Spilling the Beans on a Dirty Little Secret of Most Trial Lawyers

In this blog, and the next, I’m going to spill the beans on two dirty little secrets of the legal profession. The first secret relates to trial lawyers, a large group in the tens, maybe hundreds of thousands, that I have been honored to be a part of since 1980. Their secret is already known by many, but only spoken of by a few, usually judges who are accustomed to criticizing our kind.

The second secret, one that I will tell in the next blog, is only known to a few. It comes out of a much smaller group, numbered in the hundreds, the technophiles that specialize in electronic discovery search. I flatter myself by claiming membership in this group since 2006. My audacity derives from my computer technophile roots that go back to my initiatory mainframe days in 1978. Unlike the trial lawyer secret that I will lay bare here today, the search secret for tomorrow is deeply hidden in shadows. In fact, this may well be its first revelation. It will be the first time I have written openly about it, although a few e-discovery friends have heard me speak of it before.

Don’t worry friends and colleagues. I will not name names. But, like the small child seeing the emperor wearing his imaginary clothes, I will speak the truth.

Telling secrets that by their nature prefer to remain hidden, unflattering secrets, is not exactly a way to win friends, but it may be a way to influence people. When unflattering things are brought to light and shine through the shrouds of denial, they have a way of changing by virtue of the attention paid to them. Sometimes the best love, the truest love, is tough love. Sometimes that is the quickest and best way to bring down the unhealthy walls of denial. Know the truth and the truth shall set you free kind of thing. I do not expose these secrets to shame or embarrass my profession. I do so and risk the wrath of some because I care deeply about my profession. Popularity is over-rated anyway. I’d rather be an agent of change and teller of truth.

Happy Thanksgiving

I am grateful for the freedom I enjoy to speak and write controversial things to try to change the law. I am grateful to live in the U.S.A., a country that not only allows free speech, even if unpopular and anti-establishment, but encourages it, and makes it a core constitutional value. Like all lawyers in the U.S., I have sworn an oath to uphold the Constitution, including especially, for me at least, the First Amendment.

I’m also grateful to be in a law firm that has not only heard and tolerated my messages, but hired me because of them — a firm of almost 700 lawyers that has embraced the changes I promote; a firm that has welcomed and begun to implement them as an opportunity for growth, for excellence, for relevance, for justice, and yes, for competitive advantage. This gives me hope to think other firms and lawyers will follow soon, that the outing of these secrets will cause a greater good.

Trial Lawyers Dirty Little Secret

The truth is, the world has changed too fast in the past few decades for most trial lawyers to keep up. As a result, most are incompetent to handle electronic evidence, including discovery of their client’s documents. A majority of trial lawyers are in complete denial of their incompetence. Others admit the painful truth, but just bide their time until retirement. They hope that e-discovery won’t pop up in any of their cases. If and when it does, they see nothing wrong with delegating core lawyer functions to outside vendors. Only a few admit the truth and have the intensity and dedication to do something about it, to put in the hard work to gain personal competence, or, and this is just as good for those who have no aptitude or interest in e-discovery, to bring people into their firm who are competent and then have the wisdom to delegate to them.

The incompetence of most trial lawyers to do discovery is the dirty little secret that almost no one wants to talk about. Certainly the vendors who sponsor most CLE events have no incentive to do so, after all, they profit from this glaring competency gap. Judge Facciola, Craig Ball, me, and a few others like us are the only ones willing to speak up about it. See: E-Discovery Competence is a Fundamental Ethical Challenge Now Faced by the Legal Profession, Chapter 34 of my book Electronic Discovery (West 2010). It is much easier to blame judges or the rules than your friends and colleagues.

Despite this conspiracy of silence, the secret of incompetence is known by all in the trade (although the word incompetent is never used). It is there to be seen by anyone who looks. For instance, a survey of attorneys made by the Federal Judicial Center, Case-Based Civil Rules Survey (2009), found that e-discovery was only discussed in 30% of the 26(f) conferences, which included discussions not to do e-discovery.

It is well-known to all in the profession that lawyers are avoiding electronic discovery in droves, even though all of their clients have computers and store most of their information electronically. They ignore it because they don’t know how to do it. It is like the story of the man looking for his door key underneath the lamp-post on the sidewalk, even though he knows full well that he dropped the key twenty feet away by the front door. He doesn’t look for the key where he dropped it because he can’t see anything there. There is no light there. This little joke now applies to most of the trial lawyers in our profession today. Sad, but true.

This knowledge gap is also the primary cause of most of the undue expense of e-discovery. This is yet another “secret” few are willing to talk about, especially the vendor experts who, once again, profit from the inefficient over-review and excessive productions that now plague the industry. More on that in the revelations of my next blog.

