How Law Practice Has Changed During My Career

Thu, Sep 8th, 2022 | by Miles Mediation and Arbitration | Article | Social Share

By Ken Shigley

Law is a mixture of continuity and change. From the first day of law school, we immersed ourselves in the archaic legal prose of long-dead judges. We still cling to vestiges of judicial dignity that sometimes echo our British brethren’s wigs, gowns, and “My Lord” formality. However, the pace of technological and social change has dragged us, often kicking and screaming, from echoes of the 19^th century in grand old courtrooms to Zoom, e-filing, unrestrained lawyer advertising, and emerging skills and practice areas unknown in the 1970s.

1. Diversity.

In the 70s, the legal profession was comprised almost entirely of people who looked like me – white and male. Carol Hunstein has a wealth of stories about the good old boy network when she began practicing in Decatur in 1977 before a judge who condescendingly called her “little lady.” She ran against him with the slogan “This Time, This Woman,” defeated the entrenched incumbent judge, and eventually became Chief Justice of the Georgia Supreme Court.

When I entered college in 1969, few female classmates expressed interest in legal careers. Some who did not initially see that as a possibility became among the earliest paralegals and then went on to law school and distinguished careers. My law school class at Emory was the first that was roughly half female, most of whom were more mature than callow boys like me. They excelled.

Similarly, African American lawyers were rare back then. The month I started work as an Assistant DA, I was present at the swearing-in of a new Black female Legal Aid lawyer, toward whom the judge was openly sarcastic. Like Carol Hunstein, she was a strong woman who followed mock Latin aphorism, illegitimi non carborundum. We still have racial and gender disparities in the legal profession, but dramatic change has occurred.

2. Lawyer advertising.

Lawyer advertising was common in early America. Abraham Lincoln advertised his law practice. However, by the end of the 19^th century, judges and silk stocking lawyers viewed it as too undignified and unprofessional in a gentleman’s profession. Bar associations strictly regulated what marketing was allowed.

When I was a student clerk in a law office, there were no lawyer ads in the Yellow Pages, TV, billboards, bus placards, or garish vehicle wraps ads. Even a boldface listing in the Yellow Pages was edgy. Lawyers in consumer-facing practices marketed themselves by word of mouth, working in civic organizations to get their pictures in the local paper and running for public offices partly to get their names out. One year out of law school, at 27 and looking about 17, I too ran for the legislature against an entrenched incumbent related to half the county. It could have ruined my life if 50 people had flipped their votes in my favor.

Of course, marketing to business clients in trade associations, chambers of commerce, and country clubs flew under the radar. Any old insurance defense lawyers who recall serving copious amounts of alcohol at Atlanta Claims Association conventions at the downtown Marriott know that was not always a genteel endeavor. The civilizing effects of women in law and insurance claims helped tone that down.

The environment for lawyer advertising began to change in June 1977, the month I was admitted to the Bar, when the US Supreme Court ruled in Bates v. State Bar of Arizona that lawyer advertising was commercial speech protected by the First Amendment. However, most lawyers and judges continued to view lawyer advertising as uncouth and unprofessional. While building my own plaintiffs’ practice, I was so old school that I avoided advertising as such other than an information website.

Now at least half the billboards and bus placards in metro Atlanta advertise lawyers. With many federal court cases constraining what the Bar can do to regulate lawyer advertising and barring any regulation of even appallingly bad taste, there is no way to put that genie back in the bottle.

3. Trials and Alternative Dispute Resolution.

Early in my career, civil cases were tried in court or settled through direct negotiation between lawyers. A higher proportion of cases went to jury trials, so it was easier for young lawyers to get early trial experience. I started as an Assistant District Attorney and later did a lot of appointed criminal defense work, trying about 60 jury trials to verdict in my first four years. The adrenaline rush of jury trials was addictive. Young lawyers in insurance defense firms had the opportunity to develop their skills in trials of minor cases. When I joined an insurance defense firm as an associate, I tried scores of such cases. Often judges twisted arms in chambers to facilitate settlement. But in most civil litigation mediation, the concept of private mediation through a neutral, non-judicial third party was unknown.

