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.
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Joshua Rubin said:
I think you’re selling yourself short when you say that “competence in e-discovery doesn’t take all that much.”
I think that technical ediscovery competence is rare among litigators because litigation and information technology are two very different interests. Litigation requires the ability to deal with people. Technology requires the ability to deal with things.
Some litigators write well. Some are great on their feet. Some can make it rain. People capitalize on their strengths and interests. Some of the best litigators I know simply have no interest in what’s under the hood of their computers. For litigators who aren’t interested in tech, learning tech is an uphill battle.
I once deposed a product manager at a major internet software company. He may have been a good manager but he didn’t know the difference between the web and the internet. Or whether there was FTP before the web or vice versa. I did, because I was interested in the (I)nternet at a time when almost the only content on the (I)nternet was content about the (I)nternet.
IMHO, litigators who are interested enough in tech have tried at least some of the following things purely out of interest or curiosity:
– unhidden their hidden operating system files;
– opened an exe or HTML file in a plain text editor;
– used a hex editor;
– used a packet sniffer;
– experimented with software that they have no competence in, like CAD, 3D modeling, illustration, or audio editing;
– browsed for obscure system utilities on download sites like CNET;
– browsed the Microsoft download section for interesting, potentially useful free add-ons, plug-ins, themes, etc.;
– downloaded and installed obscure programs they never even knew existed;
– used regedit despite warnings about fools rushing in;
– tried obscure, questionable system tweaks;
– become proficient in using System Restore;
– written a macro, script, batch file, or program;
– edited config files in a text editor;
– used GOPHER, WAIS, Telnet, the Lynx browser, or XTree;
– kept a copy of any DOS program “just in case”;
– found online repositories of DOS programs;
– modified their autoruns; or
– disabled unnecessary system services.
When tech-oriented people want to do something that tech can provide, they learn the tech instead of delegating it or asking a friend. They change the default settings. They RTFM. They find tech-based ways to do more with less.
Most other people don’t, and so they don’t learn to.
Thank you for the comment, Joshua. I am not selling myself short because I am not holding myself out as a standard of competence others should aspire to equal or exceed. I specialize in this stuff 24/7; so when it comes to electronic evidence, I’m more the heart surgeon than the plumber. The tasks you cite are many of the things a person might do to organically teach themselves a great deal about information technology; but, they do not comprise the list of tasks I regard as particularly pertinent to understanding IT to gain core competency in e-discovery. I appreciate the list–it is a trip down (64K) memory lane for me. I just wouldn’t want readers to be intimidated by reading it and deciding that they never want to be that technical. Thanks again.
Joshua Rubin said:
Craig, for clarity, your expertise may make it appear that more litigators should be able to attain basic competence in ediscovery than actually can. My experience is that basic competence requires more than basic training; it requires a technical receptivity that is rare in litigators generally. If a litigator doesn’t have the mindset, it’s vastly preferable to bring on someone who does.
I’m glad that you enjoyed my list, and I’m glad that you clarified that it is in no way a curriculum.
CAtkins Support said:
I have spent the better part of my life educating people about computers. When I entered the world of litigation support, I quickly realized and was told point blank that many attorneys don’t want to know about the technology. I often asked myself how a case involving e-discovery could be argued by an attorney who didn’t understand any of the related concepts. There is a similar situation with vendor sales teams–how can you sell a product when you lack a fundamental understanding of what it is?
So, my answer was to come up with an approach that helped get that basic understanding and, hopefully, the desire to continue learning/asking questions in place. Some of the items on my list for an introduction include:
-Basic image information. What’s a TIFF? JPG? PDF?
-Native files. What they are. Where they can be stored.
-Data size. What’s the difference (MB, GB, etc.)?
-Media storage types. How much data can they hold? When is a specific type appropriate?
-Databases. What are they? How do they generally work?
-Delimited text files/load files. What are they? Why are they necessary?
