Thinking Digitally

It takes all types to make a world, so perhaps there are people who actually appreciate and/or read the popups that read something like

“By checking this box I acknowledge I have read and agree to the User Agreement…” [consisting of dozens, hundreds, or thousands of virtual pages of indecipherable gobbeldy-gook].

114_thinking-digitallyOf course, in order to consummate the transaction, you have no choice – you HAVE to check the box. Nevertheless, courts routinely hold that users who check the box have thereby bound themselves to the substance of the said gobbeldy-gook.

I bring up this example to pose a question: Is that which binds the user a document; or is it a data point, meta or otherwise?

I don’t raise this question to be churlish or legalistic; but rather to point out an increasing and accelerating trend towards the evolution, if you will, of what were formerly regarded as “documents” into pure “data”. The transition seems to be a continuum. First, paper documents were converted to electronic form and stored, with added meta-data. Rapidly, the meta-data itself became first useful, then essential, and (in some cases) of greater significance and greater accessibility than the content of the document.

The move to “born electronic” documents moves everything further along the continuum. The distinction between “content” and “meta-data” has gotten real blurry, in case you haven’t noticed.

In fact, more and more, “forms” are replacing “documents”. The form’s actual IDENTITY – what it IS-  (A Motion for a Continuance? A Change of Attorney?) has become meta-data. There is no verbiage; only identification of the transaction type and the relationships.

Among the many implications of this evolution – which is either approaching or has hit the elbow of the asymptotic curve – is that “Records Management” in the historical sense no longer has much relevance. Concepts related to paper and physical files provide little guidance and much confusion when applied to data. Just one example: In the world of paper and physical files, no one asks how many places or in how many documents the name of the defendant’s attorney is stored. In the digital world, the name of the defendant’s attorney may not actually appear in any record or data on any of her cases. Instead, there will be pointers to a central file with all the attorneys’ names. What happens to the old case records when the attorney gets married?

I bring this up not because I believe problems to be pervasive or difficult to surmount; but because it sure seems to me that the entire subject requires a way of thinking completely different from the old ways. Someone probably has a better term, for now, I’ll call it “Thinking Digitally”.

Courts that are thinking digitally will be wanting to “data-tize” what used to be files and documents as quickly and deeply as possible. Essential tools include robust ECM including E-Filing and Workflow, integrated at the data level with Case Management Systems, with data-level intersystem communications among business partners. Without these tools, it’s hard to imagine how anyone can manage “records” at the data level. Because, let’s face it, at the atomic level, the data is a bunch of ones and zeros. Without knowing where it came from, how it was created, how it was processed, when it was “approved” (“By checking this box’ I agree…”), and so on, you CAN’T know what to do with it or how to manage it. Think of the marrying attorney. Multiply that situation by a zillion.

You can bet that Microsoft keeps track of when you checked the box; and you can also bet that they don’t keep a copy of their “Agreement” for everyone who checks the box. Developing the rules, processes, and procedures for today and tomorrow’s records requires thinking digitally about ALL information, whether it is or previously has been contained in a document.

 

Who’s Got the Kurzweil?

63_kurzweilFor those who do not know of Ray Kurzweil, I can only encourage you in the strongest possible terms to look up information about him.  A good starting point is his (extremely understated) career summary.   Far more extensive and interesting is the entry in Wikipedia.[ii]

 With no room in this blog to go into any detail about Ray, I will only say that to me, in addition to his achievements as an inventor, entrepreneur, writer, and scientist, he ranks as one of, if not the most exciting, far-seeing, and effective futurists of our age, measured from the last quarter of the 20th Century until now.  Since, among other things, he both intends to and has a very detailed and practical plan to live forever, his influence may well continue for some time.

In July, the Wall Street Journal posted a video, described as follows:

 “In this live chat from Tuesday, June 23, Ray Kurzweil, Google’s director of engineering and a WSJ Startup of the Year mentor, answers entrepreneurs’ questions on the future of artificial intelligence, the importance of patents and what’s next for Google.”.[iii]

 The video is almost an hour long, and worth every minute of your time. Among his many accomplishments, Mr. Kurzweil has been one of the most successful creators of disruptive technologies of the past forty-five years, successfully identifying, inventing and marketing technologies and products that have changed the world.  So when he makes a prediction, it pays to listen.

I want to point out and comment on one specific observation that has particular relevance to courts’ imperative to aggressively implement electronic document management.   In response to one question, Mr. Kurzweil gives a very succinct description of the development and evolution of image scanning, optical character recognition (OCR), and search technology involving documents.  His position is that each of these technologies emerged when (and only when) computer processing power achieved price/performance levels sufficient to make them practical.  OK; nothing too startling there.

But then, he explains that what he and Google are working on now (perhaps “perfecting” is a better term”) is the next level in the evolution: Software that reads and analyzes the document content — what was called “the Blob” in the early days of digital document storage.   This incredibly disruptive technology is now possible because of the exponential growth in computing power; and Google and others are racing to bring it to market.

In the video, Mr. Kurzweil is necessarily giving brief answers and only points out that this technology will completely replace what we know as “search engines.”   That, in itself, is pretty disruptive.  However, it will do a lot more than that.  For courts, this will be an advance that may fundamentally change the nature of both court operations and judging itself.  At the very least, it begins to enter the realm of law clerking.  Moreover, the already high value to outside users of court information can also be expected to skyrocket.  We can expect even greater demands for court documents to be available for analysis as the entire field of data analytics, which is daily being discussed in the news and in every corporate board room, comes to the courts.

Of course, there is still one little caveat (ok; maybe more than one; but this one is significant).  Analytical software, no matter how sophisticated or fast, won’t work on paper or microfilmed documents.  As with all things evolutionary, the next step will be achievable only after the previous steps have been taken.  Thus, the motivation and urgency for courts to adopt, and adapt to, Electronic Content Management continues to accelerate and increase.  Worst case, courts that are too far behind the curve will find themselves first marginalized, then at risk of becoming completely irrelevant as the rest of the world passes them by.