Over the last couple of months, the legal profession in the United States has experienced seismic shifts in the wake of COVID-19 with the introduction of basic technology that has greatly enhanced access to the legal system and the way lawyers practice law. As lawyers are integrating new technologies into their practices to better provide remote legal services to their clients, they should also look at introducing another type of technology that has been widely used across other industries for decades: open source software (OSS).
In this article, we will explore what OSS is, how it’s been used in other industries, how it can improve lawyers’ daily practices and improve access to justice, and what efforts are already underway to introduce OSS more broadly into the legal profession. We will also provide insights from leaders in the legal open source movement, including John Tredennick, Lourdes Fuentes Slater, and Mary Mack.
What is Open Source Software (OSS)?
Most everyone has heard of OSS by now, but the bigger issue is that few people can define it, let alone grasp its ubiquity. According to Lourdes Fuentes Slater, CEO of Karta Legal, LLC: “We all work on OSS every day.” Windows, for example, is built on an OSS structure. John Tredennick, the Chair and Executive Director of Merlin Legal Open Source Foundation, agrees, saying: “Indeed, the harder question is to find cases where open source is NOT used.” Linux, he explains, was the very first open source project, initially started as a Windows alternative. Now, more than 80 percent of the world’s web servers run on open source software. Other notable examples of OSS are WordPress, Mozilla Firefox, and Open Office.
OSS and Access to Justice
Mary Mack, Chief Legal Technologist at EDRM, shares one of the greatest limitations of OSS: “It is important to note,” she says, “that while open source software is free, and the source code available, there is still a learning curve and a time investment to implement and maintain [it].”
Further, the presence of OSS development in legal tech is still small, compared to the level of funds raised in recent years. According to data compiled by Bloomberg Law, 2020 Q2 saw roughly $178 million invested in legal tech, trumping last year’s Q2 total of $122 million. In fact, legal tech companies have raised $339 million thus far in 2020. Still, most legal tech software development has not been OSS, with a few notable exceptions:
- Docassemble is an open source system founded by Jonathan Pyle of Philadelphia Legal Assistance, that allows users to create legal apps using built-in integrations for e-signatures, SMS-based reminders, and machine learning.
- CaseBox is a file management system that allows users to control the servers on which they store their data, enabling the use of filtered searches, smart folders, and graphics.
- Accord Project is a collaborative nonprofit initiative committed to creating open source tools to draft smart contracts. Specifically, it provides a common framework for contracts, allows sharing and reuse of agreement templates, and provides domain-specific functionality, created for building and running commercial agreements.
However, despite these insufficiencies in funding and education for OSS resources, these programs have nonetheless been used for decades to improve access to justice. According to Tredennick: “Lawyers have been using software to improve their practices since I was practicing in the 80s and 90s.” They started on programs like WordPerfect and later Microsoft Office, then moved on to productivity applications like calendars, docketing, document assembly, and email. “All of these improved a lawyer’s access to justice.”
In the past decade, software has moved largely to the cloud. “Many of the programs we use run on open source software programs,” Tredennick notes. “The software we license may be proprietary, but it runs on open source components, and companies like Google, Microsoft and even Amazon are releasing thousands of open source programs and components every year.” This collaborative model benefits the broader community, and many of those same programs and components are being used downstream to improve access to justice.
Programs like Docassemble, for instance, are open-source and freely available to lawyers and lay people alike. Docassemble, in particular, makes it easier and cheaper for lawyers and legal aid organizations to develop custom, guided interviews and applications that assemble together critical legal documents for clients like wills, contracts, and court filings.
What Efforts Are Underway and What to Expect
Tredennick explains that there are already ongoing efforts underway to make OSS more widely available. “The neat thing is that you don’t have to seek anyone’s approval to offer your software as open source,” he explains. “Rather, you simply make it available on one of the open source repositories like GitHub.” He notes that as long as there is a way to make legal professionals aware of its existence, the software will be used.
This is precisely the mission of his foundation, Merlin Legal: “Our goal is to provide a home for legal open source, a place where developers can share ideas while legal professionals find useful open source for their needs.” While the foundation is new, and while open source is new to most legal professionals, Tredennick reiterates the need for organizations like his to foster the space for legal open source collaboration. Slater, Mack, Pyle, and several other excellent legal professionals, including UniCourt’s CEO, Josh Blandi, serve on Merlin Legal’s Advisory Board.
Other organizations, like EDRM, are using OSS in connection with proprietary software. According to Mack, EDRM publishes almost all of its materials under a Creative Commons license. In fact, the Creative Commons license model is shaping software and tech development within universities and academia, such as Harvard’s course focused on training the next generation of tech-savvy lawyers and Cornell’s international online legal information platform.
According to Slater, “using OSS BSS in legal is, by definition, innovating.” She goes on to explain that for successful innovation to happen, “there has to be a perfect storm of tech feasibility, market factors pointing to it, and human desire towards the innovation.” She explains that there are multiple signs of this perfect storm already forming by way of:
- Resource banks: Law schools can play a part in encouraging students developing legal technology to make their software open source. This is how CourtListener, a project to provide free access to legal opinions, started.
- Regulatory Reform: Leading the way on regulatory reform, the Utah Supreme Court recently approved a two-year pilot program charged with licensing and overseeing new forms of legal providers and services. This change will spur innovation and provide a space for legal professionals to compete in the legal industry vertical.
- Collaboration Groups: Finally, collaboration groups like Merlin Legal are helming innovative projects in the legal sector, providing a central platform for legal professionals to collaborate on OSS projects and distribute OSS under free license.
As far as what’s coming down the pike, Slater predicts we will see fast growth in OSS BSS, and specifically, “in OSS BSS building IoT platforms, billing and data management tools, and 5G operations support and mobile computing.”
According to Slater, in order for OSS to flourish in legal, lawyers need not just use it, but create it as well. Lawyers are committed to pro bono and understand its importance for making equal justice under the law mean something, so let’s start thinking of OSS development as pro bono for the good of the legal profession. Legal OSS development by lawyers leads not only to increased access to justice through better solutions and tools being made available for legal aid organizations and nonprofits to use, but also to improved legal tech, data management tools, and billing solutions for lawyers to make their practices and legal services delivery more efficient and profitable.