In Brief: The Columbus Bar Blawg

by Bradley W. Miller, Burton Law LLC

Johannes Gutenberg is credited with inventing the movable type printing press in around 1440, allowing books to be printed cheaply and relatively quickly. At the time, his invention marked the beginning of the rapid spread of knowledge around the world.

Five hundred and seventy years later, there is finally a new medium for the even faster spread of knowledge: the eBook. An electronic book, or eBook (sometimes spelled “ebook” or “e-book”), is simply a book-length publication in digital form that is readable on computers and other electronic devices (from Wikipedia). Often an eBook is merely a digital version of a traditional paper book. However, the number of “books” in digital format only is quickly growing.

Always slow to see change – our legal system is based on precedence after all – eBooks haven’t made much headway into the legal profession yet. But it is likely only a matter of time before they start turning up on a regular basis. What does this mean for you as a lawyer, law student, or other member of the legal industry?

Effect on Lawyers (and Law Students)

For lawyers, the idea of having an entire research library available wherever we go is a dream come true. With eBooks, that dream can be a reality. An entire library of case reporters, practice guides, and court rules can fit on a portable thumb drive or a modest-sized computer hard drive. This can then be taken home, to court, or even to the beach and accessed via a laptop, tablet, or e-reader. With a portable library of eBooks, a lawyer can work anywhere.

I can remember lugging heavy case books back and forth between classes in law school. With eBooks, there are no more large books to embarrassingly drop in the hallway. Imagine going to class with nothing more than a lightweight iPad and a large travel mug of coffee. I’m sure law students would welcome the decrease in muscle and back pain.

eBooks provide more advantages over traditional print than just size and portability. With an eBook, you can copy and paste quotes from the eBook directly into a brief or your class notes. Some eBooks allow you to write or annotate in the actual text, just like you would highlight or write notes in the margins of a physical book. Unlike traditional books, you can quickly search in the text of an eBook for a specific word or phrase – a helpful way to parse through a lengthy case or chapter. And if you are connected to the internet, you can click on links within the eBook and be sent directly to the relevant cases or other legal research sources.

Effect on Law Libraries

Most firms and legal departments have some sort library for legal research. While much of the legal research today may be done through Lexis or Westlaw or another one of the online legal research providers, it is not practicable for everyone and every situation. Online access can be too expensive for small firms and solo practitioners, those firms with a nationwide reach that require expanded coverage, or a highly specialized niche practice needing unique access. For new or novel areas of law, before you can use the online databases you need at least a basic understanding of the main concepts to determine the key search words and phrases you will be using. Plus, the online research providers are usually not the best way to get resources such as practice guides and court rules. For these reasons, most lawyers still maintain access to a physical library, even if it is only a bookshelf with a handful of worn practice guides or photocopied court rules.

Perhaps the greatest impact of introducing eBooks, or even making a complete digital conversion of the legal library, is access. While lawyers and support staff have many resources at their disposal for researching, writing, persuading, and presenting, the one resource they only have a finite amount of is time. When there is an impending deadline to meet, sometimes you need to stay late or even take your work home with you; often the best time to get work done is late at night after everyone else has gone to bed when you can focus on the task at hand without distraction.

Surveys of attorneys consistently rate maintaining a healthy work/life balance as one of their biggest struggles. Having the flexibility to work from home or outside normal business hours is a good way to manage that struggle. For attorneys away from their desk, having access to the legal resources normally only available at the office can allow for increased productivity. That can translate directly into dollars.

The other big effect of the digital library is the lower cost of infrastructure. Let’s face it: books take up a lot of space. A modest library of some practice guides and CLE materials might only take up a few shelves or a bookcase. As law firms and legal departments attempt to minimize their costs though, even a single bookcase can take up valuable space. Imagine what you could do with an extra four feet of space in your office. Imagine what you could do with an entire room that is no longer needed to house books.

eBook Adaptation Considerations

Before you go rushing out to replace your current library with eBooks, there are some adaptation issues to consider. Foremost is format and device support.