Why So Many Trial Lawyers Are Incompetent to do Discovery

How did this come to pass? Our trial lawyers today are, after all, just as smart, probably smarter, than the many generations of trial lawyers that came before them. They are also just as industrious. So how did the competency gap in discovery come to pass?

Call me an enabler if you will, but I for one do not think it is their fault. There, but for the grace of my quirky hobbyist interest in computers, go I. These are my friends, my fellow trial lawyers. They are a good group. They are learned, perhaps too learned for their own good. They are victims of circumstance, victims of society, of schools and academia. If anything, they are too literate. Law school attracts young men and women who are like that. Our computer phobic trial lawyers of today are the inevitable product of thousands of years of cultural heritage. Yes I said thousands. Their current failings are perfectly understandable in view of the culture in which they grew up. Let me explain.

Too Learned to Deal With the Future Hand Fate Dealt Them

For millennia all writings were in paper. From handwritten scrolls to the printed word, paper is deeply engrained in our culture, in our very soul. The more learned the person, the deeper the engraving is likely to be. For centuries the legal profession has been dependent upon writings, referred to in the law as documents, as the key evidence to resolve disputes. Although testimony by witnesses is often dramatic and important, all trial lawyers know that documentary proof is the real powerhouse in proving cases. See eg: Losey, R. Mathematical Formula for Justice Proves the Importance of ESI in Civil Litigation, Chapter 4 of Electronic Discovery (West 2010).

Since paper writings were the foundation of all literary culture, indeed of all education in the civilized world, the paper form of documentary evidence was well-known and easily mastered by every lawyer and judge. We are, after all, a learned profession, not just some trade. For that reason, and because the number of relevant documents was usually few in number, paper discovery was always a relatively simple task. It was usually delegated to starting lawyers. It worked in yesterday’s world of paper. But that was yesterday. That world is going, or gone.

The paper basis of culture and evidence has all changed in a historical blink of the eye. In just one generation documents have dematerialized. They have transformed into a dizzying array of digital media. For instance, since April 2011, Amazon, the world’s largest bookstore, has been selling more digital books than paper. Miller, C. and Bosman, J., E-Books Outsell Print Books at Amazon, NY Times (5/9/11).

Documents originally created on paper still exist in our society, but they are growing rare. Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, (S.D.N.Y. 2003) (Footnote 5 cites Wendy R. Liebowitz, Digital Discovery Starts to Work, Nat’l L.J., Nov. 4, 2002, at 4, which reports that in 1999, ninety-three percent of all information generated was in digital form). Most of the paper documents we still see are merely printouts of one dimension (the text) of the original electronic information.

The law recognizes this transformation and the Federal Rules of Civil Procedure were amended in 2006 to include electronically stored information (ESI) as information that can be discovered and used as evidence in lawsuits. Rule 34(a)(1) Federal Rules of Civil Procedure (2006). ESI is not specifically defined in the rules. The Rules Committee Commentary explained why: “The wide variety of computer systems currently in use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored information. Rule 34(a)(1) is expansive and includes any type of information that is stored electronically.” Even without specific amendments to rules, all courts today, state and federal, treat ESI as potentially admissible evidence subject to discovery.

Many see the change away from paper writings as a much more profound cultural revolution than that precipitated by Guttenberg, which took centuries to play out, not decades, and still maintained the same paper media.

This rapid transformation is having a profound effect upon the law and lawyers. See for instance the important early essay by George L. Paul and Jason R. Baron, Information Inflation: Can the Legal System Adapt?  13 RICH. J.L. & TECH. 10 (2007). Their “paper” explains how writing co-evolved with civilization over the past 50 centuries or longer, with a slow but steady increase in information as our writing technologies slowly improved. They point out that this all changed about 20 years ago when Mankind invented a totally different form of electronic writing, free from physical confines, that triggered a Big Bang like explosion of a new Universe of virtually unlimited information.

Baron and Paul predicted in 2007 that the legal profession would have to significantly change and adapt new strategies of practice to cope with this information revolution. I predict the same thing. In fact, I write now to try to push this change. How can the rest of the world change and the law not change with it? But change does not come easy to the legal profession, and we are now witnessing a painful, slow, generational shifting process.

The changes in writing and resulting information explosion brought about by rapid advances in computer technology are simply too much, too fast, for most lawyers today to handle. Not only is ESI changing and evolving new into forms every year, but it is now multiplying at an exponential rate that is almost beyond comprehension. See Eg., Rowe Entm’t, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 429 (S.D.N.Y. 2002) (explaining that electronic data is so voluminous because, unlike paper documents, “the costs of storage are virtually nil. Information is retained not because it is expected to be used, but because there is no compelling reason to discard it”), aff’d, 2002 WL 975713 (S.D.N.Y. May 9, 2002); Data, Data Everywhere (The Economist, March 2010). Also see Baron and Losey, E-Discovery: Did You Know?

