A distinguished group of trial lawyers recently completed a study on litigation which concluded that the main problem with the U.S. legal system today is e-discovery. Interim Report & 2008 Litigation Survey. Not too unexpectedly, they placed the blame squarely on poor rules, bad law, and judges. They overlook their own role in the problem. The report does not even acknowledge lawyer incompetence with technology as one of causes of the morass. Like the profession as a whole, including most law schools, they are blinded by their own shadow. They have not yet realized the insights of Walt Kelly who said in Pogo: “We have met the enemy and he is us.”
I agree with the eminent trial lawyers and academics that conducted this study that our rules and law need reform, and our judges need to do a better job. But, in my opinion, the fundamental cause of the e-discovery problem is the failure of the legal profession, especially the trial bar, to keep up with the rapid changes in technology. That is why new rules and legislation alone will never fix the problem. Such reforms must be coupled with an aggressive attorney education program that starts in law school. Some law firms today are starting to awaken to this problem and set up internal training programs. So too are a few law schools. But the vast majority of our profession still refuses to own-up to the competency issue. They either ignore the problem of e-discovery all-together, like most academics, or they acknowledge the problem, like this report does, then blame anyone other than themselves.
Interim Report & 2008 Litigation Survey
This interim report, aside from its competency shadow-blindness, is excellent and well written. It is a joint project of the American College of Trial Lawyers task force on discovery and the Institute for the Advancement of the American Legal System, a group based out of the University of Denver. I applaud these groups for recognizing the problem and trying to do something about it. There insights go well beyond e-discovery and I recommend a full reading.
This is an interim draft report. Hopefully they will take these criticisms as constructive and revise the final report to address the competency and education issues. Here is how they begin the report:
The joint study grew out of a concern that discovery is increasingly expensive and that the expense and burden of discovery are having substantial adverse effects on the civil justice system. There is a serious concern that the costs and burdens of discovery are driving litigation away from the court system and forcing settlements based on the costs, as opposed to the merits, of cases. Recalling that one of the original purposes of the discovery rules was to avoid surprises and to streamline trials, many are now concerned that extensive and burdensome discovery jeopardizes the goal of Rule 1 of the Federal Rules of Civil Procedure and of the rules in those jurisdictions that have adopted similar procedures: a “just, speedy, and inexpensive determination of every action and proceeding.” In fact, 81 percent of the respondents to the survey conducted by the Task Force said the civil justice system was too expensive and 69 percent said that it took too long to resolve cases.
I certainly agree with all of these points. The report then goes on to share the results of a survey conducted of the practicing attorney members of the American College of Trial Lawyers. This is a balanced group of plaintiff and defense oriented trial lawyers who must be nominated for membership and are screened for competency. It is considered an honor to distinguish yourself enough to be invited to join. The Trial Lawyers surveyed all of their 3,812 “Fellows,” as they call them, and 1,494 responded; a pretty high rate. The report brags that, on average, the respondents ”had been practicing law for 38 years.” Of course, what this means is that this is a very old group.
Correlation Between Age and Tech Savvyness
In my experience, as a general rule, the older you are, the more clueless you are about technology. Look at Senator John McCain for instance, who candidly admits he cannot use a computer and relies entirely on his wife. In fact, one of his young advisers insisted, and even bragged with a straight face, that McCain is indeed aware of the Internet. This age/tech-ignorance correlation is especially true with trial lawyers, who tend to focus all of their technical attention upon the finer points of persuasion and the law, not on computers and algorithms. After all, if they had liked math and science, they would have gone to medical school.
I have been a trial lawyer myself for most of my career. To be honest, although I was pretty good at it, I was usually too distracted and interested in computers and technology to be one of the greats, not to mention the fact that my cases almost never actually went to trial. One side or another would almost always blink at the last minute and decide not to roll the dice on a judge or jury. I stopped doing general litigation work entirely over two years ago, so that I could devote myself full time to what I really love, e-discovery.
In my work as a litigator, I have been fortunate enough to get to know many great, honest-to-God trial lawyers. They are a smart and gregarious group, but most are almost totally inept when it comes to computers. Some even secretly still use their secretaries to send email. In fact, I recently heard about a senior litigation partner in a top national firm (not my own) who sent out a memo to his young associates asking if any of them knew how to use “The Google” to try to find out something for him. Of course, they all found that hilarious. Well, at least the senior partner had heard of Google and knew it might be useful, even if he had never actually used it himself (way too complicated). I suspect that this same partner is probably a member of the College of Trial Lawyers and no doubt a big supporter of Senator McCain.
Don’t get me wrong, these trial lawyers are probably all terrific in a court room, and could clean my clock in any jury trial. Just don’t ever ask them to turn on a computer, much less process and review ESI in an economical manner. To them it is just a big nightmare, primarily, I propose, because they are on foreign ground and do not know what they are doing.
