Plato’s Cave: why most lawyers love paper and hate e-discovery and what this means to the future of legal education

The Matrix - modern example of Plato's CaveThe most famous allegory in all of Western Civilization is that of Plato’s Cave. This conceptual image is based on deep insights into the human condition. For millennium this analogy has allowed people to better understand each other and the world in which they live. As proof of its eternal veracity, I offer it as an explanation for why most lawyers today love paper and hate electronic discovery. The Socratic approach also points to a way out of the legal profession’s current crises of e-discovery competence; it suggests that a new form of education is imperative. The alternative may well be radical inter-generational disruptions and discontinuities in the practice of law.

Plato’s Cave

First a refresher on Plato’s Analogy of the Cave. It is found at the beginning of book seven on The Republic, which was written by Plato in 380 BC.  It takes the form of a dialogue between Socrates and Plato’s brother, Glaucon, concerning education. Socrates tells the story of prisoners who have been held captive in a cave all of their lives. They are chained so that they can only see shadows on the wall of people walking on a path behind them in front of  a fire. They can not directly see the people or the things that they carry. They can only see their shadows cast on the cave wall. That is all they have know all of their life and so they mistake the shadows for the people and things themselves. They are totally absorbed by the shadows and have become quite adept at interpreting what they supposedly mean. Here is a common graphic illustration of the cave set up.

Platos cave from The Republic

One day a prisoner is freed of his chains and taken out of the cave and dragged up into the light. After a long period of adjustment he is able to see in the new light filled world and discover that he had been mistaking shadows for reality. He returns to tell his prisoner friends, but has trouble adjusting to the dark and shadows. He cannot still see the fine distinctions that the prisoners make out in the flickering forms. They still cannot turn around or leave the cave. They still see only shadows and know nothing else. They do not believe their returning friend. He does not see the shadows as they do. They think he is quite mad. In fact, they hate him for his better-than-thou stories and would kill him if they could. To refresh your memory with more of the details of the story of Plato’s cave, watch this cool clay animation version. I am sure Socrates would have approved.

Want an even more detailed refresher of the story of Plato’s Cave? Then watch this longer video, featuring a reading of a translation of this segment of The Republic dialogue. Note how in today’s world the cave shadows have been replaced by television images and other mass media.

By the way, The Matrix movie is the latest popular cultural expression of this perennial idea. Check out this video which spells that out for you.

Now read the original words of Plato. After telling the story, Socrates explains to young Glaucon the significance of the analogy of the cave to life and education.

And again, do you think it at all strange, said I, if a man returning from divine contemplations to the petty miseries of men cuts a sorry figure and appears most ridiculous, if, while still blinking through the gloom, and before he has become sufficiently accustomed to the environing darkness, he is compelled in courtrooms or elsewhere to contend about the shadows of justice or the images that cast the shadows and to wrangle in debate about the notions of these things in the minds of those who have never seen justice itself?

It would by by no means strange, he said.  …

Then, if this is true, our view of these matters must be this, that education is not in reality what some people proclaim it to be in their professions. What they aver is that they can put true knowledge into a soul that does not possess it, as if they were inserting vision into blind eyes.

They do indeed, he said.

SocratesBut our present argument indicates, said I, that the true analogy for this indwelling power in the soul and the instrument whereby each of us apprehends is that of an eye that could not be converted to the light from the darkness except by turning the whole body. Even so this organ of knowledge must be turned around from the world of becoming together with the entire soul, like the scene-shifting periactus in the theatre, until the soul is able to endure the contemplation of essence and the brightest region of being. And this, we say, is the good, do we not?

Yes.

Of this very thing, then, I said, there might be an art, an art of the speediest and most effective shifting or conversion of the soul, not an art of producing vision in it, but on the assumption that it possesses vision but does not rightly direct it and does not look where it should, an art of bringing this about.

Yes, that seems likely, he said.

This quote is from my favorite translation from the ancient Greek by Edith Hamilton and Hunington Cairns, published by Princeton University Press as part of the Bollingen Series.

