Researcher at Global Policy Forum, New York and Prospective Trainee Solicitor with Pinsent Curtis.
*I am grateful to Robin Widdison of the Centre for Law and Computing, University of Durham for initially suggesting that I write this and for his help and advice. The views expressed here and any failings are, of course, entirely my own.
Copyright © 1999 Scott Midgley.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
This article explores how information technology - in producing a major enhancement and enrichment of human-to-human communications - may radically improve the prospects for deaf members of the legal profession.
A modern Nintendo games machine contains more computing power than the main processor of the Apollo 13 (Cairncross, 1997). The rise of information technology has created an extraordinary sense of the possible. This article considers how IT may produce a similarly spectacular development in communications between those who are deaf and the rest of the occupants of the emerging digital world. The reader may shrug his or her shoulders and regard this as unwarranted speculation on what may or may not be possible. However, the full effects of IT are not yet fully quantifiable so some speculation is not only warranted, but necessary.
It has been established by the US Department of Commerce (1998) that IT has generated more than a quarter of US real economic growth over recent years. The technological overhauls that have already occurred have taken more than a generation for their effect to become quantifiable. A similar time lag could now occur before their full impact is finally realised. The tradability of output will change and there will be a transformation in labour markets as services converge across frontiers.
Increased technological accessibility means that huge amounts of legal information are becoming available on the World Wide Web at no cost. This will be of particular help to those community groups and voluntary bodies that are at the hub of work with disabled groups. If knowledge is power then this surely bodes well for those who use IT to its fullest extent. The spectre of the technological revolution redefining our world offers scope for those who are deaf to redefine their lives. Effectively, we could be looking at enfranchisement for those who are shackled by silence.
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'Blindness cuts people off from things. Deafness cuts people off from people' wrote Helen Keller. With these words, she encapsulates the essential nature of the problem with deafness as a sensory impairment. Whilst technology means that a deaf person will know when someone is at the door or will be able to use an appropriate alarm clock, it does not yet mean that he or she can communicate in the same complete way that hearing people can. How, then, can the boundaries of deafness actually be pushed backwards by information technology? By using it imaginatively, intelligently and with sensitivity. What appears to be extremely effective at the invention and development stage may in fact turn out to be of limited use to the individual user. Personal experimentation with the available products allows each individual user to negotiate his or her personal boundaries as fully as possible.
IT is driving the Communication Age. It has already provided such powerful new technologies as electronic mail, computer-aided transcription and videoconferencing, all of which have greatly expanded the scope for communication. These technologies in general - and Typetalk(1) in particular - have all provided the deaf and hard of hearing with greatly increased access to telecommunications. Such manifestations of information technology have also enhanced the possibilities of teleworking. Teleworking has been neatly defined by one leading commentator as 'essentially communications-based flexible working' (Simmons, 1996).
Teleworking has a rather different meaning to deaf people. It brings to mind the correlation between speech and writing and the way that our whole linguistic analysis of it has the potential to be redefined. The immediacy of speech with the certainty of the written word may hold the key to more assured oral interaction. A blessing from on high that would open up what is possibly a stubborn bastion of audiological confusion - the court room. As Brenells (1997) states:
'At the moment voice recognition techniques depend on the spoken word for text input. There seems no reason why in future the initial input may not be electrical impulses picked up by contacts placed on the body and linked to the computer system. There already exists a very rudimentary system for enabling the disabled to control machines by transmitting electrical energy from the human body, and it would seem possible to develop this system into speech recognition.'
Brenells even speculates as to whether text input might be triggered by thought waves! This promises a great deal for those whose primary means of communication is sign language.
Computer-aided transcription offers similar hope too. Real time transcription offers the possibility of making court proceedings accessible to the deaf and hard of hearing. In a recent publication of the US National Center for State Courts (1992), it is claimed that:
'For more than 24 million Americans with communication disabilities, the courts have been inaccessible. These individuals have been excluded from jury duty, denied due process, and deprived of employment opportunities due to discrimination and a lack of accommodation in the judicial system.'
