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Law and ‘Digital Natives’

Law and ‘Digital Natives’

Digital Natives – The advent of large legal databases, available over the internet for instant access and research, coupled with the relatively inexpensive availability of 4G WiFi and the almost universal penetration of smart phones has changed the courtroom forever. As Berring explains ‘Many lawyers … remain creatures of the old information, and will never change their views of how things ought to be.  However, they are being superseded by newer researchers, who come to the progression as devotees of electronic information.’[14]

In the court room, many young lawyers (digital natives) no longer bring copies of legislation, court rules, or cases, instead relying upon their ability to access this information with a tablet or smart phone.  To older lawyers (often not digital natives), used to dragging large brief cases full of books to the court room (often just in case a point arises) the almost carefree attendance of younger lawyers with only a writing pad and a few documents appears like a lack of preparation.  In some cases it is a lack of preparation, with the lawyer comforted by the thought that they can look things up in court (rather like the false comfort that one can look up answers in an open book exam); but in other cases there is a change in how lawyers access the law, and their preparations.  Remarkably, we are also seeing a retreat to statutory provisions and first principles by many young lawyers, presumably driven by the overwhelming volume of case law now available and changes in legal education: no doubt this will soon lead to a greater demand for machine analysis of cases to better expose the decision making norms.

The ready availability of materials that are free to access, primarily on AustLII, has resulted in AustLII being the most common source of legal materials used electronically in the court room.  I suspect that the subscription services currently face three key difficulties that do not confront AustLII:

  1. The subscription services remain relatively expensive, and often out of the reach of smaller firms;
  2. Subscription services face the difficulty of having to protect their content as it is their business asset, thus often do not appear to have provided login systems that allow lawyers from firms to easily use their own devices;
  3. The subscription services are often slower to load on a device as a result of the complex screen rendering designs.

It also seems likely that in the future subscription services will face the difficulty that their rendering of information does not easily permit re-use of the information, even for the most simple things such as occurs with screen scrapers for automated bibliography programs, such as Zotero.[15]

The most significant change in behaviours is that of the self-represented[16] litigant.  The array of un-represented litigants highlights at least one criticism of Prensky’s thesis: not all digital natives are adept with the new technology.  However, in those adept with new technology, the digital natives capacity to overwhelm the court and their opponents with material is greatly enhanced by the use of resources like AustLII.  The well prepared un-represented litigant may come to court armed with numerous authorities (sometimes relying upon single (or even partial) sentences from each case).  Some bring clean copies of judgments, others produce tattered and incomplete copies of decisions, many assume that the court will be familiar with every AustLII case (or have it available on the bench) and that they don’t need to provide copies to the court.  This makes the need to judicial access to the internet, from the bench, or at least a court office that can access the internet and print material important in such cases.

On an entirely pragmatic level, whilst the appeal courts may be able to insist upon ‘Authorised’ versions of decisions from the parties, the battle is long lost in the busy trial courts, even with many lawyers.  The courts must respond by changing with the new socio-legal cultures that technology has brought.

Read more here by Judge Grant Riethmuller

Maroochydore / Noosa / Caloundra

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