Paper Lawyers

Lawyers today, much like the prisoners of Plato’s cave, love paper because that is all they have ever known. They grow up in a paper world. They learn how to read on paper. They study paper books. They go to law schools where they learn that legal documents are made of paper. Their professors are just like them. They surround themselves with great piles of paper literature and paper case law. They teach using paper books and paper flip charts and require students to write papers. When taking evidence and trial classes, law students are taught with paper documents, shown how to test the authenticity of paper records and how to have paper admitted into evidence.

paper doll cutouts

After school, older lawyers give them an endless supply of extra long paper, called legal pads, and do their best to keep them up to their neck in paper work. They are shown how to generate papers, copy papers, pile papers, file papers, notarize papers, shuffle papers, staple papers, clip papers, highlight papers, redact papers, watermark papers, and even add paper stickums to paper. They also learn how to keep paper calendars, speed-read large files full of papers, spot check papers, and carefully proof-read papers till they are perfect.

milton waddams

Some lawyers cover all of the furniture in their office with papers. A few even go so far as to put piles of paper on the floor creating an obstacle course to and from their desk, which is also entirely covered with papers. Papers make lawyers feel safe and secure. They provide status and prestige as a demonstration of productivity. They like to frame papers and put them on their walls. Some lawyers learn how to fax papers back and forth to each other. Some even learn how to email letters to each other and print out important ones to make them real.

Dunder Mifflin

Most judges and courts love paper too. Lawyers are required to serve papers on parties and opposing counsel, file papers with the court, and make paper trial exhibits. No witness exam is complete without marking papers, handing them to the clerk, opposing counsel, the judge, and then the witness. Some lawyers even blow up the special papers that they like to make them really, really big papers that everyone can easily see.

The trial lawyers are especially good with papers. They learn to chase paper trails, find tons of paper in other people’s filing cabinets, copy the paper, stamp the paper, produce the paper, and then explain the papers to a judge and jury. Some even learn advanced paper techniques such as Bates stamping papers to bring out their hidden order.

Lawyers live their entire life in a paper world. They start each day by reading a newspaper. When not doing paper work, they read paper books and magazines for fun. It is all paper, all the time, at work and at home. Lawyers are very adept at interpreting paper. They are the experts of paper forms. No paper is too lengthy or complex for them to figure out. Lawyers can and do stare at papers all day long

Just like the prisoners in Plato’s Cave, they do not know that their beloved papers are shadows, mere print outs of a greater electronic reality.

Electric Lawyers

Almost all of the papers that lawyers love come from computers. There, in the electronic realm, they live in their full native glory.  There, and only there, is all of their information intact, their metadata, interconnectedness, and search-ability. None of this information ever makes it to the printer. The paper printouts are just two dimensional depictions of parts of the original ESI, in the same way that shadows are just two dimensional depictions of the original 3D objects. Papers are pale substitutes for the original electronic creations.

Just as the prisoners in Plato’s cave saw only the shadows of the people and things that happened to pass on the path behind them, so too the lawyers see only the papers that happened to have passed through a printer. They thereby miss most of the information world. In truth, only a very, very small percentage of information is ever printed out. In fact, almost all businesses records today only exist in electronic form and are never reduced to paper. The world of electronic information is far larger, more complex, interconnected, and beautiful than the paper lawyers could ever imagine.

Some lawyers manage to escape from their paper prisons, embrace the new world of electronically stored information, and sing the body electric. The transition from the paper shadows to full ESI is not easy. At first, most are overwhelmed by the sheer complexity and volume of the electronic source behind the paper shadows they knew so well. They are dazed and confused by the full magnitude of the information. It takes them time to grow acclimated to the new metadata they can now perceive. It takes them time to understand the interconnectedness of all digital information and grasp how it can be instantly searched and processed. But when they do, a whole new world of languages and skills opens up to them. Slowly they become masters of the electronic world that most of their clients take for granted. They learn to speak in new technical languages and start to understand how the world around them really operates. They stop printing out their emails and start using spreadsheets. They learn to hack and hash. They enter the Internet unafraid and rejoice in the near infinite webwork of html. They are reborn in cyberspace. They become electric lawyers.

matrix neo

Just as in Plato’s story, some of the electric lawyers feel compassion for their paper brothers. They decide  to return to the cave to try to practice law in the shadows again and share their new-found knowledge. At first, their eyes cannot adjust. They cannot remember all of the false distinctions made by those who do not grasp that paper is a mere printout of a larger reality. They speak in a language that the paper lawyers call techno-talk gibberish or computerese. They are not understood. Indeed, they are laughed at as nerds and geeks. When they first began to return in the early 1980s, the ones Ken Withers calls the protodigitals, the paper lawyers saw only their keyboards. In their darkness they understood them as typewriters and ridiculed the computer lawyers as secretaries.