-Metadata. What is it? How and when can it help with a case?
-Extracted text vs. OCR.
-Searching. When to use what methods to get to the most relevant documents.
The list goes from there. While these things may seem simple to many of us “tech folks,” they are just the beginning for many.
Once the basics are in place, the questions come rolling in. Attorneys are smart people who are (usually) naturally inquisitive. Those that I have taught really want to understand what I’m telling them, which often leads them deeper into the technology.
The issue you point out goes far beyond the attorneys–it is rampant across so many within the legal world. Finding the best way to present the information to novices and intermediates alike is certainly a challenge. Trying to find the best way to provide useful information without giving someone “just enough information to be dangerous” is yet another challenge. The biggest challenge; however, is finding the best way to remove the fear. After teaching introduction to computers classes over the years, I have found that removing the fear is the first step in getting people to want to really understand.
Thanks. That’s a helpful list. A couple of your items handily fill in some missing pieces (image info, data size). I appreciate your taking the time to weigh in.
CAtkins Support said:
You are very welcome! Glad I could throw in my $0.02 🙂
JColeman @ East Texas Attorneys needing help said:
How do I hire you to do that for my firm? That is exactly what we are looking for to get started with the process, and I’m trying to find a consultant to teach exactly what you just said you teach.
Thank you. I’ve spent plenty of time in Lufkin as my in-laws lived in Nacogdoches. But probably not cost effective for me to come to you.
Why not have your firm retreat in conjunction with the Georgetown Law School E-Discovery Training Academy in Washington DC in early June? Lovely time. Lovely place. Great education and team building opportunity. I don’t earn a penny from it. I’m a volunteer faculty member.
CAtkins Support said:
Hi JColeman! You can reach me directly at firstname.lastname@example.org.
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Here are a few things attorneys should learn:
– The difference between taking a full image of a computer and a target collection of data, and why to do one or the other
– Acquiring all the data on a phone or computer can take a long time depending on many different factors. This ain’t CSI where it takes a few seconds.
– How a Webmail collection, an Exchange collection, and a PST collection differ. (Once, I was hired to fly to a remote location to do an email collection. Turns out it was an gmail collection I could have done remotely from the lab…not the best use of the client’s money.)
– How/why collecting phone data is different than computers.
– Basics of encryption.
– Filter out movies and music during processing
– understand the family relationships of some files (like email) and how to ensure privileged items are not produced to the other side.
– how to go beyond searching and do better filtering/limiting on common metadata fields.
Those are all great, Kyle. Thanks.
I accept and applaud your challenge to help identify “the essentials (which) will make (lawyers) competent and confident to select, direct, understand, supervise, challenge and interrogate experts”. The proposed California ethics opinion, for example, raises awareness of the issue while falling short of providing any practical means or process for determining an attorney’s actual competence, whether in support of an earnest self-assessment or a court’s (or adversary’s, or a CLIENT’S) legitimate inquiry. Practitioners with ideas on the subject have now been afforded an opportunity to help make real progress on defining the nuts-and-bolts, practical criteria for eDiscovery (eD) competence, ultimately enabling objective inquiry of any lawyer’s competence by those who have a right to know.
My own (initial) wish list includes an inventory of EXISTING educational resources – already available to motivated attorneys seeking some reasonable semblance of technical (NOT expert) competence – such as:
– Judge Scheindlin’s casebook;
– a compilation of the best-available CLE’s and texts on various aspects of eD, cross-referenced by eD issue and lifecycle (e.g., by Sedona concept and EDRM “box”);
– references (beyond the 2 linked in your post) to available, well-designed, vendor-agnostic programs offering motivated attorneys a relatively quick and cost-efficient means to technical knowledge (no commercials here, they’re easy to find);
– even (gasp!) every lawyer’s option to pursue a degree (or work experience) in IT.
