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.
I have been lucky all my life, a fact taken for granted until standout strokes of good fortune prompt grateful reflection. Today, it’s how blessed I have been, personally and professionally, by association with gifted and indomitable women. In the last sixteen months, I’ve presented with Supreme Court Justice Sonia Sotomayor, NPR legal Correspondent Nina Totenberg and last Monday night, most fun of all, Presidential biographer and pop-culture icon, Doris Kearns Goodwin. How’s that for luck!
You’d have to have been in a coma (lucky you) to have missed the presidential ire and fury roused by the book, Fire and Fury: Inside the Trump White House by Michael Wolff and its excerpts in New York magazine. In them, we learn the President is an insecure, incurious buffoon and his posse of dim opportunists are a bunch of toadies and backstabbers (including many doing double-duty as backstabbing toadies). Who knew?
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.
Lawyers spend a ton of time thinking about intent. Intent is what separates murder from negligent homicide. It’s key to deciding whether minds have met to form a binding contract. Intentional torts are punished. Notions of intent pervade the law: testamentary intent, transferred intent, malice, bad faith, mens rea, scienter and premeditation. The intent of the framers of the U.S. Constitution was the linchpin of the late Justice Antonin Scalia’s interpretation of that great document.![mobile-device-security[1]](https://craigball.net/wp-content/uploads/2017/04/mobile-device-security1.jpg?w=222&h=174)
Can anyone doubt the changes wrought by the modern “smart” cellphone? My new home sits at the corner of one-way streets in New Orleans, my porch a few feet from motorists. At my former NOLA home, my porch faced cars stopped for a street light. From my vantage points, I saw drivers looking at their phones, some so engrossed they failed to move when they could. Phones impact how traffic progresses through controlled intersections in every community. We are slow-moving zombies in cars.
Two characteristics that distinguish successful trial lawyers are preparation and strategy.
If you are in New York on Monday evening, please come hear me interview Nina Totenberg, NPR’s legendary legal affairs correspondent, and honor your peers in the corporate and government e-discovery world who are being recognized for excellence in e-discovery strategy, process and success. We will also honor noted author Michael Arkfeld for his contributions.
Ball in your Court 