The tales by electric lawyers of a vast new world of digital information, of better and faster, are misunderstood and ridiculed. The paper lawyers do not believe their wild stories of a so-called information explosion. They ignore the need to include requests for ESI in discovery. They reject the new hash stamps of digital information and stubbornly cling to their Bates stamps. The papers lawyers stick to the paper discovery. If they even bother to request email at all, they take the paper print-outs as if they alone were real. They do not understand metadata. It is invisible to them. So they refuse to produce it, whatever it is.

Just as in Plato’s story, the paper prisoners feel threatened by their electric brothers and sisters who speak a strange new language and live in a different world. They counter-attack in many ways. For instance, in the 1990s they persecuted electric lawyers who were the first to the Internet and accused them of broadcasting television ads without permission. One electric lawyer was even forced to submit his entire website to his state Bar association for approval as a television ad. His attempts to explain the world outside of the paper cave were futile. They saw the web show for themselves on the televisions sitting on their secretaries’ desks, which were actually computer monitors, but they did not understand the difference. The protodigital lawyer complied and printed out his whole website, disclaimers and all, consisting of thousands of pages of paper when so downgraded into two dimensions. Once the Bar governors saw the television add in the paper they loved and understood, they quibbled with a few terms, required a couple of revisions, and then approved his website, floridalawfirm.com, as a TV broadcast. The channel still remains, although the show has changed many times over the years.

Ostrich with Head in SandIn the Twenty First Century the paper lawyers continue to react as Plato predicted, albeit with more sophistication than before. They now spread rumors that electronic discovery is too expensive and will destroy our system of justice if not stopped. Other times they dismiss e-discovery as a mere fad that will pass. It is as if they really believed that people will soon abandon technology and return to the word of phone calls, ink, and parchment that they know and love. Flat screen computer monitors are starting to appear on cave walls everywhere, but they do not believe them. They live in denial.

When paper lawyers of today speak of computers at all, they speak only of computer viruses and threats to security. They attempt to clamp down on all employee computer use. They limit permissible software to ancient versions of Microsoft Office programs. They also try to make most of the Internet off-limits to all employees. They still pretend like only their clients’ paper records are real and only these papers contain information valuable for law suits. The only reason most clients have not left them years ago is that the senior in-house counsel are detached from the rest of the technologically sophisticated segments of the company. The senior in-house counsel are paper lawyers too and so they protect their own.

Ostrich head - careful, they bite

Some trial attorneys, with or without the permission of their clients, go so far as to enter into secret agreements with each other to ignore the alleged larger world outside the cave. They agree to look only at paper. Their often skeptical clients go along, intimidated by the rumors of runaway costs. Indeed, when paper lawyers dabble with ESI that they cannot ignore, they try to catch the fire through its shadows. That leads to mistakes, do overs, and wasteful expenses. It also often leads to sanctions and what appears to be unethical behavior. An ostrich can be mean when their head is removed from the sand against their will and they are forced to confront their own shadow.

Bray & Gillespie

A new order by Magistrate Judge Karla R. Spaulding illustrates this later point perfectly. Bray & Gillespie Management LLC v. Lexington Ins. Co. 2009 WL 2407754 (M.D.Fla. August 3, 2009). Severe sanctions were entered against the plaintiff and its lawyers for not producing hotel guest attendance records. The plaintiff’s paper lawyers only looked for these records in warehouses full of papers. When they found them in segments, they only made selective disclosures of what they found.  They were caught and sanctioned. The whole thing could have been avoided by simply producing the electronic guest records that were, of course, at all times readily available in the plaintiff’s computer system. They did not even try to look there, even though a native production was specifically requested and ordered by the court.

As an excuse plaintiff had a legal secretary for in-house counsel file an affidavit where she said it was impossible to download or export the data from their software, IQWare. She actually swore that the only way to get the information was to print it out onto paper. This is of course absurd, as a ten second search shows that their software is just a customized MS SQL database. It would have been easy to copy the database and turn it over, but the lawyers and their assistants only understood paper. As a result, they will now almost certainly lose the case. Judge Spaulding has entered a report and recommendation that plaintiff’s complaint be dismissed with prejudice and fees taxed against the plaintiff, now in bankruptcy, and its lawyers, not in bankruptcy, for their intentional, bad faith withholding of evidence and defiance of court orders requiring production of electronic evidence.