In the late 80s, a seasoned insurance defense lawyer, Ed Henning, became a full-time mediator. The senior partner of the firm where I practiced was appalled and frequently lampooned the whole concept in firm meetings. By the mid-nineties, I joined Ed’s panel of neutrals at the ADR firm he launched. Now several successful mediation and arbitration firms are operating in Georgia, the largest and fastest growing of which Is Miles Mediation. Jury trials are still the benchmark for case valuation, but only a tiny fraction of cases get that far. Most settle through mediation and negotiation.

4. Law Practice Technology.

The most apparent change in the daily routine of law practice during my career has been in the pervasive effects of advancing technology.

a. Dictation

For young lawyers today, dictation may evoke images of a grainy black and white rerun of Perry Mason telling Della Street to “take a letter.” In my first job as a lawyer in the late 1970s, we dictated to a secretary who took Gregg shorthand notes on a pad from which she typed a draft for review. Graduating from shorthand dictation, we went through several versions of dictation equipment, the Dictabelt, in which a stylus inscribed a groove on a vinyl belt rotating like a tank tread, recording up to 30 minutes of sound on each belt. By the late 70s, we dictated on cassette tapes, then to a Thought Tank” system in which all dictation was stored on an endless loop tape available to all our secretaries to type. Today, voice recognition technology has evolved so that lawyers can dictate directly to their computers and other devices and use editing software to do much of the cleanup. But having learned to type in high school, I haven’t dictated in decades.

b. Word processing.

Document preparation has similarly evolved. In the late 70s, our secretaries (yes, that’s what we called the wise women who made our work possible) typed on an electric typewriter, an upgrade from manual typewriters on which I learned in high school. As there was no electronic recording of documents, all corrections were made on the paper by erasure or correction fluid. I had one boss who drove secretaries mad by holding every page of every document up to a light and sending it back to be retyped if there were any erasures or Wite-Out corrections. Using carbon paper, secretaries typed documents in duplicate or triplicate. Erasures had to be done on each carbon copy, brushing or blowing bits of eraser from the paper. Eventually, NCR carbonless copy sets eliminated the messiness of carbon paper. Copies were on thin yellow or pink paper.

Where I started work as a lawyer, we were not early adopters of expensive new technology. In about 1977, I looked at computer kits at Radio Shack but didn’t see how those toys would be useful in a law office. (Teenage Bill Gates had more vision.)

Acquisition of a Correcting Selectric typewriter was a huge advance. It could backspace and correct a misstrike. However, more prosperous law offices had the radically new advance of the I.B.M. Mag Card Selectric typewriter, with one page saved on each magnetic card. That made possible corrections and edits without complete retyping and production of repetitive documents, changing only the variable terms. Then came the early word processing equipment, giant machines with tiny green screens, all obscenely expensive. In 1980, as a starving small-town lawyer, I briefly considered the purchase of a single word processing station about the size of a piano with a tiny green screen for $10,000, the equivalent to almost $36,000 in inflation-adjusted 2022 dollars. I couldn’t touch it. In 1983, the firm where I was then an associate purchased a word processing system with five secretarial workstations and noisy impact printers that required sound-muffling hoods. Those five workstations cost $65,000, the equivalent of over $193,000 today.

The IBM PC and Apple Mac entered the market in the early 1980s, but the firm where I worked did not buy them. By 1988, I brought into the office my own blazing-fast 286 PC with a 20 Meg hard drive and put it on my desk with a dot matrix printer. Everyone in the firm stopped by to stare and ask what the heck I was doing. Typing was a secretary’s job.

c. “Legal Size” paper and files.

