The overall level of eDiscovery competence exhibited by its oft-begrudging participants leaves some wanting. But though the profession generally gets a bad rap in this regard, it is hard to dispute that the bar’s tech savvy is rising — slowly, yes, but rising nonetheless. There are a number of reasons for this: the maturing of legal tech and the subsequent rise of expertise within the field, a more demanding judiciary, robust educational forums, and so forth.
Generational change is often identified, with these others, as a leading driver of ascendant technical ability. It is assumed that young lawyers, who grew up with iPhones and video games, are more technically adept and, thus, more capable of adequately performing eDiscovery. Is that assumption accurate? Or is it actually the fact that law schools — with their focus on legal theory, not practice — are producing attorneys who’ve just as much (or as little) ability to face the data complexity of real-world litigation as their elder brethren.
In the first part of our three-part interview with A. Marco Turk, a renowned appellate attorney and mediator, we discussed why law schools tend to emphasize theory over practical skill. In part two, we look more closely at what impact this approach has on the profession’s practitioners and the judicial system itself.
Logikcull: It is certainly true that some students who, for instance, go to a “tier 1” law schools envision practicing at a Big Law firm. But the reality is that the vast majority of young attorneys end up working at small law firms or they set out on their own. They don’t have access to the technology or the support resources that lawyers at these big firms do. So for many, as a prerequisite of practicing law today, you need to be able to do [discovery] on your own. I think that’s where learning eDiscovery from soup to nuts in law school is really going to have a big impact on a lot of these students’ careers — because for some people, they have nobody else to rely on. Do you have any thoughts on that?
A. Marco Turk: You’re right, there’s a different category here between the big law firms that have eDiscovery departments, and the average single practitioner who needs to have this information on his or her own. So that’s another thing for law schools to consider when they think about how this kind of training should be presented. If you’re going into a firm with its own [litigation support department], it would probably benefit you to learn eDiscovery in a different way than you would if you’re starting a solo practice. So there are considerations for how the education should be structured.
Logikcull: What are the consequences on the legal system of the relative absence of legal technology and eDiscovery training in law schools?
AMT: Aside from the fact that it’s aggravating a lot of judges, who in their own right may not even have the knowledge or the information in this big area but expect the lawyers to have it, it’s putting lawyers and their clients at risk. It exposes lawyers to the potential of malpractice, and can put clients in jeopardy of losing their cases, or coming out on the short end even when prevailing. There are so many problems that arise over the course of a case if you’re not equipped to handle its eDiscovery aspects. You could even have your case dismissed. The consequences are serious in all respects.
“It exposes lawyers to the potential of malpractice, and can put clients in jeopardy of losing their cases.”
Logikcull: Going back to law school training, at a minimum, what do you think a law school-level eDiscovery course should teach? What skills and knowledge should students who’ve taken these classes have learned?
AMT: There are all different ways to structure an eDiscovery course at a law school level. But students should come away with an understanding of how legal search works, of the different roles involved in an eDiscovery project, and of how to work with vendors. They should know how the Federal Rules of Civil Procedure and Evidence bear on discovery, and should also get an overview of state statutes and rules. They ought to know about the technology that’s available, the privacy and ethical issues discovery poses, and about the consequences of spoliation and sanctions.
Logikcull: You’ve alluded to the risk that a lack of understanding of eDiscovery poses to attorneys and their clients. How would you assess the overall level of attorney competence as it relates to eDiscovery?
AMT: Well, it’s hard to say for sure. But from the work that I’ve done, and the writing I’ve done in the area, and the people I’ve talked to, the level is not particularly high. It’s really below par. In many instances, you’ll find lawyers who have experience in eDiscovery say that the overall level of competence in the profession is at dangerously low levels.
“In many instances, you’ll find lawyers who have experience in eDiscovery say that the overall level of competence in the profession is at dangerously low levels.”
Logikcull: What are the ramifications of that? It seems like one potential consequence would be that lawyers are less equipped to settle these disputes in a manner that’s just, speedy, and inexpensive, in accordance with rules. What are the others?
Marco: Well, it puts ethical violations in play. And if the ethical violations are serious enough, they could lead to disbarring, in extreme cases. There are other potential disciplinary ramifications as well — whether it be privately reproved or publicly removed, or suspended, or they lose their licenses. Those kinds of things can happen, and I think they will happen in the future as eDiscovery becomes more important. Judges will expect attorneys to be proficient in it, and lawyers who are not up to that challenge will expose themselves to these particular areas where they could conceivably get disbarred. You spend all these years getting a law license, and all of a sudden you’re going to lose your ticket. It’s pretty serious.
“You spend all these years getting a law license, and all of a sudden you’re going to lose your ticket. It’s pretty serious.”
Logikcull: Do you think something that severe is going to be what it takes for the bar on the whole to pay more attention to these issues, or do you think that — through better training, better awareness, better teaching at the law school level — the competency level can rise without something so severe happening?
Marco: For the level of competence to rise, the people in decision-making positions at the law school level and in the bar are going to have to understand the seriousness of this, and convey it to members of the bar, who will hopefully then understand what they need to do to acquire the skills. For example, the minimum continuing legal education standards, certainly in California, do not require lawyers to have these skills. They require other things. So one of the ways to raise the level of competence would be to get the bar to change the MCLE requirements so that this particular area would be included. Then lawyers would have to have X number of units or hours in this area in order to meet MCLE requirements. I’ve not heard anybody talk about that.