All empires eventually decline and fall despite their valiant attempts to maintain the status quo. In the business world, industry-leading companies often use "fear, uncertainty, and doubt" (FUD) to maintain their hegemony. Originally coined to describe IBM's marketing tactics in the 1960s and 70s, usage of the FUD acronym has expanded over the years to describe any situation in which entrenched companies use their influence and resources to squelch the adoption of new technologies.

Over the past year, FUD has surfaced in the legal community with regard to "application service providers" (ASPs). ASPs are poised to bring the age of desktop software to a close because they enable people, including lawyers, to run software programs from remote servers via the Internet rather than from their local hard drive. Instead of spending thousands of dollars to license this software, law firms simply pay a monthly service fee to their ASP. In addition, ASPs handle backups, maintenance, upgrades, and security. Although new to the legal world, ASPs have existed for a few years in other markets. This fact alone does not necessarily validate the use of ASPs by law firms, but it does warrant further investigation.

Many ASP critics believe that ASPs suffer from three critical weaknesses: (1) access; (2) security; and (3) functionality. This article addresses each of these perceived flaws.

Access: In the traditional desktop scenario, users access software from their hard drive. If the hard drive is properly connected and the software properly installed, access is quick and seamless.

In the ASP scenario, users access software on remote servers via the Internet using a Web browser or a proprietary client. As a result, ASP access involves two technical issues (bandwidth and server reliability), and one managerial issue (ownership of data).

Bandwidth: Because ethernet networks run at about 10 Mbps and a typical DSL connection provides access at 512 Kbps, ASP skeptics argue that accessing an ASP takes too much time. While transmission speed is relevant, law firms must realistically consider how much data needs to move between a user's computer and the ASP server. If the data sent is relatively small, which is true of most text files (the bread and butter of legal practice), current broadband access speeds (Cable, DSL, T-1) should suffice. Furthermore, techniques such as shadowing (data stored both locally and on the server) make access less of an issue.

However, broadband is exploding. Nowadays, most law firms have broadband connections of 500 Kbps or more. In less than five years, law firms will likely enjoy access speeds of 10 Mbps, the typical speed of today's internal ethernet network. With this exponential growth in bandwidth, access is not the albatross that those engaged in spreading FUD would have law firms believe.

Server Reliability: When it comes to server reliability, many ASP skeptics set up a straw man by stressing the need for ASPs to offer 100% server uptime, and then knock down that straw man by observing that 100 percent server uptime is an impossible goal. But this pronouncement only tells half the story. Yes, computers do fail on occasion. However, ASPs employ more technicians than law firms, build more redundancy into their network than law firms, and can, therefore, recover from and rectify such failures more quickly than law firms.

This advantage is especially pronounced when compared to the existing infrastructure at most solo practices and small firms. ASPs will enable this segment of the legal profession to have skilled technicians run their systems 24/7 at a reasonable cost. ASPs have the money and expertise to build in redundancy and reliability that solo practices and small firms simply cannot afford on their own.

Those with any remaining doubts about server reliability should ask themselves the following questions:

• Does your firm have a back-up server ready to run at a moment's notice?
• Does your firm have its data mirrored?
• How many good daily backups does your firm have, and how many of those backups are stored off site?
• Can you afford to spend part of your day working on your server instead of on your cases?

Ownership of Data: Rightly so, ASP skeptics often ask: Who owns the data? What happens when a law firm wants to take its data and go elsewhere?

For ASPs to sell even one subscription, there exists only one answer to these questions -- the law firm owns the data, and ASPs must make it available to law firms upon request in a usable format. Period. End of story. Any subscription agreement that does not unequivocally state that the data belongs to the customer will doom an ASP to failure. This situation is akin to something that every law firm faces at some point -- when a client tells its lawyer that it wants to take its file to another law firm, the rules of professional responsibility make the lawyer's obligation clear -- the client owns the file. ASPs must operate by the same rule, and ASPs are well aware of this business requirement.

Security: Many ASP critics profess grave concern about placing privileged and confidential data on an ASP's servers. What they forget is that the servers in their own office are even more vulnerable to prying eyes. For example, many law firms use temporary personnel. During their short tenure, these people often have access to file servers and document management systems. Similarly, many law firms hire technology consultants to help them with a technology implementation. These consultants not only have access to privileged and confidential data, but they possess the knowledge to search, access, and steal that data if so inclined. These examples merely scratch the surface of the many security loopholes that currently exist in law firms of all sizes. We've all seen a few passwords written on Post-It notes and stuck to monitors!

FUD has no place in the ASP discussion when it comes to security. Data stored at even the most secure of law offices would likely become even more secure at an ASP. ASPs encrypt data and store it on a higher quality server with more software protection than most law firms can afford or set up and maintain. Add remote access to the equation and this especially becomes true. Though convenient, remote access, especially via the Internet, makes security all the more difficult.

Remote access without the security headaches is, of course, one of the most appealing advantages of ASPs. The monitoring, tuning, and tweaking required of state-of-the-art security systems is a core competency of ASPs. Perhaps the advent of biometrics will enable us to beat the password-on-a-post-it problem, but until then, security off-site versus on-site remains a toss up at worst (but more likely a slam dunk in favor of ASPs).

Functionality: If by the term "functionality," one means a system that serves every need of every law firm, then ASPs will indeed disappoint. However, so too will Amicus Attorney, Time Matters, Office 2000, WordPerfect, or any other software program. The reality of a software program often falls far short of its promise not only in terms of functionality, but just as importantly, ease of use. As a result, it is unfair to hold ASPs to a standard that current desktop software solutions cannot meet.

That said, ASPs hold great promise regarding functionality. Because ASPs rely heavily on open technologies and off-the-shelf software, and because they preside over their software even after deployment, they should be able to implement new features and tweak existing ones quickly. Instead of waiting 1-2 years for major upgrades that often become major hassles, law firms will instead enjoy weekly, seamless upgrades. ASPs may eventually become so adept at tweaking their software that they can provide customized solutions to everyone.

Licensing software, installing it, configuring it, training staff, troubleshooting, and enduring the inevitable upgrades is a very expensive proposition. By contrast, the monthly subscription fee paid to ASPs encompasses all of these chores, including training.

Technology enables lawyers to work faster, better, and more profitably. Though new and untested, ASPs have the potential to change legal practice for the better -- they could very well transform what has become an industry back into a profession. The mark of advanced technology is perfection to such a degree that the technology effectively disappears. Many of us take medications without thinking of the wonders they do inside our bodies. Someday soon thanks to ASPs, we may write a brief or a contract without thinking much about the technology enabling us to do so. ASPs offer this potential, and, therefore, deserve better than FUD. While the debate and discussion must continue, so too should our willingness to try something new. Only through actual experience will we gain answers to our questions.

About our author...

Mark Fellman, a solo practitioner in St. Paul, Minnesota, serves on the advisory boards for Elite.com and WestWorks, the ASP currently under development by West Group. You can contact Mark via e-mail (mark@mjfellman.com) or telephone (651) 225-5600).