C. Michael Ellingburg
My first year of law school consisted of studies in constitutional law, contracts, torts, property, civil procedure, and legal research. I saw these as the six pillars on which legal knowledge and practice were built. Thirty-seven years later it is impossible to imagine the practice of law without an understanding of the technology which permeates every aspect of our day-to-day practice. While the “human element” will remain the dynamic core of what we do as trial lawyers, technology has changed the tools and methodologies required for our work. It is a primary driver in law office management; legal marketing and attorney selection; information transfer, storage, retrieval, and security; legal and factual research; preparation and filing of pleadings and papers; discovery in adversary proceedings; communications and reporting; case team collaboration and management; and presentation of evidence and demonstrative aids at trial. Technology has become foundational.
Against this backdrop the American Bar Association’s House of Delegates voted in August 2012 to approve changes to the Model Rules of Professional Conduct which require practicing attorneys to “keep abreast of changes in the law and its practice, including the beneﬁts and risks associated with relevant technology . . ..” MODEL RULES OF PROF’L CONDUCT R. 1.1 cmt. . (as amended August 2012). The changes extend this obligation to the lawyer’s duties to promptly respond to client communications, avoid conﬂicts, maintain client conﬁdentiality, and protect the rights of third parties. An understanding of the technologies applied to the day-to-day practice of law has assumed a key position in our ability to efficiently meet our ethical obligations and to deliver to our clients the quality of service required.
Technology awareness appears to be even more important for trial lawyers. While all lawyers have to deal with the expectation of accelerated response times and increasing efficiency demands from which the profession once seemed immune, the adversary process presents an additional layer of potential complexity. Electronically stored information (ESI) and digital communications require advocates and courts to revisit how parties conduct discovery. Relevant recorded facts may be hidden within a mountain of potentially relevant information, but the sheer volume of ESI can make discovery of the critical case information more difficult to accomplish. The efficient and effective capture, storage and use of ESI has created a new segment of the consulting industry and stimulated the development of new storage and retrieval technologies, and discovery tools such as predictive coding. While different systems may appear to perform the same functions, the actual capabilities of different vendors systems can vary signiﬁcantly, and one may be much better than another depending on the speciﬁc types of documentation electronically stored. From an efficiency standpoint, video (as distinguished from videotaped) depositions may save signiﬁcant time and expense in the appropriate situation. Likewise, effective searches of the internet may yield information on parties, witnesses and jurors, providing key insights which may be useful during the proceedings.
Beyond discovery, with the leadership of the federal courts, legal proceedings, and trials are becoming virtually paperless. The days of carting bankers’ boxes of documents into the courtroom for trial are, to a large extent, in the past. Today most of the documentary evidence in a business dispute will never see a tangible medium from the time the information is stored through the time the data is presented in its electronic format at trial. This revives authentication issues which seemed to have disappeared with the admission of copies, and raises questions concerning the use of metadata to establish authorship and drafting history, or for cross-examination. Different technologies have also made the use of sophisticated demonstrative aids possible, and in a world of high definition television and short attention
spans, the party with the best demonstrative aids has a clear advantage. Attorneys simply cannot remain trapped in a world where their VCR is blinking “12:00.”
The good news is that the same technology which cranks out terabytes of ESI is developing appropriate solutions for law ﬁrms of all sizes. The recently completed annual Tech Show organized by the ABA Law Practice Management Section brought vendors of the latest technologies developed for lawyers to address these issues together with lawyers and educational programs meeting the needs of everyone from solo practitioners to large ﬁrms. Beyond what was available at the Tech Show, the ABA and many other groups offer resources online to jump start an attorney or ﬁrm’s introduction and continuing efforts tomeet our new ethical mandate. Technology is advancing, rather than remaining stagnant, and ﬁrms that will succeed in the future must adopt and adapt to these changes.