With regard to real time transcription, Plotnikoff and Woolfson (1993 at p 105) state:
'New legislation on the rights of disabled people in the U.S.A. may oblige courts to make available real time transcription and it seems likely that in the future there will be pressure for similar action in the UK.'
Digital technology is being used in the latest hearing-aids and their ability to discriminate and decipher different sounds is said to be astounding.(2) Email-based tutorials allow a sure-footed development of learning and the effective assimilation of information. It is in fact 'parallel tuition' which can be added as a distinct layer, on top of tuition, lectures and reading, for visually focused students (Widdison and Pritchard, 1995).(3) A more systematic perception - crucial in legal education - may then be engendered. The point here is that email should not be seen as an alternative means of access to learning but as a complementary system. Suspicion about this complementary level of learning as a useful learning mechanism has been part of the author's own personal experience.
Legal futurologists make many predictions as to how the work of lawyers will be transformed. This may also mean that the way deaf practitioners operate will be significantly enhanced as a result of this transformation. Information technology is very heavily biased towards the visual aspect and as such can be particularly well suited to those with impaired hearing. Developments such as Livenote(4) are exciting for those who find it difficult to place complete reliance on their aural perception. Visual clues have always been heavily used to gauge as much information as possible. Examples of such visual clues include lip-reading, body-language and sign language.
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Sociologist Max Weber's ubiquitous 'anti-change agent' - by which he meant the force that prevents rational reform in the profession - presents a problem for those who have hearing disabilities, just as it does elsewhere. As Dean (1997) argues:
'As IT gets closer and closer to the core of the lawyers job resistance to its use grows. In part this is sheer conservatism and the "problem of priesthood" - reluctance to demystify and de-skill a task which sets one apart...'
Moreover, a pertinent feature of legal practice is that it is so focused on oral communication that there are some who believe that the profession precludes those who cannot, for instance, use the telephone unhindered or without aid. An inordinate amount of respect is given to those who are orally strong. Some go so far as to use oral dexterity as the ultimate measure of intelligence and effective lawyering. However, change is coming about as a result of pressures from other quarters as:
'...to some extent, lawyers have acted as "reluctant pioneers", the sheer necessity of finding a better solution to cope with the information overflow in legal systems has made them take an interest in computers'. (Bing, 1997)
Disability and disabled groups are growing in prominence both in terms of buying power and in numerical presence. Following the Disability Discrimination Act 1995, deafness cannot simply be ignored. The legal profession will be affected not only by advising on the impact of that legislation but also by the entry of those with hearing disabilities into the profession. Identity politics and the still continuing increase in the political presence of disability will play their part.
IT appears to be 'downsizing' society - causing it to appear less monolithic and more a loose association of distinct social groupings. The focus given to such social groupings means that more attention will be paid to the needs of disabled people. The trinity of legislation, market forces and enlightened awareness could bring about more of an American style approach to disability issues. As Abel (1989) notes:
'market forces and competition, once unleashed, generates its own almost irresistible momentum, both ideological and material: arguments against it quickly become unconvincing, and producers and consumers who gain from competition strenuously resist the imposition of restraints.'
The 'renegotiation' of professionalism - as articulated by Zander (1996 at pp 579-586) and Paterson (1996) - will bring about a shift in attitude. This will result in the lingua franca of customer satisfaction (i.e. efficiency, effectiveness and commercial sensitivity) being extended to disabled people generally. The historic pragmatism of the profession will probably assert itself for, as Charles Dickens wrote:
'the one great principle of the English law is to make business for itself'.
As society becomes more litigious, lawyers will be at the cutting edge, defining the assertions made by those who feel that they have been slighted as a result of their deafness. Awareness can only increase. Just to remind ourselves, the legal profession - like the law itself - does not operate in a vacuum. It will be required, however slowly, to respond. A fascinating symbiotic relationship between disability and information technology could develop. The impact each has on the other in defining their roles in society may be the catalyst that the profession needs. If the profession sees that deaf people can use technology to push back or remove their boundaries, surely, as a human agency, it will enquire further what it can do for them.
