Lawyers “Dirty Little Secret”?
According to Ralph Losey it’s:
The secret has now been told, once again. Most lawyers are not competent to handle electronic evidence. The lawyers who do know how to preserve and find electronic information have a distinct advantage over their technophobe colleagues. This advantage is growing every day.
Despite this unconverted fact, the primary coping mechanism of trial lawyers remains avoidance and denial. That is where gadflies like me, Craig Ball, and Judge Facciola come in, to point out the obvious and chide them on. So to do the next generation of young Turks, the twenty something baby trial lawyers who know how to do e-discovery. And I mean really know how to do e-discovery and take advantage of others who don’t. I hear the stories my students tell. The next generation of wiz kids are out there shamelessly running circles around their elders, much to the delight of their clients.
But here’s my question. As a non-lawyer working in the legal industry I have heard over and over again that the lawyers will only listen to other lawyers. That you need a practicing attorney to get their attention and educate the rest of the firm, it can’t be done by non-lawyers. Since these practicing trial attorneys who really “get” ediscovery are so few and far between, why not pay attention to the folks who might not be lawyers, but understand ediscovery much, much better than the vast majority of lawyers?
I’d love to hear what Ralph, or anyone else, has to say about this seemingly accepted reality of law firms. Is it really true, and if so, why?
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People, for the most part, respond to change reluctantly. There are two things I can think of that will get people to make changes that are not comfortable. First, people respond to the metrics by which they are measured. Law firms can use compensation as a lever to get people to educate themselves. For example, if a firm uses a system of levels for setting compensation, make it so that you can’t advance a level until you have completed X hours of eDiscovery training in a given year. The risk management attorneys of law firms can have influence here.
As an industry, the state bar associations can make a difference. One of the things I’ve seen is a reluctance on the part of state bars to accept any type of technology training as valid CLE. This sends a clear message that technology is not an important part of practicing law. States need to set standards through CLE requirements. Similar to the ethics credits that are required, they can set eDiscovery credit requirements. While it wouldn’t solve the problem overnight, it would make a difference over time. It would also send a message that technophobic attorneys put their clients at a disadvantage. It would certainly be a less painful learning process than sanctions.
Just my two cents. Of course, I’m not an attorney. Thus, my credibility is about the same as yours. 🙂