Law offices stocked two sizes of paper, Then  as now, letters were on “letter size” 8 1/2” x 11” paper, though it tended to be fancily engraved letterhead on heavy Crane Bond paper with a high cotton content. Pleadings and other legal documents were typed on 8 ½” x 14” “legal size” paper, sometimes onionskin with the firm name printed in a margin. “Legal size” paper evolved because, during the time of Henry VIII, papermakers produced 17″ x 22” “foolscap”  sheets,  the largest size of mold that they had available. . By the 1920s, the paper industry standardized two commercial sizes of paper,   17″ x 28″ and 17″ x 22″. Letter and legal sizes were created by folding these in half. Secretaries typed drafts on a distinctive color of paper for review and editing. To economize, a firm where I worked recycled used paper by using the back side for drafts.

Well into the 20^th century, lawyers and court clerks filed legal papers by folding them twice, often tied with a ribbon, and filing them vertically, either alphabetically or by case number. As a young lawyer, I sometimes had to dig through archived court records in that format. However, by the 1970s, legal files required “legal size” folders. File cabinets in law offices had drawers sized to accommodate that size files.

Law firms prepared court filings and wills with manuscript covers, most of which were blue and thus called “blue backs. Appellate courts required color-coded covers for various types of documents. With manuscript covers, documents were bound at the top with ribbons or brads. While their use has diminished in the era of electronic court filing, manuscript covers are still available from law office suppliers.

d. Legal Research.

Leather-bound books were not merely decorative. We did all legal research manually in a law library. In researching case law, we pored through digests, bound volumes of case law and codes, paperbound advance sheets, and pocket parts in the backs of books. In writing briefs, I often trekked back to the Emory Law Library and spent countless late-night hours poring through bound volumes and loose-leaf update services. However, I knew one older lawyer who only bought pocket parts for the “little green books” of the Harrison Georgia Code every five years, figuring law newer than that didn’t matter in his practice.

By sometime in the 80s, before the Internet, online legal research became available through a dial-up connection. Associates in law firms rationed their time hunched over a Lexis-Nexis dedicated terminal with a green screen and tiny “chicklet” keys. Westlaw developed around the same time, and I eventually switched to it for many years. Unimaginable to lawyers back then, lawyers now can do word searches of vast legal libraries via a laptop or mobile device from home, a hotel room, courtroom, mountain cabin, or even a sailboat if they wish.

e. Package delivery.

Before the Internet, the physical delivery of documents was even more critical than now. In my first job as a student intern, I made many hurried trips to the airport to hand off a package of documents to an airline stewardess (that was the terminology for flight attendants at the time)  to courier to a distant city. That informal service evolved into Delta Dash. By the end of the 70s, FedEx and other package delivery systems were a growing part of our lives.

f. Telephones

In the 70s, office phone systems changed from rotary dials to push buttons. We looked up phone numbers in a phone book or talked with an operator in directory assistance. Direct dial was no longer a novelty, but we were conscious of the additional expense of long-distance calls.

In my first several years as a lawyer, only one person I knew had a mobile phone. A sheriff with whom I dealt as an Assistant District Attorney had a radiotelephone mounted in his official vehicle. By the late 80s, I too had a cell phone permanently mounted in the dash of my car. Some early adopters had portable cell phones the size of a brick.

By the early 90s, pocket-size phones with expanding features proliferated in fierce competition among  Nokia, Blackberry, Palm, etc. Text messaging through cell phones, which did not exist until a couple of decades ago, has become so routine with clients and opposing counsel that we require protocols to save those texts for documentation of agreements, etc.

Now the iPhone 13 in my pocket has more computing and communications capabilities than early NASA space vehicles. Combined with my Apple Watch, images of Maxwell Smart’s shoe phone and Dick Tracy’s wrist phone have become a reality.

g. Fax

Telefacsimile technology originated in the 19^th century. I first saw it as an eighth grader visiting a newspaper office in 1965, as a news photo slowly emerged dot by dot on a printer. By the 80s, fax technology began to proliferate in offices. In the mid-80s, the small insurance defense firm where I worked had a spirited debate in a firm meeting about whether to buy a fax machine. The senior partner thought it was useless because none of our insurance company clients or opposing law offices used it. He relented, and we got a fax machine that used rolls of slick thermal paper and found it highly useful. Eventually, we replaced that early fax technology with laser printers with fax capability. Now, except for the transmission of documents with medical offices, fax technology has largely gone the way of the buggy whip, supplanted by the transmission of scanned documents by email, Sharefile, Dropbox, or Google Drive.

h. Internet / Email.

