I frequently blast lawyers for their lack of competence when it comes to electronic evidence. I’m proud to be a lawyer and admire all who toil in the fields of justice; but I cannot hide my shame at how my brilliant colleagues have shirked and dodged their duty to master modern evidence.
So, you might assume I’d be tickled by the efforts of the American Bar Association and the State Bar of California to weave technical competency into the rules of professional conduct. And I am, a little. Requiring competence is just part of the solution to the competence crisis. The balance comes from supplying the education and training needed to become competent. You can’t just order someone who’s lost to “get there;” you must show them the way. In this, the bar associations and, to a lesser extent, the law schools have not just failed; they’ve not tried to succeed.
The legal profession is dominated by lawyers and judges. I state the obvious to expose the insidious: the profession polices itself. We set the standards for our own, and our standard setters tend to be our old guard. What standard setter defines himself out of competence? Hence, it’s extraordinary that the ABA commentary to Model Rule 1.1 and the proposed California ethics opinion have emerged at all.
These laudable efforts just say “get there.” They do not show us the way.
I’m all for raising the bar for the Bar and setting a standard of professional competence that demands fluency in relevant technologies, most especially e-discovery for litigators. Setting an ambitious standard that kicks in at a date certain is how the EPA uses its Corporate Average Fuel Economy (CAFE) standards to force automakers to innovate. It works, but it takes immense political will. It wouldn’t work if automakers policed themselves.
Perhaps that’s why there’s a dearth of e-discovery competence among litigators. The profession lacks both the will to set standards we don’t already meet and the educational resources to meet higher standards.
Where are the CLE programs teaching information technology for lawyers? Where are the law school classes teaching that crucial “E” in E-Discovery? Where are the primers, nutshells, web resources, journals, workbooks, exercises and study guides? Don’t point to one or two examples. There are about 1.25 million lawyers in the United States, and about 40,000 law school graduates a year. We need something bigger, much bigger. A forensic moon shot. A CLE Manhattan Project. But, I’d settle for a meaningful set of competency standards and an educational effort that means business.
Every lawyer graduates knowing how to find and read case law. Any lawyer can teach herself e-discovery law. Happily, there’s not very much unique e-discovery jurisprudence to master. But where do lawyers learn the fundamentals of information technology? How many grasp the places where digital evidence resides and know how to marshal and manage modern electronic evidence?
Legal training has long been an apprenticeship. Students are taught by academics lacking practical experience, and trained on-the-job to emulate seasoned practitioners. But when it comes to e-discovery, law firm leaders can’t teach what they never learned. Instead, they trivialize it, on the theory that, if they don’t know it, it can’t be key to competency. “We hire people to do that e-stuff,” they sniff.
Proclaiming, “I don’t need to know how and where computers store information to be competent in e-discovery” isn’t much different than claiming, “I don’t need to understand probate law to be competent to draft wills.” Actually, sorry, but you do.
It’s the “e” in e-discovery that makes it different. It’s the “e” that you need to know. Yet, even noted experts in e-discovery don’t accept that. They teach e-discovery stripped of the “e” and claim competency because they can turn to someone who does their e-thinking for them. But, that’s not their competency; that’s competency by proxy. Most of us can’t get by with that.
Becoming competent in e-discovery isn’t hard. Neither is it effortless. Just as the sole alternative to “lousy” isn’t “perfect,” the sole alternative to “incompetent” isn’t “expert.” All you’ve got to know is some plumbing.
Many years ago, I spent a Saturday in a computer room imaging a server with veteran forensic examiner Paul Brown. Paul is a former Houston police officer who left the force to found a thriving business in the woodlands north of that great muggy metropolis. I opined that corporate IT departments could save by training employees in forensically-sound preservation, because just a couple of matters would defray the cost of the necessary tools and training. Paul didn’t quarrel with me; but, he shared a story about a time he’d spent chatting with a renowned heart surgeon (Houston being world-famous for cardiac surgery). The surgeon said, “Paul, I could teach you how to transplant a heart in a couple of hours. It’s just plumbing. But, it would take me years to teach you what to do if something goes wrong.”
Notwithstanding Paul’s cautionary tale, I think I could teach any motivated lawyer what he or she needs to know about the technical side of e-discovery in a couple of long days–not enough to transplant hearts, but enough to understand the plumbing. That will strike many lawyers as too much time to devote to the topic; but, if I’d said I could teach you what you need to know about the law in a couple of days, most lawyers would counter, “Hey, it took me three years to become a lawyer, and even then I didn’t know diddly about the practice of law.”
I don’t train lawyers and law students to do what experts do, I train them to understand what experts do. Understanding information technology and digital evidence demands delving into the fundamentals of electronic information and systems. Lawyers need a foundation, firm and deep enough to build on; one that finds the happy medium between vague awareness and real expertise. I’m hoping to find that happy medium now as I develop curriculum for e-discovery education, and I could use your help.
Dear Reader, you are among the most competent folks in the world on these matters. Please tell me what you deem the essentials and wish-list items for technical competency in e-discovery lawyers: Not what will turn lawyers into experts; but, what will make them competent and confident to select, direct, understand, supervise, challenge and interrogate experts. What are the core technical curricula for Juris Doctor Electronicus? Need input.