Lawyers and Technology: A Bad Marriage Gets Worse
This genie will not be put back in the bottle. Technology’s encroachment continues unabated. We have smart cars, smart TVs, and even smart toasters. “Smart,” however, is often more about potential than function. Smart suggests a proliferation of buttons, menus, and options that only make sense after hours of trial and error aided by a dense instruction manual.
The Myth of the Digital Native
The kids will save us. They grew up immersed in technology. Wrong. The digital native is a myth.1 Acquiring a Twitter account in utero does not bestow an innate ability to commune with the machines. While 83 percent of millennials sleep with their smartphone, 58 percent of them struggle to solve basic problems using technology.2 Most of what passes for the technological sophistication of our youth comes in the form of passive consumption or, at best, rudimentary communication ( e.g. , texts, Facebook). They are not trained, and, therefore, do not know how to use the technology they encounter in a professional environment.
That young and old alike struggle with technology in the professional environment is unsurprising. The tools used are far from intuitive. Eventually, user interfaces and user experiences will improve. Someday, technology will work like magic. But today is not that day. In the meantime, our personal lives have gone digital (smartphones, connected cars, wearables). Our commercial lives have gone digital (shopping, taxes, banking). Our professional lives have gone digital (e-filings, e-signatures, e-discovery). And most of us, kids included, operate barely above the threshold of survival. Our technological competence is just enough to get by, for now.
In an information economy, attention is the scarcest commodity. We have finite attention to allocate to technologies that presume trained users. This challenge is not limited to individuals. Studies3 find that for every dollar spent on new technology, enterprises must invest an additional $10 in organizational capital — training and process redesign — to capture the technology’s full benefits. Related studies4 find that it, therefore, typically requires five to seven years for an enterprise to properly integrate new technology. Without the complementary investment of time and resources, the technology only partially fulfills its promise, if at all.
The Digitization of the Legal Profession
E-filing, and the attendant need to be able to manipulate digital information to serve as an officer of the court, has been around since 1995. But it was not until 2013 that the ABA added “technology” to Model Rule 1.1 on competence.5 Since then, 14 states have followed suit. But even those states that haven’t yet amended their ethics rules are recognizing the proliferating importance of technology to our professional lives. On June 30, 2015, the State Bar of California finalized a formal opinion holding that insufficient understanding of electronic discovery can violate its unamended rules of professional conduct.6 The import of the opinion was broadened by the observation that “[n]ot every litigated case involves e-discovery. Yet, in today’s technological world, almost every litigation matter potentially does.” Indeed, even more generally, “Legal rules and procedures, when placed alongside ever-changing technology, produce professional challenges that attorneys must meet to remain competent.”
Today’s technological world changes so rapidly that less than a month after the California ethics opinion, the Second Circuit revived a case7 by a document reviewer claiming that his work did not require legal judgment (which bore on employment classification and issues like overtime pay). The court found, “an individual who, in the course of reviewing discovery documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law.”
We live in strange times. Lawyers are required to understand the technology that is replacing them. Grasping the technical aspects of digital document storage is more fundamental to being a lawyer than reviewing potential evidence to determine if it is relevant to a litigation.
We’re a decade past the point where a lawyer would even try (and fail)8 to argue “excusable neglect” for missing a court deadline because he did not regularly check his email. Instead, our world will increasingly become one of email goofs landing lawyers on the front page of The New York Times9 ; “Excel errors costing clients millions,10 mishandling of electronic evidence resulting in sanctions,”11 and lawyers being taken to task for not thinking to use Google.12
New World, Same Response
While times change, the answer is the same as it ever was for lawyers operating in an ever-evolving world: training. Our profession has long recognized the need for continuing legal education, which needs to include the proper use of technology essential to the modern practice of law.
1 Neil Selwyn , The Digital Native —Myth and Reality, 64 Aslib Proceedings: New Information Perspectives 364 (Jan. 2009), available at http://comminfo.rutgers.edu/~tefko/Courses/e553/Readings/Selwyn%20dig%20natives,%20Aslib%20Proceedings%202009.pdf.
2 Change the Equation, Infographic, http://changetheequation.org/sites/default/files/CTE_Technology_Skills_Infographic.pdf.
3 Erik Brynjolfsson & Lorin M. Hitt, Computing Productivity: Firm-Level Evidence, MIT Sloan School of Management, http://dspace.mit.edu/bitstream/handle/1721.1/5417/4210-01.pdf?sequence=2.
4 Timothy F. Bresnahan, Erik Brynjolfsson & Lorin M. Hitt, Information Technology, Workplace Organization, and the Demand for Skilled Labor: Firm-Level Evidence, 117 Quarterly J. of Econ. 339 (2002), available at http://qje.oxfordjournals.org/content/117/1/339.abstract.
5 Matt Nelson, New Changes to Model Rules a Wake-Up Call for Technologically Challenged Lawyers, Inside Counsel
(Mar. 28, 2013), available at http://www.insidecounsel.com/2013/03/28/new-changes-to-model-rules-a-wake-up-call-for-tech.
6 State Bar of California, Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-193, http://ethics.calbar.ca.gov/Portals/9/documents/Opinions/CAL%202015-193%20%5B11-0004%5D%20(06-30-15)%20-%20FINAL.pdf.
7 Staci Zaretsky, Federal Appeals Court Says Doc Review Is Not Real Legal Work, Abovethelaw.com, http://abovethelaw.com/2015/07/federal-appeals-court-says-doc-review-is-not-real-legal-work/.
8 Jessica Belskis, Electronic Case Filing: Is Failure to Check Email Related to an Electronically Filed Case Malpractice?, 2 Shidler J. L. Com. & Tech. 13 (Dec. 16, 2005), available at https://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/377/vol2_no3_art13.pdf?sequence=1.
9 Tom Mighell, The Cyber-Ethical Criminal Defense Lawyer (Or, How Not to Commit Malpractice with Your Technology), 73 Texas B. J. 540 (July 2010), available at https://www.texasbar.com/AM/Template.cfm?Section=Texas_Bar_Journal&Template=/CM/ContentDisplay.cfm&ContentID=10472.
10 Debra Cassens Weiss, Excel Error by a Cleary Gottlieb Associate Alters Lehman Asset Deal, ABA J. (Oct. 16, 2008), http://www.abajournal.com/news/article/excel_error_by_a_cleary_gottlieb_associate_alters_lehman_asset_deal1.
11 Blockbuster Sanctions Order Spotlights the Importance of eDiscovery Competence, Recommind (Aug. 12, 2015), http://www.recommind.com/blog/breaking-news-blockbuster-sanctions-order-spotlights-importance-ediscovery-competence.
12 John G. Browning, The Affirmative Legal Duty to Address Social Media Evidence, Next Generation E-Discover Law Blog (Dec. 19, 2011), http://blog.x1discovery.com/tag/johnson-v-mccullough/; The Clinton Law Firm, Iowa Supreme Court Suspends Lawyer for Failing to Recognize Nigerian Scam, Chicago Legal Malpractice Lawyer Blog (Dec. 18, 2013), http://www.chicagolegalmalpracticelawyerblog.com/2013/12/18/iowa-supreme-court-suspends-lawyer-failing-recognize-nigerian-scam/.
Casey Flaherty is a lawyer, consultant, writer, and speaker based in Austin, TX. He is a former in-house counsel and the creator of the Legal Technology Assessment, an integrated technology and training platform.
This article was previously published in Currents and is reprinted with permission.