When I was in law school in the mid-70s, one classmate who had worked in a Senator’s office in Washington had an exotic, suitcase-size computer with access to the Arpanet. That was an intriguing novelty, but its seemed to have little practical relevance to my life. That classmate became general counsel of a technology company that did well and eventually had a big “liquidity event.”

In the early 90s, we began to read about something new called the Internet. Intrigued, I started exploring the possibilities and was moderator of a practice area forum in a dial-up service called Counsel Connect. In 1995, I spoke at the Insurance Law Institute on “Practical Uses of the Internet in Your Law Practice.” It was a daunting topic as there weren’t many practical uses. I explained what the Internet, websites, and email were and that soon they too would use email.

There were then about 40 law firms in the US with websites, all in Silicon Valley or New York City. I told the audience I didn’t think anyone would ever pick a law firm based on a website, but I might give it a shot just for laughs. A few months later, aiming at affluent internet users who would travel to Atlanta for the 1996 Olympics,  I launched the first law firm website in the Southeast. It was a primitive 1990s-style effort. The client attracted turned out to be much more diverse than the Olympics visitors I had hoped to reach. Truckers in mobile home parks with dial-up AOL accounts and wives of Shepherd patients somehow found me. The search engines were Yahoo!, Magellan, Lycos, Infoseek, and Excite.   I was my own webmaster until 2003 when the emergence of Google made sophisticated search engine optimization necessary. My 1995 prediction that nobody would pick a lawyer based on a website proved wrong, much to my unexpectedly profitable delight.

i. Depositions.

Depositions have been a big part of my life for 40 years of tort and insurance litigation. For most of that time, the product of depositions was only a typed transcript that lawyers would read to the jury, with co-counsel taking the roles of lawyers and witnesses. It was always a challenge to make that interesting. In decades past, it was common for lawyers in depositions to make filibustering “speaking objections” suggesting to the witness either answers or lack of knowledge, and taking up more of the manuscript than the actual testimony. Fortunately, that abusive tactic fell out of fashion.

Court reporters at depositions in the 70s used a variety of techniques. Some used steno machines that encoded notes on a strip of paper. Other repeated questions and answers into a steno mask microphone and recorded their repetition of the procedure onto a reel-to-reel tape recorder. A few still took notes on a steno pad in Gregg shorthand. I knew one old gentleman who took shorthand notes with a fountain pen repeatedly dipped in an ink well. Now court reporters use computer technology to produce transcripts much faster and more accurately.

By the late 80s, videotaping of depositions for use at trial became increasingly common. That could be done by notice in federal courts. However, in the state courts of Georgia, it was necessary to obtain a court order or stipulation detailing the manner of taping. The orders and stipulations often went into absurd degrees of technical detail. Some lawyers began routinely filing a motion to authorize video depositions at the beginning of a case so that they would not be caught short later. In 1994-95, the State Bar Tort & Insurance Practice Section of which I was then chair, proposed an amendment to OCGA § 9-11-30 to authorize video recording of depositions upon notice, eliminating the need for an order or stipulation. A lobbyist for the insurance industry blocked that in the 1995 session of the General Assembly out of concern that physicians who were defendants in malpractice cases would not come across well in video depositions. However, the bill passed a couple of years later, and video depositions have been routine for a quarter century.

Techniques for the presentation of video depositions have evolved to prefer tight editing to give the jury the essentials at a brisk pace. Plaintiffs’ lawyers may lead off with the best clips from defendant depositions. That can be a powerful tool.

Telephone depositions were possible for a long time but usually were limited to tangential witnesses. Video depositions were possible by agreement of counsel but did not become common until the Covid pandemic of 2020. Zoom deposition practice has involved a tremendous learning curve for lawyers, court reporters, and deponents. Remote depositions may continue as a routine part of litigation practice long after the pandemic becomes history.

