Legal Technicalities

Personal injury attorneys can now use computer animation to illustrate accident scenes, but attorneys in all legal areas find it helpful to keep apace of the latest technological advances.

Mark T. Banner, a partner with Banner & Witcoff in Chicago who specializes in patent, trademark and copyright litigation, says, “While the Internet has made it more difficult as to certain areas of the law such as copyright technology, it has made the practice of law easier. It’s easier to do legal research, and portable computers have made our practices more mobile.” He believes that, while technology and other social changes occur ahead of the law, technology has not outpaced the law. “The law adapts to technology just like it does to social changes and mores,” he says, “and it doesn’t adapt in advance or in lockstep.”

David C. Hilliard, a patent, trademark and unfair competition attorney and a partner in the Chicago law firm Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, says technological advances are not recent phenomena. Referring to Cyberspace and the Law of the Horse, an influential 1996 article by 7th Circuit Court of Appeals Judge Frank H. Easterbrook, Hilliard compares the advent of the Internet, computer animation and e-mail with telephones, television and other technological marvels. “When each one came along, there wasn’t a new area of law created to deal with the new technology. There was no new law of the horse, such as going too fast on the road. Instead, it was considered as part of the law of torts, which already existed.”

Applying this analogy to the Internet, Hilliard says, “When the Internet emerged, many people thought this was a lawless area and they intentionally violated copyrights and trademarks via the Internet. Courts applied the existing law to say, ‘No, you can’t do that.’ The whole body of trademark and copyright law kept on working, even though it involved cyberspace. There was no specific law of the Internet that arose. The whole body of existing law keeps on working, even though it involves cyberspace.” Lawyers are challenged to keep one technological step ahead of their clients, or to at least be able to communicate with tech-savvy consumers of legal services.

“It’s important to keep up with new technology so that you can talk with clients about their worries and about other parties’ wrong-doings,” Hilliard says. “Attorneys can’t be mystified by new technological concepts. They have to understand the field to be responsive and to solve problems. Otherwise, the client will go elsewhere.”

Gary M. Ropski, an intellectual property attorney and president of Brinks Hofer Gilson & Lione in Chicago, says the courts sometimes grapple with new technology. “However,” he adds, “even though the Constitution was written before many types of technologies were developed, it has served us well over the years.”

Ropski says intellectual property attorneys must keep up to date. “Many intellectual property attorneys have backgrounds in science and engineering, and we read trade publications and scientific publications to look for information on science to stay abreast of new developments. In addition, law firms that specialize in intellectual property constantly hire an influx of new, young, talented scientists, engineers and patent agents that conduct seminars to train the firm’s lawyers and clients on new technology. Whenever a new technology emerges, most firms form a new practice group.”

Banner says, “It’s essential for lawyers to keep up with technological advances in all types of practice areas, including probate law, medical malpractice and ethics—stem cell research, end-of-life issues and living wills.” Ropski agrees. “It is extremely important for lawyers to keep up with new technology,” he says. “Some issues and disputes in certain cases revolve around a certain technology, and lawyers have to learn about the technology and use it as a tool to explain the issue to the jury.”

Banner says the practice of law has changed immensely since he started practicing law in 1980. “There were no personal computers back then,” he says. “Everyone laughed when I got a computer—they said I was trying to be a secretary.”