Technology Competence? Are You Talkin’ to Me??
6 Ways to Jumpstart Your Technological Know-How
Gee, talk about raising the bar. More and more, attorneys find themselves under pressure—from the bench, the bar, even their own clients—to rev up their technology IQ. More than just a nudge to get practitioners up to speed, bench directives, rules changes and “tech audits” (see True North’s Q&A with Casey Flaherty) are forcing attorneys to come to terms with the fact that technology unavoidably intersects with their ethical and economic obligations as counsel.
Efficiency with office technology to avoid wasting (and billing clients for) valuable time is one kind of issue; the complexities of e-discovery quite another. In the office and the courtroom, the law and the digital era are colliding head-on; as in medicine, technology is quickly becoming an inseparable part of the professional art.
Model Rule 1.1 Ups the Ante Take the recent language addressing the “duty of competence” added to the commentary for Model Rule 1.1 of the ABA’s Model Rules of Professional Conduct (revision in bold):
 To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
Although the ABA kindly notes that the change “does not impose any new obligations” for counsel, it nonetheless seems to suggest that legal competence may be in question if counsel doesn’t know a PDF from a BMW.
On the face of it, knowing the “benefits and risks associated with relevant technology” shouldn’t be that tough a nut to crack, right? But that simple phrase is deceptive; it presupposes a surprising amount of knowledge. The relevant technology in Zubulake when Judge Scheindlin spoke of counsel understanding a client’s “data retention architecture” is far from the relevant technology in question when Judge Peck considered the use of predictive coding in Da Silva Moore. And to be sure, there is a whole lot of “relevant technology” in between.
Moreover, understanding associated benefits and risks, no matter what the relevant technology, means a significant amount of due diligence relative to context. Benefits and risks are value assessments that often require expert analysis; you can’t just refer to your handy benefit-risk checklist and call it a day. All this to say: counsel’s got a learning curve to climb, albeit one that’s justified and necessary.
What’s a lawyer to do? Time demands are tough enough; shouldn’t an attorney’s focus be on keeping up with substantive changes in his or her own field of law without having to worry about the role technology plays in all of this?
Yep. But, sorry. The imperatives of electronic information have changed the playing field forever. Where there is data, there is both technology and risk. It’s now nearly impossible to pursue a major case without having to consider the technological methods and tools that created (and are needed to find) evidence and meet discovery obligations, while avoiding sanctions and keeping client costs in check.
Tips and Resources If you feel that your technical competence could use a lift, here are a few tips and resources that can keep even the most time-challenged lawyer in the know. If you’re really in the dark or just want to be sure you’re on solid ground, exploring the resources mentioned in #1 will be worthwhile, but if you’ve already got some technology know-how, jump ahead to find ways to add layers to your knowledge.
1. Establish a solid technology foundation. There are two well-known organizations that are veritable meccas of information in this realm and can jumpstart any effort to get up to speed:
- The EDRM is a coalition of consumers and providers who create practical resources for enhancing communication about e-discovery and information governance (read: electronic information and technology). Their robust “frameworks” can provide the novice basic technological fluency in the vocabularies of preservation, collection, processing, and technology-assisted review as well as data privacy and security. Of course, each of these areas requires highly specialized skill and expertise to manage and execute, but the frameworks provide enough detail to help demystify some of the complexities for counsel. With the information and vocabulary you find there, it becomes easier to layer on additional knowledge.
- The Sedona Conference®, a legal think tank, addresses technology and the law in many of its working groups and papers as well as providing guidelines and best practices in many areas. There is no charge to download their publications, which run the gamut from glossaries (see: The Sedona Conference® Glossary: E-Discovery & Digital Information Management (Third Edition) to commentaries (The Sedona Conference® Commentary on Ethics & Metadata) and more. Through the associated Sedona Conference® InstituteSM (TSCI), they also provide continuing legal education in many areas, including those related to technology for attorneys, judges and other professionals.
2. CLE’s, a staple in the legal landscape anyway, provide a rich source of information for building on foundational knowledge and upping your technology IQ. But beware, not all CLE’s are created equal. Seek those given or supported by experts with verifiable technology chops. If possible, obtain written materials in advance to see if the content speaks to your needs. The best ways to find relevant CLE’s:
- Bar and professional associations: Check out CLE offerings at conferences or promoted by the ABA (American Bar Association), the ALI (the American Law Institute) or other state and local bar and professional associations. (And don’t forget the Sedona Conference® InstituteSM (TSCI), described above.)
- Online resources: Visit sites like CLECenter.com, an ALM provider of online CLE programs that can be completed for MCLE credit in more than 40 states via online access. Private education companies, such as Lawline.com or any one of a number of legal technology firms also offer a wide selection of courses.
- Webinars: Law firms and e-discovery vendors often team up to provide CLE webinars that discuss the latest technologies or cases in the news; stay alert for emails you probably receive that promote them. Law.com, a robust online legal resource under the ALM umbrella, has a section devoted to upcoming webinars on tech topics. Such events are usually archived and available to watch on demand.
- In-person CLE’s: Request CLE’s to be presented at your firm. H5’s experts, for example, frequently provide CLE’s for law firms on the topics of keyword search, types of technology–assisted review, search and e-discovery best practices, and measuring accuracy in document review.
3. Hit the legal technology watering holes:
- Online magazines and journals: Read magazines and journals (online or in print) with a technology focus. Law Technology News (aka “LTN”), is the go-to magazine for accessible information about the latest technology and case-related commentary. The ABAJournal has a Legal Technology section. For more scholarly articles, see Journal(s) of Law and Technology (JOLT) such as those offered by Harvard or Richmond.
- Social media groups: Join topical social media groups such as LinkedIn Groups, where members share insights and questions about technology tools and methods as well as topical case information.
- Blogs: Since the water cooler has been replaced with bottles, blogs are the next best thing for the latest buzz. Most law firms, e-discovery vendors and legal associations have them, and technology-related topics are common. Some law firms specialize in providing up-to-date case summaries for ediscovery matters (e.g., Electronic Discovery Law from K&L Gates) while other firms have e-discovery counsel who make it their business to blog on hot technology-related topics. The easiest entry way to locate a topical blog is via Google (or the search engine of your choice); enter your topic of interest with the word “blog” in the search string.
4. Although the digital overload may render you comatose (and be sure to wear sensible shoes), a Legal Tech event can be a real eye-opener when it comes to understanding the impact that technology now plays in the legal realm. Rife with techno-savvy members of the bench and bar, debates are usually lively and informative, and it’s a good place to find collegial resources to answer questions. Buyer beware, however; go to learn, not necessarily to believe when you walk the floors that demo technology—this is essentially a sales event, after all. With practically every type of legal software and system platform on display, a day at Legal Tech will either snap you out of complacency or send you to a career counselor.
5. Chat with your lit support team or IT representatives, and ultimately your clients—or better yet, take them to a “topical” lunch. Often, what seem like technology hurdles are actually communication issues. Establishing relationships with folks who are likely to know more than you do can be an effective way to find out what you don’t know; then they can help you fill in the gaps or you can target those areas by the means listed above.
6. Last, but certainly not least, seek out experts. Lawyers know the value of expertise; they make their living by it. Technology used in the legal realm, especially for e-discovery, search, and technology-assisted review, is complex. It requires the input and analysis of those who are experts in particular aspects of the field. If you have trusted experts available to you, especially ones that will work with you to raise your level of knowledge, who knows? You may one day find your technology competence is one step ahead of the law.