Friday, December 2, 2011

Computers and Competence

I have a friend who longs for a return to classical education -- a restructuring of education to encourage a reading of the Greek and Roman classics, often in the original languages, taught in the old, traditional way. He believes that such an education develops the kind of memory that is necessary for well-being, and lays the groundwork for learning and the ability to think that is crucial to mature human being.

There is much that is attractive in this vision of education and it may well be that my friend's reconfiguration of education would have a positive effect. But my friend goes further. He sees the root of many of the evils of contemporary education not just in the loss of classical language training, not just in the substitution of the latest novel for a reading of Plato (or even Milton and Shakespeare), not just in the resort to Wikipedia to avoid hours spent in the library -- he is highly critical of computer technology, arguing that all our labor-saving devices save the wrong sort of labor: they save us the labor of finding answers to our questions by thought and extended research; they relieve us of the work involved in remembering facts and details; they allow us to skip the crucial step of putting our ideas and our facts together into a logical structure before we start writing; they mean that we don't have to know how to spell, or understand the rules of grammar and syntax, for they will correct any mistakes we make automatically, thereby relieving us of the responsibility to think through our work. Overall, he insists, computer technology -- from word processors to the Internet to the smartphone -- prevent the development of sound mental habits and diminish us as human beings. In his modern day Platonic Academy, he would prohibit the use of these technologies.

Now this is where my views of sound education and my friend's diverge. Computer technology is part of our contemporary world. If we are to educate citizens who will take an active part in the ongoing project that is our constitutional democracy -- even if we only want to prepare young people to take their places in today's economy (certainly not what I think education should be about, but it certainly is the orthodox view today) -- we must give them computer skills and the thinking abilities necessary to use, intelligently and effectively, the technologies they have available to them. Competent humans cannot engage with their world today or tomorrow without considerable exposure to, familiarity with, and mastery of computer technology.

That last sentence applies, I believe, to lawyers. Competent lawyers cannot engage with their world and their clients, and they cannot work in the courts, without considerable exposure to, familiarity with, and mastery of computer technology. For the past couple of years Jim Knapp and I have been suggesting to Vermont lawyers that unless they understand modern computerized technologies -- from electronic data structures to online storage and management programs, to cell phone technology, to Facebook and Twitter -- they may well be "professionally" incompetent. After all, this technological world is the one in which our clients live and work. It is the world out of which all of our future clients will come, for they will have grown up with computers and all computers do. They will have been educated in schools that make extensive use of computers and online resources, almost to the exclusion of other tools and resources -- schools quite unlike those my friend would like to see established. Most of these future clients will be active in the online world, using contemporary social media for both personal matters and business, and using less and less paper as the years go on (meaning that all their records will be in electronic form).

Indeed, a strong case can be made that in certain areas of practice, lack of fairly detailed knowledge of the latest technologies means that a lawyer is ethically incompetent in violation of Rule 1.1. That case has been made by ESI expert Ralph Losey in a recent blog post. Losey tells us that trial lawyers have a "dirty little secret": the world has changed so fast in recent years that most trial lawyers have not kept up." As a result, most are incompetent to handle electronic evidence, including discovery of their client's documents." Worse still, the majority of trial lawyers, Losey tells us, "are in complete denial of their incompetence." They choose to bury their heads in the sand, hoping that the need to do electronic discovery won't come up in their cases, or imagining that they can just hire someone to do the necessary work without needing to know much about what those contractors are doing.

The trouble, of course, is that our clients have computers and are storing their information electronically. This is especially true of our business clients, but increasingly of our individual clients as well. And lawyers' lack of knowledge about electronic information raises the cost of electronic discovery: if you don't know what exactly you're looking for or where to find it, let alone how, you cast a wider net, wander down dead-end alleyways, pay through the nose for "expert" help, all to the cost of your client or the client on the other side.

Losey notes that most lawyers and judges are not techie-types who find the marvels of the latest computerized, whiz-bang gadgets a source of fascination. As a result, they tend to keep their distance. Anyway, for many years while documents were being created electronically, they were frequently not being stored electronically, especially in law offices; rather, they were printed out and stored as paper documents. So it was unnecessary to delve into the mysteries of electronic data-keeping and the arcana of electronic filing, data storage, and associated occult sciences.

Not anymore. To the extent that lawyers and judges are not technologically sophisticated, argues Losey, they may to that extent be less than competent. For today, documents are not being printed out and stored as paper -- they are being stored electronically, in databases, on servers, in the cloud. That, at least, is the way the rest of the world runs, even if many law offices still have not gotten there. The law is a conservative profession, of course, as many have noted (including Losey), and lawyers err on the side of carefulness and suspicion when it comes to the latest technology. That is good, to an extent. But conservatism can become archaism, and we are rapidly moving to a time when refusal to use the computer technologies of the day will seem musty, obsolete, archaic -- a day when our clients will expect us to be "up" on the latest means of communication and data storage. That day is coming soon, very soon. In fact, it is here now in most places, in most areas of life, in most businesses, in most personal matters, for most of those who need legal services. Losey insists that to serve those clients -- indeed, to serve any clients, even those who themselves do not inhabit an online, in-the-cloud, in-front-of-the-screen environment -- at least in the litigation context, competence means being technologically sophisticated, no matter how much that may go against the grain.

Increasingly, ethics panels around the country are recognizing that lawyers should be able to enter this modern and frequently changing world without fear. Those panels are concluding that ethical rules laid down when files were in cabinets, letters were typed and mailed, and phones were attached by wires to the wall no longer fit the contemporary practice environment and must be changed or, at the very least, reinterpreted using reasonableness as a standard. (See, for example, North Carolina Proposed 2011 Formal Ethics Opinion 6.) If the ethical objections are removed -- as they should be -- lawyers will no longer be able to use the rules to excuse their lack of technological sophistication. In fact, the rules themselves may soon be understood -- and should be understood -- to require knowledge of the technologies that pervade the relationships our clients have with the human world around them (their friends, their transactional partners, their opponents at trial).  

Law schools have come in for their fair share of criticism in recent months, but Losey thinks it is appropriate to add one more complaint to the pile: law schools are falling far short of their obligation to prepare new lawyers for the world in which they will actually work because they only train students in "paper evidence and paper discovery." Law schools, with a handful of exceptions, do nearly nothing to prepare future lawyers for the real demands of trial practice (let alone transactional practice). As a result, students graduate "unprepared to handle the ESI where the truth of past events is now stored." Still one more reason to re-think how legal education is currently structured. Law schools (as well as bar associations) have an obligation to teach new lawyers (and old lawyers) about technology; not to do so is to foster incompetence. And here we can return to my friend: good education requires providing students with the tools and skills needed to be competent participants in today's world, and familiarity with a wide range of computer technologies, tools, and resources is essential to such competence.

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