Back in the mid-1970s, there were two major players in the videotape market. One was Sony with its Betamax format. The other was JVC/RCA with VHS. Neither format was compatible with each other: you needed a Betamax VCR to watch a Betamax video, and a VHS VCR to watch a VHS tape. By 1980, VHS had become the de facto standard, and today Betamax tapes are collecting dust in attics or waiting to be sold in garage sales and flea markets.

Almost thirty years later, a similar video format war erupted between HD DVD and Blu-ray to be the successor to the DVD. Again, the competing formats were incompatible with each other. If you purchased an HD DVD player or movies though, you know which format came out on top (you can still get some great deals on HD DVD movies from people selling them on eBay).

Those are just two of the examples showing the importance of format. Right now there are three major formats for viewing eBooks. The first and most ubiquitous is PDF. PDF was created by Adobe for desktop publishing, and it is now a standard for archiving and used by many courts for efiling. The benefit of PDF is that it can be read on nearly any device, including computers. However, the PDF format is not optimized for eBooks or mobile viewing.

The other two formats, which were designed specifically for mobile viewing, are MOBI, which is an Amazon proprietary format, and ePUB. For reading on computers or tablets such as the iPad, most of these devices have programs or applications (apps) that will allow you to read both formats. Because e-readers are often made by content providers (e.g., Amazon, Barnes & Noble), it is in their interest to only allow their devices to read their own proprietary formats. If attorneys or support staff will be using e-readers, the format is important. Some eBooks can only be found in one format, so research should be done before implementing your digital library.

Another consideration is mobility and where the eBooks are housed. If the eBooks will reside on servers, whether on-site or in the cloud, then the users will need to have internet access to connect to the server and read the eBook. The other alternative is to allow users to download the eBooks onto their device, or to provide pre-loaded devices to users when they need access to a resource.

Some of that decision, though, will rest on whether the eBooks are purchased or licensed by the firm or law department. With traditional books, generally once you provide payment the book is yours to do whatever you want with it – subject to intellectual property rights. Besides an outright purchase, eBooks allow for licensing models whereby publishers or legal resource providers can merely allow you the use of the eBook rather than give an ownership interest. The licensor can restrict how the eBook is used and for how long (by either number of uses or length of time). An example of this is in the movie industry, which uses a licensing model to stream movies to your computer or television over the internet.

A brief word on price. You may think that because eBooks don’t require printing and can be distributed relatively cheaply, they will/should cost less than traditional books. This is not necessarily the case though. While some publishers will discount the price of eBooks so they are less expensive than traditional copies, many publishers base their prices on the perceived value of the book rather than the cost to make it. Under such a pricing model, the medium used is irrelevant. So while for the most part eBooks won’t cost any more than a paperback or hardcopy version, they may be priced the same. I expect value-based pricing to become the prevalent model for legal eBooks.

Future of eBooks

The printed book hasn’t changed much since Guttenberg. Sure, the printing process might be a bit different, but it is ultimately putting ink on paper. Unlike these traditional paper books that are static once printed, eBooks can be dynamic.

I have no doubt there will be increasingly more interactivity between the eBook and reader as time goes on. Besides links to external sources, which is already being used, perhaps someday you will be able to watch videos that are embedded directly into the text. These videos might be live news fees relevant to the topic you are reading about, a recording of the oral arguments in the case that was mentioned, or a video chat session with leaders in the field discussing a particularly troublesome legal concept. All superimposed on and part of the page.

What I think is the most exciting future prospect is self-updating content. Never again will you need to worry about whether what you are researching and citing is good law – the text will automatically update to indicate how the case that came out last week impacts the statute you are working with. Gone will be the days of the pocket part and case book supplements.

Will eBooks replace physical books? Eventually, I think so. More and more law firms and companies are moving towards a “paper-less” practice. Courts are instituting mandatory efiling. New devices come out every day that make it easier to work with digital files. Digital is clearly the future.

There are some who just like the feel of paper, whether for reading or writing on – I personally like to write meeting notes by hand before scanning them. However, as more and more lawyers join the profession who have been surrounded by and using computers since birth, working with paper will soon be outweighed by the convenience and efficiency of keeping everything digital from start to finish. Until then, it might be time for me to start stockpiling pens and legal pads.