Anecdotal reports and observations concern the number of depositions not having returned to pre-Covid standards. That may be a more significant factor in matrimonial cases than tort litigation. Such a trend could reduce counsel’s ability to test stories and evaluate witnesses’ credibility and impede young lawyers’ development in examining witnesses.

j. Document Production.

Earlier in my career, I produced and received many large boxes of photocopies of documents in litigation. In addition, there were the document dumps in which opposing counsel would make copies available for inspection at their office, rolling in a cart loaded with 50,000 or more  pages of scrambled photocopies. In recent years, most document productions are in digital format provided on CD, flash drive, or by Dropbox or Sharefile. Unless optical character recognition (OCR) is blocked, one may attempt word searches of the digitally produced documents. Lawyers still play games of obstruction and obfuscation but in a different format.

k. Video conferencing.

During the “dot com” boom of the late 90s, the late Ed Henning and I talked over lunch one day about the 23-year-old zillionaires in Silicon Valley. We decided we needed to get a piece of that and began brainstorming about online mediation. We explored two options. First, we imagined live, real-time mediations by video conferencing. However, the broadband infrastructure for desktop videoconferencing did not yet exist. At that time,  it was only feasible with T1 lines, which were not commonplace in law offices. Second, we explored an asynchronous system using artificial intelligence algorithms to replicate the common patterns in live mediation. We had grad students crunch numbers from records of thousands of mediations to lay the foundation for that program. In 2000, I spent half my time flogging the concept to venture capital firms. One in San Francisco offered to fund the startup if we moved to Silicon Valley, but we had families and day jobs in Atlanta. A few months after the “dot com bubble” burst, I signed over my interest in that enterprise.

We were 20 years ahead of our time, envisioning video mediations when the technical infrastructure did not yet exist. With the Covid pandemic in 2020, video conference mediation, primarily on Zoom, became commonplace. Other than a few operator errors in managing breakout rooms and screen sharing, it seems to work about as well as live mediation. Similarly, courts have adopted remote videoconference technologies for hearings, conferences, etc.

l. Digital documentation.

With expanding technology, law firms transitioned from huge archives of paper files and binders to a paperless (or “paper-less”) practice. With the advent of digital signatures a decade ago and emergency recognition of remote notarization during the pandemic, the scope of files that firms must maintain in a physical format shrank further. That trend will not reverse.

m. Electronic Court Filing.

As a young lawyer, I wore out my little Datsun driving to courthouses to file pleadings on tight deadlines. Once, at about 4:00 PM on the day of a filing deadline, I got a call from a clerk’s office an hour from Atlanta saying they would not accept for filing an Answer that we mailed because my signature was in the wrong color ink. Either they required blue, and I had used black, or vice versa. Thoroughly stressed out, I fought traffic to the courthouse, arrived about a minute before closing time, and traced over my signature in the required color of ink. I can’t say that the current system of e-filing in Georgia traces back to that moment, but it was a factor.

In the 90s, federal courts began to implement a system of electronic case management and court filing in asbestos litigation. That spread across the entire federal court system in the early 2000s, and a few states began to develop their own e-filing systems. Having used the e-filing systems in federal courts and in Alabama, I fell in love with the concept.

When I joined the State Bar executive committee in 2007, I asked President Jeff Bramlett to create a committee on e-filing and appoint me the chair. In many calls to court personnel in other states,  it soon became clear that we could not just download the federal CM/ECF system and plug it in. We began to work with clerks, court administrators, and judges to develop a list of desired functions and criteria. Becoming State Bar president in 2011, I said it was “time to catch up with Alabama” and immediately set meetings with court stakeholders to push for e-filing. In August 2011, the State Bar Board of Governors passed a resolution calling for statewide e-filing and setting out criteria for such a system.