Deafness and IT hold great potential if acting in tandem. Searching for the key to unlocking the shackles of silence may incidentally lead to the discovery of other keys. This would be something like a reversal of the 'trickle down' process of military inspired technology. A cultural dynamism might occur that could take the questions of disabled access and IT awareness hand-in-hand in a forward march. Removing irrational fear of technology may remove some of the irrational fear of deafness that James Joyce exhibited when he wrote:
'I am superstitious of only one thing - deaf mutes'.
Digital development has the potential to engender a more participatory democracy by allowing a voice to those whose natural medium may not be the voice itself. Just as word processing has assisted those with dyslexia, teleworking could for those who are deaf. This will be no less in the legal field with the shift in the legal paradigm predicted by Richard Susskind (1996). Dramatic change in the profession will be brought about. As Widdison (1997) states:
'The principal agent for this change will be IT. The technology itself will bring about direct changes in what lawyers do, how they do it, where they do it and when they do it. IT will also play an important part in hastening other processes that are already underway, such as the rationalisation of the administration of justice, the merger of the legal professions, and the reinvention and harmonisation of the three stages of legal education - academic, vocational and continuing.'
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A clear problem will arise when the inevitable 'cost/benefit' analysis is done. At the Conference on Information Systems for Lawyers Conference held in London in early 1998, it was pointed out that - when it comes to investing in IT generally:
'...what is immeasurably more challenging...is assessing the likely benefits. The natural inclination of many hard-nosed managers is to demand a 'business case' which demonstrates, in quantitative terms, that the benefits palpably outweigh the costs...However, I do question the supposition of top management that all relevant future factors can be identified, put under the microscope and then quantified in monetary terms.'
The fact that the only limit for using technology is our imagination may mean that disability, in all its varying forms, acts as a real stimulus to pushing back the boundaries of technology. All the lateral thinking that is invested in technological improvements for deaf people will surely have wider implications. Any new paradigm will absorb at least part of the old, as experience has shown. Then we shall begin to see ourselves as 'information managers in the business of information policy' (Susskind, 1997). Moreover, it has been suggested that:
'it is a lack of provision for effective training in IT, rather than widespread cultural resistance by lawyers, which was found to be the more important causal factor for under-utilization of IT.' (Wall and Johnstone, 1997).
A similar point could be made of the attitudes towards those with hearing difficulties and other disabilities in that the profession suffers from lack of knowledge rather than any ingrained, cultivated prejudices.
For all the talk of digital democracy and liberation, it is instructive to remind ourselves of the bigger picture. As Charlesworth and Cullen (1996) state:
'[W]hile this large-scale transfer to digital technologies has the potential to increase massively the ability of the individual to access information and services which were previously too expensive to distribute widely, or which were geographically remote from those wishing to use them, there remains the pressing concern that this 'information revolution' may simply bypass some sectors of society.'
Social exclusion markedly affects those with disabilities. Indeed, Charlesworth and Cullen specifically mention the disabled as one of the groups for which universal access should be provided. The prospect of this may raise the awful spectre of educated, affluent deaf individuals asserting their social role much more fully whilst those who are not so fortunate are increasingly regarded with contempt for failing to assimilate into a hearing world. This would indeed be a retrograde step.
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Independence is that elusive state that is sought after by those who are deaf. Dependence is the last resort. Ultimately, constructive interdependence of varying degrees may be what allows those who are deaf to fully assert themselves in the legal profession. The advance of information technology must not be allowed to bring about self-congratulatory complacency. Then - and only then - the orgy of non-communication may start to fade as the ubiquity of IT becomes more strongly felt.
Independence may be something constantly to be striven for rather than a permanent state of affairs. Independence is by no means elusive per se, but the re-negotiation of any boundaries must bring to light new issues that have to be dealt with. Technology is by no means always apolitical - witness the controversy raging in the deaf community over cochlear implants. Some members of that community feel that those who are fitted with implants may be deprived of their cultural identity. The increasingly-felt transatlantic trend of 'identity politics' may yet have interesting implications as information technology removes old barriers but at the price, perhaps, of creating new ones. The fact that is becoming increasingly clear is that the parameters of social and political culture are, and will continue to be, expanded in order to accommodate those who have thus far been marginalised by their disability.
