The Latin maxim Docendo Discimus means “by teaching, we learn.” So true, because absent my need to stay up-to-date to teach, it’s easy to fall behind. I teach various places, but of longest standing at the University of Texas School of Law, my alma mater. My subject is E-Discovery and Digital Evidence, a three-credit, 14-week course. In my course, information technology enjoys equal status with case law and procedure. Half the semester is dedicated to mastering the “e” in e-discovery: the foundations of modern information storage and retrieval. That balance is unique among law school courses. I don’t elevate information technology because I happen to know how to teach it; I do it because I think it’s what the students need most and don’t get. It’s certainly what lawyers need most and don’t get.
Why?
Surprisingly, that’s a contentious question. The arguments against teaching the technology side of e-discovery and digital evidence range from “it’s not law” to “lawyers hire people for the tech stuff, so why bother?”
I think the explanation for the marginalization of information technology in e-discovery classes is simpler: lawyers teaching law school classes have a limited ability to teach technology. My guess is that if the teachers knew the technology as well as they know the law, there would be more balance in the curriculum.
The limits of instructors hobbles the curriculum of e-discovery, which should spring from the needs of the students. We should gear our syllabi to what must be learned rather than what can be taught. First, let’s teach the teachers.
That won’t be easy. The level of interest is low, and who wants to draw the circle of competence to leave themselves outside the circle? Too, there are virtually no instructional channels or materials. No formal incentives. No funding. Many invested in the status quo ante. And all that aside, there’s a dearth of experienced instructors. We are fuc… challenged.
Houston is my hometown. I wasn’t born there (though both my children were); but, I got there as quickly as I could, at age 17 to study at Rice University. I practiced law in Houston and kept a home in the Houston area for 38 years, longer by far than anywhere else. I have deep Texas roots, proud Houston roots. So, it pains me to see what’s happening in Harris County, and as a past President of the Houston Trial Lawyers Asociation, I’m thinking of all my colleagues whose offices are submerged or inaccessible and whose practices will be devastated and disrupted by Hurricane Harvey.
This article makes the case for routine, scalable preservation of potentially-relevant iPhone and iPad data by requiring custodians back up their devices using iTunes (a free Apple program that runs on PCs and Macs), then compress the backup for in situ preservation or collection.
Cybersecurity and personal privacy are real and compelling concerns. Whether we know it or not, virtually everyone has been victimized by data breach. Lawyers are tempting targets to hackers because, lawyers and law firms hold petabytes of sensitive and confidential data. Lawyers bear this heady responsibility despite being far behind the curve of information technology and arrogant in dismissing their need to be more technically astute. Cloaked in privilege and the arcana of law, litigators have proven obstinate when it comes to adapting discovery practice to changing times and threats, rendering them easy prey for hackers and data thieves.
Two characteristics that distinguish successful trial lawyers are preparation and strategy.
“Will the person who left their cell phone at the security checkpoint please retrieve it?” People constantly leave their phones behind at security checkpoints, washrooms, checkout counters and charge stations. Too, the little buggers slip out of pockets and purses. More than three million phones are lost in the U.S. every year, and less than one-in-ten lost phones finds its way home. Saturday night, I found an iPhone on the floor at a big party in the Faubourg Marigny in New Orleans. I located the owner by asking everyone in sight if they’d lost a phone, and when I found her, the owner didn’t know she’d dropped it.
In my law practice, I use PowerPoint more frequently than Word. Word processing tools are for preparing documents for people to read and understand; I use presentation tools like PowerPoint when I want people to see and understand. PowerPoint isn’t a word processor; it’s a visual presentation tool. You can fill slides with text as you might a word-processed document, but when you do that, you’re killing the power of PowerPoint.
I haven’t posted in ages per the Mr. Ed Rule. For those too young to remember the talking horse of early-60s TV, the theme song says, “Mr. Ed will never speak unless he’s got something to say.” Sorry, Wilbur. I just didn’t have anything to say, and didn’t wish to waste your time. But, now I’ve got something worth writing about, and a gift to share.