Some Electric Lawyers Stay and Some Go

Some electric lawyers grow frustrated with paper law and disputes like we see in Bray & Gillespie. They leave the cave and the practice of law entirely. They go to work for high-tech companies, e-discovery vendors, or become consultants, and the like. They devise ways to make ESI accessible to lawyers by making ESI seem like paper. They learn to convert electronic information to pseudo-paper images called TIFF and JPEG files. They keep most of the metadata in separate load files and try to convince the paper lawyers to use these image files instead of the paper print-outs. They enjoy some success and whole industries have been started devoted to the creation of a netherworld of image files between ESI and paper. Special software has been devised to allow the paper lawyers to review the electronic files on computers as if they were paper. This kind of TIFF review is expensive, but it allows paper lawyers many of the comforts of the cave. They can keep their familiar Bates stamp and can easily make print-outs of any image files they see for use at paper trials.

electric headOther electric lawyers refuse to leave their firms, they refuse to go solo or join the world of vendors and consultants. They love the law firm culture for the same reason that paper lawyers love paper. It is all they have ever known. They remain in the practice of law and learn to hide the light and play the shadow games. They go along with the vendors go-between world of electronic TIFF image files. They stop crusading about the wonders of full digital reality and thus escape the ire of their partners, but they never give up on trying to subtly persuade them. Some are successful. It is a slow process. More and more lawyers free themselves from their paper chains. The electric lawyers learn to sidestep the reactionary rules and deal directly with the clients who understand. They leave the cave as needed to maintain their sanity.  They find sanctuary in their homes, families, and friends that are entirely out-of-cave and in the light.

Some electric lawyers are no longer satisfied with the compromise solution of hot-shadow TIFFs. They insist that the paper lawyers leave the cave entirely and deal directly with the original native forms. The clients of the paper lawyers are also not satisfied because the nether world of image review is expensive and they are asked to pay the bills. Some of the judges are also becoming dissatisfied with such pretend paper discovery. Yes, many judges have also been able to find their way out of the cave and see the light of full ESI. Once they return, they no longer tolerate the paper lawyers’ pretenses. They grow weary of the mistakes, hide-the-metadata blunders, last minute discovery requests, and the many sanctions motions that happen whenever paper lawyers play with the fire of ESI.

Education by Changing Direction, Not Inserting Vision

Although many lawyers have now escaped, the vast majority of the legal profession still live in the cave. Most lawyers are not able to keep up with technology, they are unable to deal with the electronic evidence underlying most lawsuits. They cannot adequately preserve it, collect it, process it, search it, or present it. In short, they cannot conduct e-discovery or comply with the new rules of procedure governing e-discovery because they do not know how. They only know and understand paper discovery and paper evidence. They are blind to the dynamics of electronic information.

If Plato’s theories of education are correct, this knowledge cannot simply be transmitted to them. There is no lecture or CLE program brilliant enough to insert vision into those habituated by a lifetime of paper. The mind is not a tabula rasa to be written upon by subject matter experts, especially by the time a person is an adult. As Plato said, learning requires “turning the whole body.” Lawyers must leave the caves, stop staring at the paper shadows, and make a change of direction. Lawyers must enter cyberspace and become familiar with computers and software of all kinds.  Then, and only then, will learned lectures, over time, be effective.

seeing new worlds

The Socratic process of learning by changing direction and action has already begun. Many lawyers and paralegals today are ready to change and leave the cave. The message has gotten through and they know that paper is only a small part of reality. Most lawyers already have a computer on their desk and use email throughout the day. They are ready to escape the paper chains.

All that they need now is an effective education that facilities the process of a new direction. We cannot use paper to awaken people from a paper induced trance. By logic only a cyberspace approach to education will be effective. Our current brick and mortar approach to e-discovery education is conceptually flawed. Online education is the answer. As Marshall McLuhan said: “The medium is the message.”

Not just any online education of course. It has to be good, it has to be effective. For online education to work, to turn people around in the Socratic sense, it needs to be interactive, hands on, creative, and include dialogues and community. It needs to be a high quality art form.; in Plato’s words: “an art of the speediest and most effective shifting or conversion of the soul.” Of course, I do not mean anything religious by this, but I do mean a total transformation of perception, attitude, thinking, and action.

This new education will not come from law schools, they are tied up by paper bound professors. It will come from private companies that lead in technology. It needs to come soon, because society will not wait on the paper lawyers much longer.

Conclusion

Some of the protodigitals in all lines of work raised families and taught their children to read on computers, not paper. Unlike all of their friends who were raised by paper parents, they learned about the world by computers and other digital media. They grew up with computers around them at all times. These children of protodigitals are the postdigital generation. Some of these second generation nerds are starting to graduate from law schools now.