A much broader set of options providing higher capacity will be required, to be sure, but the market is not devoid of options – most of which have, nonetheless, failed to enroll significant numbers of attorneys.
Which is why I would urge respondents to simultaneously consider an underlying (yet telling) question:
‘WHY’ (almost a decade after ESI found its rightful prominence in the Rules) ‘HAVE SO FEW ATTORNEYS BOTHERED TO ACHIEVE COMPETENCE IN eD? WHY HAS A TINY PERCENTAGE OF PRACTICING ATTORNEYS’ (based on the opinions and statements of knowledgeable judges and attorneys, in forums ranging from the Duke Conference, the Boston eDiscovery summits, the annual Georgetown eD events, the Mercer summit and Federal Judicial Center pilot, the Carmel Valley retreats, ESIbytes, etc., etc., etc.) ‘CONSIDERED INVESTMENT IN IDENTIFYING AND CLOSING GAPS IN THEIR OWN eD COMPETENCE AS “JUSTIFIED”?’
In short, why are so few horses thirsty enough to drink the water that’s already in the trough?
The “water” your effort divines will, without question, be “cleaner and purer” – and more plentiful – than today’s trickle. My fear is that the horses will (continue to) lack the incentive to drink – or worse, fail to even fear dehydration.
For those who respond to your challenge going forward, let’s all include thinking around how today’s incentives – the real consequences for attorney incompetence, and clarity around the advantages of eliminating it – might need to be improved to actually motivate progress. That “herd” of thirsty nags might only become thoroughbreds with the right mix of hydration and husbandry.
Kay McCarthy said:
I have taught CLE’s and eDiscovery classes to attorneys and paralegals for the past 12 years. The key I continue to come across is that litigators do not view electronic discovery data as evidence. In most instances it is something they believe that it is something they have to “get through” to get to the evidence needed to try their cases.
Perhaps a rules of evidence class relating the lowly TIFF to an unauthenticated piece of evidence at trial that a judge would deny admission for would connect the dots. You would likely never find an attorney who doesn’t know the rules of evidence.
Thinking out loud here….
Thank you for emphasizing in much greater detail and clarity a point I stressed in a recent presentation I gave to Houston attorneys and records managers. While not nearly as emphatic and to-the-point as you do so well, I suggested they must have a strong understanding of the terms and (to an extent) the mechanics of discovery, especially leading up to and including the analytics activities, because…they are the ones who stand in front of the court or across from opposing attorneys and explain why they chose to conduct discovery in the manner they did. Subject matter experts can be called upon to explain specifics, but the attorney just has to know why they did what they did. As a wise CEO once said, “I don’t have to be the smartest guy in the room; I just have to be the smartest guy at the moment I’m talking.” What he meant, of course, was that he had to know what he was talking about when he talked, not just blow smoke.
The examples of possible items for attorneys to be knowledgeable of given by respondents here is great. My humble RM suggestion would be for you to “hit the road” – in a good way, of course! Maybe grab an IT or RM subject matter expert or two and, with your considerable influence and recognition, get in front of some leading (or bleeding) edge law firms and say what you’ve said here – use a forum to emphasize that there are experts to back up the attorneys, but they have to lead the charge.
Excellent, excellent article, BTW.
Thanks. I really like that CEO quote.
Michael Levine said:
I do not think you start with the operational details. I think you start with the big concepts. And of course, you really have to start in law school.
I would make an analogy to the “Accounting for Lawyers” course I took decades ago. The big revelations in that course were the basic concepts — debits, credits,double entry, balance sheet, income statement, account. One you understand the basic concepts all the other accounting jargon falls into place.
So, for “Tech for Lawyers”, here are some basic concepts that most lawyers — most non-people — do not have a good handle on.
– The basic concept of a file as the basic link between physical storage and human meaningfulness. Windows Explorer.
– The basic concept of processing as the computer following instructions. Excel and Word. Do a “hello world” exercise with an Excel macro. Show them examples of huge programs that they are never going to have to understand unless it comes up in litigation because a mistake cost someone some money.