Among other things, I suggested to then-Chief Justice Carol Hunstein that we jointly create a Next Generation Courts Commission under the excellent leadership of Clarke County Superior Court Judge Lawton Stephens, to explore a variety of innovations including e-filing and video conferencing. The Next Generation Courts Commission included representatives of every group interested in efficient court operations except bail bondsmen. While some rural court clerks resisted, clerks from large counties were eager to move forward. Our team had almost weekly phone conferences with then-Associate Justice (later Chief Justice) Harold Melton, who later co-chaired the Judicial Council Technology Committee.

By May 2012, we planned to unveil the beta version of Georgia e-filing at the 2012 State Bar annual meeting that June. Taking a page from Steve Jobs’ playbook, Justice Melton, the AOC’s IT director, the Superior Court Clerk of the county that would host our beta site, and I would walk on the stage in black turtlenecks to present Georgia e-filing on a big screen.

We were blocked at the goal line by a political obstacle. If when I die, I wake up in a meeting with the Council of Superior Court Clerks leadership over the creation of e-filing, I will know I went to the wrong place. However, e-filing in Georgia courts became a reality over the next several years and is now a routine part of the infrastructure of law practice and court operations.

The innovations envisioned by the Next Generation Courts Commission a decade ago were essential to the operation of the court system during the Covid pandemic, which accelerated change into warp drive. Much of the credit belongs to now-former Chief Justice Harold Melton and Judge Lawton Stephens, the wittiest Superior Court Judge in the state.

5. The Next Half Century.

We don’t know what the next half century will look like, but we do know what that length of time looks like in the past. When I began preparing law school applications nearly a half-century ago, most lawyers and judges would have viewed as science fiction many of the changes described above that we have seen during my career. Will court hearings in 2062 involve artificial intelligence robots interacting through holograms in a virtual courtroom presided over by an AI robot judge? Or will climate change and war decimate civilization so that any of our descendants who survive fight out their disputes in a post-apocalyptic Mad Max environment?

We cannot see the future or what future transformative inflection points will generate waves of change comparable to the recent Covid pandemic. However, we can make some vague guesses, assuming current trends continue.

1. As my generation of Boomers passes from the scene, generations of digital natives will replace us. Technology is their first language, and geographical barriers seem almost irrelevant.
2. Technology will continue to advance in ways we cannot foresee. Rather than simply digitizing old ways of doing things, this will involve a root-and-branch redesign of the legal system through transformative process analysis, process mapping, process simplification, and then process improvement.
3. Law schools and continuing legal education will increasingly focus on competence with relevant technology. Traditional law schools will struggle to adapt to challenges from online education models.
4. Remote work and video conferencing that exploded through the crisis of the Covid pandemic will be a permanent part of our profession and court operations. The balance between in-person and remote meetings with clients and counsel, depositions, mediations, and court proceedings will evolve with ongoing experimentation and experience.
5. As technology makes geographical barriers less relevant, state-specific bar admission rules and status-based barriers to the delivery of legal services will erode.
6. Routine legal work will increasingly be a commodity service delivered by non-lawyers.
7. The trend toward “do it yourself” pro se appearances in routine legal matters will continue, with more lawyers offering unbundled services to consumers, e.g., drafting and reviewing routine pleadings and other documents without assuming responsibility for the litigation.
8. Artificial intelligence technology will further transform the profession and the delivery of legal services in ways we cannot now foresee.

The one sure prediction about 2062 is that unless I live to 111, I will not be around to see it.

ABOUT KEN SHIGLEY

Ken Shigley has 44 years of litigation experience in Georgia. Currently, he is a senior counsel with the Johnson & Ward law firm. He was president of the State Bar of Georgia (2011-2012), board chair of the Institute for Continuing Legal Education in Georgia (2012-13), served on the American Bar Association House of Delegates, and received the “Traditions of Excellence Award” from the State Bar’s General Practice & Trial Section (2019).A graduate of Furman University and Emory University Law School, Mr. Shigley also completed the Ultimate Trial Advocacy course at Harvard Law School, an executive education program at Harvard Kennedy School of Government, and four regional programs of the Gerry Spence Trial Lawyers College. He has successfully handled litigation of cases in 93 of Georgia’s 159 counties.