Litigation Checklists - A Walled Garden or Open Source?
Updated: Sep 2, 2020
This is part of Vail Law's Litigation Checklist.
I've written some previously about litigation systems--the potential to use 'litigation checklists' and 'lists of best practices,' and systems theory principles in general to better manage the complexity of litigation. The question for today's post is this: should these developments be hidden as the intellectual property of specific individual attorneys or firms, or should they be freely shared and offered to all for open-source development?
Protecting these developments as IP can create clear competitive advantages--more efficient litigation, better utilization of strategy, and superior management of general complexity may allow some firms or attorneys to provide superior litigation services and results. Of course, this would result in higher billing rates, more clients--ultimately more money in the attorneys' pockets. This is a powerful argument in favor of protecting litigation systems as IP.
On the flip side, there are many potential benefits from the open-source development of litigation systems. First, I am convinced that open-source development of these systems will lead to faster advances and better overall systems. Second, it will result in superior quality and affordability of legal services to the populace as a whole--something that I think is the obligation of the legal profession (and any career that aspires to call itself a "profession").
While I think attorneys are professionally obligated to pursue--at least primarily--the open-source path, I also think that open-source litigation systems will financially benefit the profession. Not only will more affordable bespoke legal services lead to a larger overall market for those services, but these systems will allow attorneys to better focus their time, energy, and talents on what attorneys should specialize in--advocacy (both oral and written), counseling, and developing the law to better serve the needs and challenges facing society. In the end, just about all other attorney functions can be automated, out-sourced, or otherwise marginalized, so any development that allows the profession to focus on its future strengths should be welcomed.
Jeff Vail is the founder of Vail Law LLC in Greenwood Village, Colorado (www.vail-law.com). He has extensive experience representing plaintiffs and defendants in all types of complex business litigation throughout the United States. View our entire Litigation Checklist.