– People do understand the concept of electronic transmission of signals because they know that phones work
– Explain and show how the internet and email are based on electronic transmissions that make copies of files and then programs and devices that make it easy for humans to see the information contained on the files. Show them html in Notepad and then how it looks in a browser. Same with email source files. Edit the html and then show how it looks different in a browser. People need this to understand the source of metadata.
– Database as organized way to manage data. What does Oracle do that made Larry Ellison so wealthy? Exercise — join two tables. Show examples of huge schemas.
– Demystify typical applications — Amazon, online banking — back end, front end, a middle that connects them. Also, show typical setup of a big corporate email system.
– I am missing some things but you get the point. The foregoing is maybe the first five weeks. Go from there. A semester of this, starting with the real basics, will go a long way.
– You could then talk about the history and current state of legal technology. How search works. How legal tech applications store things. With the grounding in the basics, this will be much easier to explain.
Since it is a law school course, bring in cases where issues came up. Why you can’t really delete an email. The law and practice of legal holds. By the end they can be learning the big e discovery cases, such as da Silva Moore. But make sure you translate what is happening in the cases to what is really going on the the tech.
Then, offer a seminar on the statistics issues — recall and so forth.
Finally, if you are trying to get this to experienced lawyers who are busy, I think this can be compressed into a 4-day offsite conference. No more than 20 attendees.
Michael Levine said:
Correction — Paragraph 3 — I meant to say, “most non-tech people”, not “most non-people”.
Ken Treece said:
This may be too much into the weeds, but portable storage media generally use FAT32 file systems with a 4GB file size limit. This can create confusion when, for example, 8GB of data won’t copy to a 16GB thumb drive. So, maybe a brief explanation of the difference between FAT and NTFS file systems, which ties in to media storage types and data sizes.
And, thanks for the consistently excellent articles on e-discovery.
That’s an excellent point–one I’ve tended to make with respect to the Joliet file system (e.g., why is there only one data value on CDs), but very worthwhile to address with respect to FAT and NTFS when collecting and delivering data. Thank you.
The topic of attorney technology competence was explored in a session at the 2014 Boston eDiscovery Summit, which provided insight to the problem of baselining and quantifying competence gaps among outside attorneys.
In “The Competent 21st Century Lawyer”, Professor Andrew Perlman, Esq., of Suffolk Law School, describes an innovative legal technology audit of law firms that was pioneered by Casey Flaherty, corporate counsel at Kia Motors America, and subsequently automated and made available for other interested organizations by Suffolk Law School. Although KIA’s initial focus was on the costs related to poor Microsoft Office skills among outside counsel, the school’s strategy included plans to extend the approach to address eD competence gaps. Video of the presentation is available on Youtube (http://youtu.be/E9H41oP99N4 and http://youtu.be/_3B9wQeU0zo), and the presentation slides are also provided (see http://bostonediscovery.com/wp-content/uploads/2013/12/Andrew-Perlman-21st-Century-Lawyer.pdf).
The assessment of technical competence is often a “start-of-course” milestone among higher-quality education services like Arkfeld’s eD curricula, which can then be compared to post-course test results to measure actual improvements in skill. A baseline set of criteria might be useful to the effort described in this blog. Suffolk’s objective (at least as conveyed in 2014) was to make a useful process and set of benefits available more widely without the burden of a profit requirement: perhaps other providers (especially those focused on the eD skills market) might be inclined (or persuaded) to share their own criteria. Certainly, the need will arise in California when the proposed State Bar of CA Formal Opinion (http://www.calbar.ca.gov/AboutUs/PublicComment/201501.aspx) is finalized later this year.
Correction: the presentation is just the single Youtube video at http://youtu.be/_3B9wQeU0zo. (In the other video listed, Professor Perlman illustrates the use of Google Glass).
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