As a new generation of trainees arrive having grown up with instant messaging, it’s time to look at what your firm does with this technology.

The problem with living through a revolution is that you cease to notice the rate of change around you and, while major events are unfolding outside your front door, you can remain wholly oblivious to them. To me, it seems that the internet has heralded a revolution – a global revolution, even – but, because it has happened all around us, we sometimes fail to notice the profound effects it has both at work and at home.

By way of example, I was raised in the foothills of the Himalayas, in a remote village. When I was first sent to England for schooling, a letter from my headmaster to my parents would take nearly three weeks to reach them and their response, equally, would take a further three weeks to return to him.
Contrast this with a trip my father took through remote areas of Tibet a couple of years ago. He kept in contact with family throughout by logging onto PCs in internet cafes and sending email updates. When timed correctly, we were able to get responses on specific issues in hours. The internet has flattened the world.

These changes are happening both in the workplace and at home. E-mail has revolutionised communication, with 171 billion messages sent worldwide each day. But there are further changes afoot that we are all going to need to assimilate in order to interact in this emergent world. Sharing a house with two teenagers, I have started to notice that, although they still spend the majority of their time staring at a screen, the TV set remains abandoned in the corner and they now sit for hours in front of computer screens, fingers flying over keyboards. No, they aren’t doing their homework, nor are they sending e-mail messages: they are almost permanently connected to MSN, one of a number of instant messaging systems rapidly overtaking email in usage. A 2006 survey by AOL showed that, in the UK, nearly one in four people send as many or more instant messages (IMs) than they do e-mails. In the 18-to-24-year-old group, this figure rises to 44%. This age group is especially interesting when one considers the workplace: they start using IM at school and college but then enter the  workplace where they expect to use the tools they are most familiar with. This presents problems for employers – we still have to adapt corporate culture to the age of e-mail and here we are, faced with yet another disruptive paradigm shift.

New forms

To understand IM’s role, one first has to consider the way in which it bridges the gap between other modes of communication. Conversation, whether in person or over the telephone, is a direct, two-way means of communication in which we can, for example, detect tones of voice. Conversely,
when we send an e-mail, a fax or a letter, we do so with certain assumptions that the receiver will get the message and reply at a later time. This presents particular problems, particularly in that there is nothing to tell you whether the recipient has understood your message or agrees with the contents until such time as a reply reaches you. Conversation requires presence for such interactivity. Chat, in IM, takes the form of short messages typed into a ‘chat window’. Each message is prefixed by the name of the person ‘talking’ and the author of the message renders it visible to others by pressing the return key. The recipients of these messages are able to type responses in the chat window on their own screen, again sending these by pressing the return key. People can enter these chat windows, invite others electronically to chat with them and even advertise to friends and colleagues whether or not they are available to chat. The key is that, unlike e-mail, an IM conversation requires the participants to be present, but, as we will see, it carries certain potential problems that other modes of messaging present.

As good as it sounds?

IM has always seemed to me an ideal consumer technology, perfect for ephemeral conversations and social arrangements. My teenagers, like many IM users, adopt an abbreviated language – textspeak – for IM. Thus ‘see you later’ becomes ‘CUL8R’ and ‘be right back’ is rendered as ‘BRB’. They are therefore able to communicate very quickly in chat windows, a necessary skill when multiple parties may be involved in a chat.

But herein lies my first problem with IM: I remain a firm supporter of both grammar and appropriate punctuation. I may not have achieved Lynn Truss-like levels of pedantry in this (and please do not bother to e-mail me corrections to this article – life really is too short), but nearly 15 years of working with lawyers has meant that sentence construction for me is far more important than it might be for most people. Part of this is bitter experience: I once worked with a lawyer who would regularly reduce female assistants to tears when they had the temerity to submit a long, laboriously typed draft t h a t included ( h e a v e n forbid) a semicolon. He would berate them loudly and publicly for such a faux pas, explaining that the semicolon was a redundant punctuation mark that had no place in the English language.

