Attorneys Need to Go Back To School Before Going Native

I was a bit surprised that native files were not as much a topic of discussion during the EDRR Conference in Los Angeles last week as was the ongoing topic of e-discovery education and expertise.  Panelists were talking again and again about the the need for acquiring repeatable defensible processes to justify their positions in court.  Judge Carl West  went so far as to note that he’s often seeing technology experts for both sides at hearings and he is urging parties to make their experts ‘dance geek to geek’ before they appear in front of him.

This topic is a continuation of the comments made by Judge John Facciola  at the LegalTech conference in New York several weeks ago.  Both Craig Ball and I comment on the presentation in this months issue of Law Technology, which also features an article on technological incompetence  called “No Excuses“, by another independent consultant, Joe Howie.

Joe quotes Ralph Losey as  saying that the situation is so bad that  “Some experts believe that attorney incompetence in e-discovery is so widespread that it presents a massive ethical crisis across the entire legal profession.”  Well, no wonder if you read the results of the latest ILTA Law Department Survey, which reports a degree of technology usage that Ron Friedmann, in reporting on the survey,  describes as both “shocking” and “frightening”.

The responses from 22 ILTA member legal departments (82% of the respondents came from the corporate sector, with the other 18% comprising government and not-for-profit entities) showed that 41% do not use a ”litigation support” tool inhouse , 45% do not use an e-discovery product or service and 68% have not “deployed tools with your organization (outside of legal) to prepare for discovery requests”.

How on earth are these people going to effectively manage e-discovery requests made of their organization when they have no in-house tools to assist them?  The traditional answer has been to pass that repsonsibility to outside counsel but in todays economy that solution is becoming less and less attractive.  And if even if they do ask outside counsel to manage that process ( a request that flies in the face of the ever-growing demand for Earl Case Assesment tools) how can they coordinate or even monitor that work without any in-house tools?  

Frightening indeed.  Because as Joe puts it, “… if vendors and outside counsel have a vested financial interest in selling the maximum amount of processing and review time, then in-house counsel may have to take the lead…”  in implementing new technologies.  Hard to believe they can do that given the results of this survey.

Judge Facciola suggested that the reason for this low level of technological competency is pure stubborness on the part of attorneys to learn something new and that lawyers should be continually tested for technical competence.   Which leads Joe to ask, “Should individual courts require a demonstration of technical competency under their own local rules, perhaps by written exam?”   As I’ve noted in an earlier post, there are precedents for such a test in some of the federal courts with limited jurisdiction and if attorneys don’t listen to these pointed comments of frustration from judges, they will soon be seeing them in ALL federal courts.

So it was heartening at the conference to hear people like Browning Marean calling once again for more technolgy training for lawyers. And know that people like Ralph are constantly extolling the need for more technology training at law schools while Craig Ball and George Rudoy push for more programs like the ED Training Acadamy at Georgetown Law School.

Sharpen up those pencils kids …. it’s time to go back to school. Or fire those luddites and hire people who will.


1 comment so far

  1. Craig Ball on

    Hi Tom:

    Thanks for the shout out and for keeping the need for technical competence on the front burner. We not only need to persuade lawyers to take the plunge, we need to insure there’s a pool for them to jump into.

    By that I mean, there just isn’t a clear path to accessible resources for the lawyer who wants to get a handle on the technology. Do they go to a community night course on computers? Pursue online education? Wait for the next Georgetown Academy?

    I don’t think I’ve even seen a really good reading list on the topic (and much as I’d like for it to be, consuming the offerings on my web site isn’t enough). Maybe we (all those you mentioned in your latest post) should come up with a succinct reader’s guide to learning IT for lawyers and lit support?

    Anyway, thanks for your thought leadership, and thanks even more for sharing His Honor’s wonderful “dancing geek-to-geek.” Irving Berlin and Fred Astaire may be spinning in their graves, but as for me, “Heaven, I’m in heaven!”

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