Technical Competency For Lawyers
A 2013 Delaware case most eloquently illustrates this point. In this case, counsel repeatedly screwed up efforts to produce electronic discovery. At a hearing on a motion for sanctions, the attorney conceded: “I have to confess to this Court, I am not computer literate. I have not found presence in the cybernetic revolution. I need a secretary to help me turn on the computer. This was out of my bailiwick.” James v. Nat’l Fin. LLC, 2014 Del. Ch. LEXIS 254, at *35-36 (Del. Ch. Ct. Dec. 5, 2014).
The court was not amused. In recommending sanctions, the court held:
Professed technological incompetence is not an excuse for discovery misconduct. . . . “[D]eliberate ignorance of technology is inexcusable . . . . [I]f a lawyer cannot master the technology suitable for that lawyer’s practice, the lawyer should either hire tech-savvy lawyers tasked with responsibility to keep current, or hire an outside technology consultant who understands the practice of law and associated ethical constraints.”
Having experienced firsthand the absolute mess that eDiscovery gone wrong can create at trial time, this blog is provided to lend some foresight to what might otherwise become a total disaster. Sanctions for eDiscovery gone wrong can include fines, but even more frightening, sanctions can cause a total dismissal of the action. Adverse inference instructions are no fun either. Been there…seen that…don’t want to be in that guy’s shoes!
It’s not that the court wants you to be a technical guru, although if you are, that’s better than telling the court you’re just too old or too unfamiliar with these “newfangled technologies.”
As is the case so often, it can be dangerous to know just a little about a lot of stuff. Legal technology is no exception to that. Whether you are a 2021 law school graduate or you’ve been practicing for decades, lawyers need to know what they do not know. Lawyers are not required to become software engineers or IT experts. But to remain competent, counsel must at the very least recognize, and take steps to safeguard their clients’ interests by knowing and working within their own limitations.
Technical competence isn’t just about using email and being sure you don’t “Reply All” by accident. Staying informed about available technologies and their associated risks and benefits including evaluating and selecting the best tech tools for the job is part and parcel of competency. Sometimes you might find yourself counseling clients about technology options and costs. Sometimes you might have to cross-examine a witness on the use of artificial intelligence or other more advanced technologies. No one can know all there is to know about technology, but knowing when and how to delegate (with appropriate supervision) or automate tasks to get the most from technology is certainly within the grasp of every litigator I’ve ever worked with.
Trial presentation technology is a perfect case in point. You don’t need to know how to make trial presentation software do what it does…but you need to know its limitations and be generally aware of how to successfully partner with your technology service provider for the best possible representation for your clients during trial. Knowing who to call is often the very best solution for providing successful technology use. It’s vital to know what you don’t know, and reach out to those individuals who can provide the expertise you need to keep you and your client in the best possible situation.
Technological competency for lawyers isn’t just about discovery…or trial. There are so many new technology threats in today’s “cyber-aware world” that also require your education and awareness. Watch for our upcoming blog on data security…
Data security intersects with legal practice technology at many points. Data must be secured in transit (file sharing, lawyer-client communications, etc.). It must also be secured at rest (law firm server, cloud storage, copies held by service providers and experts, etc.). Remote working has recently highlighted the importance of updating privacy and security settings in videoconferencing and other collaboration tools.
Following security best practices is essential technology competence for all lawyers.
Recently, (on November 10, 2021) Bloomberg Law posted an article on three ways state bars, at testing time, could test tech knowledge. You may have a different opinion than this article holds on state bars testing technical competence but it is clear that little or no knowledge - and little or no self-awareness of your technological limitations - can be a risky thing. Read more here.
Thought for the day: Self-confidence is the most important thing, and this comes from identifying your goals, knowing your limits and roping in all the help you can get. Shirley Conran