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  The National Law Journal

May 7, 2001

Lawyers and Technology:
Instant legal messages

By Jeffrey Beard

Instant messaging has tens of millions of die-hard users but few big fans in the legal scene. That's understandable: Most older lawyers think of it as a way to gossip and to swap music files. But the teen-agers are onto something. Instant messaging is changing how people are working and helping them save money.

Instant messaging allows computer users to carry on instantaneous conversations, but instead of talking, the participants are typing. It is similar in style to Internet chat rooms but is more private in nature. The most popular programs are free, notably America Online Inc.'s Instant Messenger (AIM) and ICQ (pronounced "I seek you"). In the corporate world, Lotus Development Corp.'s Sametime offering is making inroads.

Slowly, though, instant messaging is entering the legal arena, especially among litigators. There are three vendors who offer remote depositions -- enabling the delivery of the text and video feed from a deposition to a desktop computer over the Internet. DepoCast, from LegalSpan Inc., DepoStream, from realLegal.com and I-DEP, from I-DEP.com, are the three streaming deposition products; all three have built-in instant messaging. DepoCast and I-DEP feed both live audio and video across the Internet, while DepoStream sends just text. (RealLegal.com is part of law.com, whose major owner, a private equity fund, is also the major owner of American Lawyer Media, which publishes this newspaper.)

"Since its inception, we have performed a large number of broadcasts throughout the U.S.," says John Davis, president of LegalSpan.

As intriguing as this technology sounds, remote depositions aren't meant for the lead lawyer in a deposition. It's simply much harder to gauge a deponent's demeanor, reactions, veracity and so on by text or video. But the services do allow more peripheral attendees to participate without ever leaving the office. And that's where instant messaging plays a key role.

All on-site and remote attendees can send private text messages to other participants on their side of the controversy. They can even enter objections remotely into the record.

Instant messaging allows a senior partner to remotely assist an associate, or lets clients feed questions to lawyers. Likewise, a deposing attorney can ask a colleague to do some quick research on the fly, all without missing a step or showing his or her hand.

There is a power in simplicity, and instant messaging is not much more than a scrolling series of written comments, much like a private real-time transcript. It is like a stealth layer of communication during key events -- depositions, negotiations, conference calls and, especially, trials. All anyone knows is that someone is typing.

But when instant messaging is used in certain proceedings, there could be ethical or at least procedural implications: Who should be entered as making a formal appearance? Is there any prohibition against experts or other witnesses participating in, say, a deposition via streaming technologies and instant messages? Which communications are protected and privileged, especially if an expert is concerned?

One of the best things about an instant message is that you know whether the recipient is online at the time. The programs indicate who among your frequent correspondents -- "buddies" in AOL-speak --is actually on the Internet. With e-mail, you're never quite sure when someone is even going to read it, much less respond.

Instant messaging is also perfect for assembling virtual teams on the fly. Lawyers can engage in discussions and file transfers in real time because they know who's available.

Unlike e-mail, however, there is no common language of instant messaging. The different messaging programs don't speak to each other. While some vendors are working toward making the programs compatible, they are not there yet. Because America Online commands most of the consumer market with AIM and ICQ, some enterprising vendors, like Lotus, are making sure that their products work with them. Others, notably Microsoft Corp., are trying to develop a vendor-neutral standard, presumably to break America Online's dominance.

Most of these messaging products are also not designed with lawyers in mind. It's possible for a committed computer miscreant to exploit their weaknesses. But as instant messaging penetrates the business world, vendors are starting to take a serious look at beefing up security and building a product meant for corporate America, not a teen-age wasteland.

With the change in economic climate, many firms are looking to cut travel and other expenses. In this environment, instant messaging could become the next killer application. Of course, there is that pesky issue of being too wired. My solution? Like most communication tools, it does come with an off button.

Mr. Beard (jbeard@quarles.com) is a legal technologist at Milwaukee's Quarles & Brady. This article originally appeared in the May 7, 2001, edition of The National Law Journal.

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