The Fellows Analyze Litiation
Here is how these College of Trial Lawyer Fellows analyze the problem with litigation in the Twenty-First Century:
The discovery system is, in fact, broken. Discovery costs far too much and has become an end in itself. As one respondent noted: “The discovery rules in particular are impractical in that they promote full discovery as a value above almost everything else.” Electronic discovery, in particular, clearly needs a serious overhaul. It is described time and time again as a “morass.” Concerning electronic discovery, one respondent stated, “The new rules are a nightmare. The bigger the case, the more the abuse and the bigger the nightmare.”
In particular, 87 percent agree that electronic discovery, in particular, is too costly, and 76 percent agree that electronic discovery issues are not well understood by judges. (sic)
So the blame game begins, and the “new rules” and judges are the prime suspects. In fact, the new rules, if properly understood, are a powerful tool to help us all out of the morass. The other easy target is our underpaid judges. They should fix things for us. On that point the report states:
Judges should take more active control of litigation from the beginning. Where abuses occur, judges are perceived to be less than effective in enforcing the rules. According to one respondent, “Judges need to actively manage each case from the outset to contain costs; nothing else will work.”
I do agree with this point. Judges should be more active, especially to help manage costs, and as I have often pointed out, they should not wimp-out in the face of intentional abusive conduct by counsel. Still, judges need to be educated first, just like the rest of the profession, and given more time to work on each case; otherwise, their active control may well do more harm than good.
Here are some of the more interesting statistics from the survey:
Nearly 60% of Fellows reported having cases that raise electronic discovery issues.” (My Comment: this means that 40% of these distinguished Fellows have never had a case with electronic discovery issues! And yet, this same group, 87%, agree that electronic discovery is too costly.)
Nearly 77% of Fellows say that courts do not understand the difficulties in providing e-discovery;
Over 75% of Fellows agreed that discovery costs, as a share of total litigation costs, have increased disproportionately due to the advent of e-discovery;
71% of Fellows say that the costs of outside vendors have increased the cost of ediscovery without commensurate value to the client;
63% of Fellows say e-discovery is being abused by counsel; and
Less than 30% of Fellows believe that even when properly managed, discovery of electronic records can reduce the costs of discovery.
Candid Thoughts of Trial Lawyers about e-Discovery
Appendix B to the report consists of select quotations from the Fellows who responded to the survey. Many of these quotes pertained to e-discovery and you may find a few of them interesting, if not revealing:
“The new rules on discovery of e-mail will make litigation too expensive.” (I disagree with that one. The new rules do not even mention email. In fact, email discovery has long been too expensive, but it is not because of the rules (except maybe the old rule allowing discovery of irrelevant information, so long as it is reasonably calculated to lead to admissible evidence). It is too expensive because lawyers and judges do not know what they are doing, and do not know how to properly cull and review email, and because clients are disorganized pack-rats. Many of the e-discovery vendors are also misinformed, but often they do know better; they just have no pecuniary interest in aggressive culling. Some may even seek to line their own pockets in inflated discoveries.)
“We have sacrificed the prospect of attainable justice for the many in the interest of finding that one needle in the forest of haystacks.” (I agree with that one. In the field of ESI this attitude arises out of misunderstanding and misapprehension of the staggering volumes of ESI now stored by most pack-rat dominated companies, and the impossibility to find all the needles. Requesting parties and judges need to understand that only reasonable efforts are required, perfection is unattainable, and cost should be the primary factor in determining reasonable proportionality.)
“E-discovery is a morass ─ to quote Justice O’Connor.”
“In many cases the cost of doing e-discovery may run into the millions of dollars (in some cases to each side). The cost of complying with e-discovery has become an impediment in the way to the doors of the Court House.”
“My belief is that the greatest change that could be made is to reduce the scope and expense of discovery. The latest e-discovery adds incredible layers of work at the client’s business and with its staff, as well as the lawyers, and has spawned a new layer of consultants all its own (a very bad sign), if one is looking to speedy and inexpensive, while being fair, justice.”
“The courts need to get a better grip on e-discovery. The expense involved for all concerned in handling the massive amounts of data threatens to swamp the entire system by turning litigation into nothing but an e-discovery donnybrook.” (For my younger readers “donnybrook” means a loud brawl or melee. To my really young readers, its a mosh pit.)
“E-Discovery is so expensive, it could ruin the system.”
“The biggest issue facing litigants today is how to handle e-discovery. It can be incredibly expensive, and costs are not routinely passed on to the requesting party. The rules are trying to address this, but there has to be a better solution with more certainty.”
“The rules on e-discovery are completely out of touch with the costs of such discovery.”