Equally, many of us with years of law firm experience will know that a global e-mail containing but a single misplaced apostrophe may elicit sarcastic responses from up to half the recipients, each gleefully pointing out the stupidity of such an error and suggesting the sender spend some time in the corner, wearing the pointed hat. As such, I find myself using IM and frantically typing: ‘Dear X. Many thanks for your IM dated Feb 22, the contents of which are duly noted. I was especially interested in…’ In the time it has taken me to type this, another 17 messages have appeared in the chat window, the moment is lost and, with it, my contribution.

My second problem with IM lies in the conversational slant of the medium: IM comes across like a chat with friends in a pub and, as such, one is tempted to treat remarks made in an IM session as throw-aways. In a pub chat, such behaviour is possible: there is no formal record of remarks made and alcohol is both a social relaxant and (in sufficient quantity) an eraser of memory that gives one the ability to deny having uttered anything remotely contentious the following day. IM, by contrast, leaves a trail of electronic footprints, and records will probably exist of conversation threads. As such, a quick-fire accession to a client request, done on the spur of the moment and without forethought may well result in a large negligence claim, the client having preserved a record of the IM session and the inaccurate advice.

IM in the office

Sadly, simply blocking IM on corporate networks is no longer a feasible strategy: many of the new IM clients work purely in a web browser and can be almost impossible to block. Equally, the volume of IM users (in 2005, ICQ claimed to have 175 million users and a recent study shows a rise of 19% in IM traffic between 2005 and 2006) means that it will, inevitably, find its way into law firms, probably starting with the first prospective client who insists on its use as a condition of appointment. As such, the key lies in the creation of a sensible framework for the use of IM within the law firm.

A starting point is the creation of an IM policy: while over 79% of employers now have a written e-mail policy in place, less than 20% have an equivalent policy for IM. The policy should spell out clearly the circumstances in which IM use is appropriate and note that monitoring of IM and recording of conversations is in place. At the back end, there needs to be a mechanism for the storage and retrieval of IM records with regard to potential litigation. Lastly, the firm probably needs to consider changes to its terms-of-business letters to incorporate disclaimers on the use of IM for legal advice.

The problem for technologists in the corporate environment lies in the plethora of disparate IM systems in use. Wikipedia currently lists a total of 65 different IM clients in its introduction to the subject and many of these are closed, proprietary systems. Interoperability is starting to get much easier but, if law firms are to be driven in IM use by their clients, it is possible that multiple systems, each with different challenges, may be foisted upon the IT department. Security front ends to IM – such as Facetime – can help maintain a manageable framework for the organisation.

My suggestion for law firms would be to start trying IM out now if they haven’t already. Internal use only gives a chance to assess the usage of the technology and to gain familiarity with it. Equally, the use of a security device like Facetime will show levels of unauthorised IM usage on the corporate network. A US survey in 2005 showed that 31% of employees were using IM in the office and that much of that usage is unregulated and unsanctioned.

Also, I would suggest the creation of a ‘best practice’ guide to IM which will help staff get to grips with this (often) unfamiliar technology. Such a guide will help novices in their usage of the technology. As an example, one of the most helpful suggestions for me came from a senior VP in an American company who suggested a ten-line limit on any IM conversation: if an issue could not be debated and resolved in ten lines, IM was not the best way to handle it and discussion would be reconvened in person, over the phone or by e-mail. In this way, issues that could be speedily resolved would be dealt with by IM and those requiring more thought or consideration could be dealt with in a more appropriate fashion.

The way forward

As for me, I’m still not wholly sold on IM, but I do recognise that it will start to impinge on law firms in the very near future. I welcome the effect IM may have on e-mail – anything that decreases e-mail volumes would be a boon – but fret that IT will be charged with finding an appropriate mechanism for the storage of these IM records. Additionally, the presence features of IM – the ability to see at a glance which members of your team are around and logged in, whether they are in the office or working remotely – will be a real boon to law firms in the age of teleworking.

I’m still mulling over the best solution for adoption of IM in my own organisation, but will probably discuss that down the pub with several of my contemporaries where no written record of our discussions will be held. CUL8R – I may, or may not, BRB.

Jon Gould is the IT Director at Charles Russell.