Law Schools Perpetuate the Problem

The secret known by many, but spoken by few, is that most lawyers today are unfamiliar with ESI and the complex systems that store it. They prefer the familiar paper and alphabetical filing cabinets. Too bad for them that most documentary evidence no longer lives there. You would think that law schools would come to the rescue and train the next generation of lawyers on ESI. Don’t hold your breath on that one. As an adjunct law professor for years at the University of Florida, one of the few schools in the country that teaches e-discovery, I know first hand how far we have to go. I also know that CLEs for post-graduate studies are not much better.

Even though many scholars, jurists, and practitioners recognize the problems created by the inability of most lawyers to keep pace with technology, most law schools still only train students in paper evidence and paper discovery. Students graduate unprepared to handle the ESI where the truth of past events is now stored.  See Eg: William Hamilton, The E-Discovery Crisis: An Immediate Challenge to our Nation’s Law Schools, Chapter 39 of Electronic Discovery (West 2010); Shannon Capone Kirk, Kristin G. Ali, Teach Your Children Well: A Case for Teaching E-Discovery in Law Schools, Chapter 38 of Electronic Discovery (West 2010); Shira Scheindlin, Ralph Losey, E-Discovery and Education, Chapter 33 of Electronic Discovery (West 2010); Ralph Losey, Plato’s Cave: Why most lawyers love paper and hate e-discovery and what this means to the future of legal education, Chapter 32 of Electronic Discovery (West 2010).

More Reasons Lawyers Find It So Hard to Adapt

The profession, including our law schools, is by nature slow to change. This is a conservative profession. The law was designed that way. It was designed to be a stabilizing force in society. The legal profession is slow to change on all fronts, but especially in technology areas. There are few Steve Job’s hippie-tech types in the law, much less Wozniak types. Most lawyers and judges are not technologically sophisticated. This reinforces their resistance to computer-based discovery. Even younger lawyers, who may have had long exposure to computers, are usually not too interested in them. Like their more senior attorneys, they are typically straight-laced liberal arts majors, and only rarely have a science or engineering background, much less a truly creative background.

But there is another less obvious reason that should also be understood. When documents first began to be created electronically in the eighties and nineties, most were essentially word-processing documents. Moreover, most the key electronic evidence of any kind was printed out and existed in paper form too. Thus even though the original documents were electronic, they could still be found and presented as evidence using paper-based models.

This factor was well-known and relied upon for years by trial lawyers resisting e-discovery. It was not necessary. You did not have to do it to adequately represent your clients. The reliance was acceptable in the 1990s, where the observation was true for most electronic evidence. It also survived with some efficacy in the early 2000s. But now, in the second decade of the Twenty First Century, this is more myth than fact. The diversity of writings has expanded tremendously, especially Internet-based writings. Also, the habits of witness have changed, such that they no longer automatically print out electronic writings and file them away as paper. Yet, many still hold onto this notion and think that there is no harm to their clients by avoidance of e-discovery. They may even think they are helping their clients by avoiding unnecessary expenses.

Today critical evidence is more often than not never printed out. It exists only as email, text messages, spreadsheets, PowerPoints, Facebooks, Tweets, and the like. So the efficacy of paper only discovery is rapidly disappearing. Attorneys who proceed without electronic discovery today will likely miss critical evidence. This situation worsens as the habits of witnesses change every year, and fewer and fewer relevant documents are printed out where paper lawyers can find them. They remain hidden in electronic form.

Conclusion

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.

Yes, you hear what I am saying. Competition is a powerful motivator too. Those who refuse to change, and think they are safe in avoidance of e-discovery among their cronies — well, they may soon be in for a rude awakening. They may be fired. My Socratic method of bringing unwelcome news is actually far kinder than the ways of his student, Alexander. Twenty-five hundred years ago, when paper documents were still new, Alexander was offered the world. He conquered it ruthlessly. His much kinder, but oft talking and frequently offensive elder who taught and paved the way for him, was offered poison wine. He drank it fearlessly with understanding beyond our ken.

I know some less enlightened firms don’t like my message and wish that e-discovery would just go away. They will be crushed with time and the next generation of lawyers, of that I have no doubt. They are a victim of the paper culture that is vanishing before their eyes. I can only yell about the shadows of the flames, not make them see the sun.

There is yet another, even lesser known reason for the survival of the paper-based systems into the Twenty First Century, one which I have not yet mentioned here. This must be understood if we are to design new systems of search and retrieval to replace the old paper models. It has to do with the limitations of human understanding and the art of legal persuasion. But that, my friends, opens the door to the next dirty secret involving e-discovery’s elite world of search experts. That will be my next blog.

In the meantime, stay motivated, stay crazy, then you can change the world. It is, after all, merely a play of shadows on someone else’s dogma wall. You create your own reality. Socrates said it, so did Jobs, so did many others. Keep the faith.