer’s work happens outside the courtroom. But there, too, paper has a tenacious appeal, insists Martin Felsky.
Felsky is the opposite of a Luddite. He is chair of the board at CanLII, a website that digitizes Canadian legal decisions. His email signature reads, “Please consider the environment before printing this email.”
But Felsky insists on the value of paper. It’s easier to read and more secure, he says — important traits in a profession that consists largely of reading sensitive documents.
“With paper, there are certain benefits that people enjoy,” he said. “You can spread a bunch of pages out on your desk. You can take notes very quickly and very easily.”
As well, paper documents seem safer from theft and tampering in a steel filing cabinet than in the ether of the Internet.
“Our role is to kind of keep information safe,” Felsky said. “Paper certainly feels a bit more secure for people. It’s locked up in a cabinet, and there’s only one copy of it. It’s difficult to use, but it’s safe.”
Losey rejects those arguments on philosophical grounds. He compares paper documents to the shadows that captives watched in the allegory of Plato’s cave. These days, most documents originate in computers, he notes; printouts are just projections.
“There’s a preference in the law for originals,” Losey said. “98, 99 per cent of documents are not original in paper. They’re originally created on your computer. . . . Nobody typewrites documents.”
Many lawyers fret that they aren’t able to reduce their paper footprint because the courts so often require physical documents.
In a 2014 ruling, David M. Brown, then a judge with the Ontario Superior Court of Justice in Toronto, concluded starkly that the courts and the legal profession had made themselves into “irrelevant museum pieces” through their overreliance on paper.
Brown, who in December was appointed to the Court of Appeal for Ontario, has been waging a crusade against the justice system’s paper fixation for years, writing a series of colourful, impassioned decisions that skewer the Ministry of the Attorney General.
Presiding over a 2012 case involving the sale of an Ottawa condo unit, Brown derided the absurdity of a system that required his staff to spend an hour retrieving relevant paper documents from a storage facility at 393 University Ave., across the street from his 330 University Ave. courtroom.
The litigants, Brown wrote, had to pay their lawyers for an extra billable hour, a relatively small but easily avoidable cost. The solution, he went on, was to replace the hegemony of paper “with a modern, electronic document system.”
“Perhaps some time, in an another decade or so, rumours of such a possibility may waft into the paperstrewn corridors of the Court Services Division of the Ministry of the Attorney General and a slow awakening may occur.”
Three years later, there are some signs of change. Blue-chip firms such as Borden Ladner Gervais have begun setting aside staff to figure out how to scale back on paper.
“The old methods just can’t keep pace anymore,” said Martin Felsky. Where once a legal proceeding may have involved a few boxes of documents, it will now often involve thou- sands upon thousands of emails.
“You just physically can no longer print that stuff,” said Felsky. “It’s just impossible.”
The courts are starting to take heed of this shift, if haltingly. Ontario’s Ministry of the Attorney General abandoned a $10.3-million overhaul of its court record system in 2013, but last August, the province began allowing residents to file electronically at a handful of small claims courts in Brampton, Oshawa, Ottawa and Richmond Hill. Toronto got the pro- gram in March, and it was expanded province-wide in early April.
At the national level, the Federal Courts Rules were changed in January to keep electronic court files. Until then, the court required that the official docket for any proceeding be kept on paper.
The changes, though heralded by many in the legal community, came with a catch. The new rules will come into effect, the Federal Court of Appeal announced in February, when the Courts Administration Service has enough money to put them into effect.
“That is not presently the case,” the announcement dryly notes.
Despite the slow pace of change on a bureaucratic level, in his own mediation practice, Rose has shifted decisively away from paper.
“On a given day, I’m mostly dealing with electronic documents,” he said. “I have been encouraging lawyers, just send me your briefs electronically. I’m going to get to the point very soon where I insist on it.”
“There are so many pragmatic reasons why paper continues to dominate litigation. It’s fairer. . . . It’s a lot more practical.” BRENDAN VAN NIEJENHUIS LITIGATOR