The phenomenon of fusion (Lilla, 1998) - where the modern political settlement of the 1990s is based on the twin pillars of 1960s liberalism and civil liberties and 1980s economics and individual choice - may turn out to have hidden dimensions when it comes to the further emancipation of those shackled by silence. The concept of 'malleability' has much to offer as the time comes closer when:
...'we can mould IT, within reason, to be whatever we want it to be. Moreover, we can blend existing forms and functions, and thereby create innovative applications. Ultimately, the only real limit on the range of uses for IT is our imagination.' (Widdison, 1997 at p 145)
Moreover, as Katsh states (1995 at p174): 'the digital lawyer will view the new media as a means to fashion new and more complex relationships and interactions among persons and groups separated by a distance,' thus entailing a more inclusive approach.
The future is wide-open and much depends on:
'anticipating the shape of the next game before it is played...It is psychological - Gates is not really a master of technology, but of pre-cognition, guessing the shape of the next game' (Vulliamy, 1998).
Economist Brian Arthur (1998) has argued that: 'the people who win are the people who suss out how the game works better than anyone else. But there is no perfect or rational answer. The game that is going to be played is itself the function of the interpretations people have as to what the game is.' A game indeed - but a crucially important one.
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Abel, R (1989) 'Between Market and State: the Legal Profession in Turmoil' 52 Modern Law Review 285.
Arthur, B (1998) Santa Fe Institute webpage at <http://www.santafe.edu/arthur/>
Bing, J (1997) 'Lex Futurum: The Future of Law by Richard Susskind' 5 International Journal of Law and Information Technology 100.
Brenells, P (1997) The Achievable Law Office - How Law May Be Practised in 1998 and will be practised in 2002, Proceedings of the Twelfth BILETA Conference in Durham at <http://www.bileta.ac.uk/97papers/97-3.html>
Cairncross, F (1997) The Death of Distance: How the Communications Revolution will Change our Lives (Boston: Harvard Business School Press)
Charlesworth, A and Cullen, H (1996) 'Under My Wheels: Issues of Access and Social Exclusion on the Information Superhighway' 10 International Review of Law, Computers and Technology 27
Dean, B (1997) The Law Office of the Future and the Virtual Law School, Proceedings of the Twelfth BILETA Conference in Durham at <http://www.bileta.ac.uk/97papers/97-1.html>
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Paterson, A (1996) 'Professionalism and the Legal Services Market' 3 International Journal of the Legal Profession 136.
Plotnikoff, J and Woolfson, R (1993) 'Replacing The Judge's Pen? Evaluation of a Real Time Transcription System' 1 International Journal of Law and Information Technology 105.
Simmons, S (1996) Flexible Working, A Strategic Guide To Successful Implementation and Operation (London: Kogan Page).
Susskind, R (1996) The Future of Law (Oxford: Oxford University Press)
Susskind, R (1997) Keynote Address: IT and Legal Education in the Future, Twelfth BILETA Conference in Durham.
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Vulliamy, E (1998) 'The Prophet of Profit', The Observer, 8 March 1998.
Wall, D and Johnstone, J (1997) 'Lawyers, Information Technology and Legal Practice: The Use of Information Technology by Provincial Lawyers' 11 International Review of Law, Computers & Technology 117.
Widdison, R and Pritchard, F (1995) 'An Experiment with Electronic Law Tutorials' 4 Law Technology Journal 6.
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Zander, M (1996) Cases & Materials on the English Legal System (London: Butterworths).
(1) Established in 1991, Typetalk is a relay system of operators who read the typed message from the minicom down the telephone to the hearing person. The operators are bound by a very strict confidentiality code in order to ensure complete privacy.
(2) An example is the Senso hearing aid developed by Widex.
(3) The concept of teaching 'in parallel' was deployed in that article from a tutor-centred view, here it used from the specific view of the deaf student.
(4) Livenote is software which provides an almost instant, accurate transcript of court proceedings and was developed by the UK's leading firm of court reporters, Smith Bernal and used at the Maxwell trial and the British Coal Respiratory Disease litigation - the largest personal injury case in UK legal history. See www.smithbernal.com