“E-discovery rules are a disaster.”
“E-discovery is crushing the system.”
Trial Lawyers Solution
So now you know what some of the country’s most distinguished trial lawyers really think about e-discovery. As far as I can see from my study of this report, it has not dawned on any of them that they may be part of the problem, or that they need to better inform themselves on the technological issues underlying e-discovery.
The Press Release announcing the interim report and survey explained what steps the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System now plan to take to address these problems:
Analysis of effective alternative civil procedure schemes in the United States and abroad; and
Development of a set of proposed principles that might govern any major revision of the discovery or other provisions of the Federal Rules of Civil Procedure.
My Proposed Addendum to Their Plan
With all due respect to the distinguished Fellows, this plan will not work without including at least two more components.
First, we attorneys need to step out of our own long shadows and recognize that we are part of the problem. We need to admit that most of us are deficient in understanding the new technologies that drive today’s world. As a consequence, we no longer understand the technological media in which our clients operate. We do not understand the evidence crucial to the outcome of most cases. We do not know where to find it, nor how to gather it, nor how to look at it properly when we do. We have delegated too much to e-discovery vendors, some of whom are driven by immediate profit motives, not the best interests of justice and efficient dispute resolution. Simply put, many of us are not competent to practice law in the Twenty-First century where most evidence is digital, not paper. Until we recognize and acknowledge the competency problem, we will never be able to slog our way out of the morass with more committee meetings, rules, and principles.
Second and last, once we step out of our shadow, we need to address the problem with strong educational efforts in both the Bar and academic institutions. The work should begin in law schools. Most today do not even offer courses in discovery, much less electronic discovery. The professors do not find it theoretical or interesting enough to warrant their attention. That is irresponsible. The College of Trial Lawyers is correct to see e-discovery as a real problem, even if they do not yet understand the full dynamics of the problem. The academic colleges need to awaken too, and start to train law students for the advanced technologies that await them in the real world.
The admissions departments of law schools should also take this pressing societal problem into account and recruit technologically sophisticated students. Computer science majors should be given a preference. It is a mistake to fill our law schools with only Political Science, Philosophy, and English majors. Moreover, law schools should start to consider offering dual degrees and collaborate with the Computer Science Departments. At the very least, there should be e-discovery certificate programs for law students. The employability of such graduates would increase dramatically.
Technology is rapidly changing, and if the law is to remain relevant, it must change and adapt just as fast. A lifetime of continuing education and study is needed to maintain competence in today’s world. Lawyers must understand the world in which they live in order to serve their clients effectively. Lincoln learned the new, advanced technologies of his day: railroads. We must do the same to remain relevant.
Trial lawyers especially have to understand the digital information age in which we live. Their job is to investigate and prove the truth of what happened in the past in order to resolve the disputes of the present. The stories of what happened yesterday are all stored in computer networks around the world, waiting on clever lawyers to uncover and reveal the truth.
No one can operate effectively in the court rooms of tomorrow without a good understanding of where the digital evidence is stored, how to retrieve and review it in a forensically sound yet cost effective manner, and how to have it admitted into evidence at trial. These are tricky skills, even for those of us who do e-discovery, and only e-discovery, full time. Most of the Fellows who answered this survey are unlikely to have the time or inclination to study and master these new skills. A lot of the burden will necessarily fall on young lawyers and law students. They have the time, energy, and aptitude. They have grown up in a digital online world. They are the long term solution to this problem. The sooner law schools recognize this, the better.
In the meantime, trial lawyers should accept that specialists in the field of e-discovery are a necessary evil. If an e-discovery specialist knows the field, they can save you money and take you out of the e-discovery morass faster and more reliably than a dozen new rules. The world today is too complex for one man or woman to do it all. In today’s global, interdependent world we all need to work together in teams. If trial counsel does not love and understand technology, they should affiliate with someone who does. When law schools get the message, there will be plenty of new associates available who are ready and able to fill the bill. In the meantime, deal with the consultants and other specialists.
Electronic discovery can be done in a cost effective manner, if you know how. The way out of this morass is learning, and the knowledge and wisdom that eventually comes with it. Study is required by everyone: lawyers, judges, paralegals, technicians, professors, and law students alike. We all need to master technology, especially technologies related to electronic discovery. This, in turn, requires learning to work with Information Technology experts. The alternative is to turn back the clock to a paper world, turn off all of the damn computers and stop sending emails. I know many lawyers out there who might like that. But, since that is not likely to happen (your kids won’t allow it), we need to start understanding all of these high-tech toys, at least well enough to find the evidence they generate and hold, and not break the bank in the process. It can and will be done as soon as we accept responsibility for this problem ourselves, stop blaming it all on the rules and judges, roll up our sleeves, and start learning how it all works.