Born into an all electric world, with electric parents, they have never known paper blinders. They see the shadows for the printouts that they are. They grew up using new software programs and computer games. They have blinding speed on the keyboard. Many now have an innate mastery of all software. If it plugs in, or has a battery, they understand it. The Internet is their playground. The information explosion and non-stop technology changes are their friends.

matrix kid bends spoon with his mind

That is all they have known their entire lives. They do not read the newspaper. They do not particularly like paper, they like pixels. The postdigitals write with paper as a novelty, the way their parents first used a computer.

Electronic discovery comes easy and natural to these second generation digitals. The protodigital lawyers, protodigital judges, and technology clients are their friends. The future of the law is in the hands of these postdigitals. They will serve the needs of the technology companies and people of today and tomorrow.

The only question now is whether the new education that the rest of the profession needs will come quickly enough. If not, the vast majority of the legal profession may be stuck in their caves while the world passes them by. They need help now to get out and be able to compete with the second generation digitals.

If not, there is likely to be a sudden shift in fortunes unlike the profession has ever seen before. The law firm rankings are likely to change rapidly and permanently over the next ten years. Moreover, once the winds of change become obvious, law firms of the future will be forced to put the paper dinosaurs out to pasture well before their prime. That will be the only way they can survive, the only way to try to regain their standing. Early retirement may become mandatory, especially for trial lawyers, as they are no longer able to understand what is really going on. The information in dispute may simply be beyond their ken.

Clarence Darrow and William Jennings Bryan

The postdigitals are not tied by bonds of affection to the prisoners left behind in the same way that the protodigitals are. The postdigitals will carry the profession forward into the light of new technology and information, with or without the paper prisoners. The businesses and public that the profession serves will see to that. So too will the protodigital lawyers and judges.

Without a new kind of education, those still bound in the caves by paper chains may simply be left behind. Even if they want to get out, and I think many now do, they may be unable to. Even if they get out, they may be unable to function effectively. They may be overwhelmed by the volume and complexity of it all. No matter what their age, the paper bound lawyers may become irrelevant before their time. They may simply fade away along with the newspapers they love.

That would be a shame, for they still have much to offer the future of our system of justice. I suspect that such a radical discontinuity would not be healthy. But, it may be inevitable. One way or another, radical change will come because the law must keep up with the society it serves.

19 Responses to Plato’s Cave: why most lawyers love paper and hate e-discovery and what this means to the future of legal education

  1. Jim says:

    Great rant, as usual. I wish I were as optimistic about the current and future generations of attorneys. Many of the young lawyers I know see the computer as little more than a typewriter on which one can also play games and communicate socially. This is not necessarily their fault, for they have never been required to learn anything more. The same is true of undergraduate and even high school students–they are asked and expected to use the computer superficially (“Present your report using PowerPoint.”) without being given any training whatsover as to what they are creating, or how to create it effectively.

    Thus, I’m afraid merely modifying the mode of delivery of CLE is no more effective than painting the cave wall upon which the shadows are cast. What needs to change is the substance of education to require students to learn how electronic data is created, stored, and communicated. That needs to begin far earlier than post-professionally. The main reason it hasn’t, as you note, is that as limited as the knowledge of the youngsters is, the “elders” doing the teaching know far less, and have neither incentive nor inclination to learn more.

  2. Craig Ball says:

    Hi Ralph:

    I like this post very much. It’s such an inspired mix of the Platonic and the popular. Great work. I tend to agree with the prior comment about the danger of assuming the younger post-digital generation better assimilate electronic discovery. Sure, they are more wired, but they are like their Harry Potter heroes. They better appreciate how to use magic, but they don’t understand it any better than their elders.

    It’s risky to assume that because younger lawyers grew up with computers, cell phones and iPods that they are better able to craft a sound preservation or are significantly more adept at searching ESI.

    I also don’t agree that “online education is the answer.” It’s an important tool that will help, but the answer lies deeper than simply employing a different delivery system for education. We need to first gain consensus on what needs to be taught and when. You’re playing and will continue to play an important role in that process. Regards!

  3. Ralph Losey says:

    Reply to both Jim and Craig –

    First thanks for the comments. I need to clarify two things I said.

    I didn’t say all children, I said all children of protodigital parents. Big difference. I see it in law school classes and in my grown children’s friends. I will edit the blog to make that clearer because I don’t disagree with your comments, predicated as they are on the assumption that I meant postdigitals to be an age group. I do not. There are plenty of paper people and protodigitals of all ages, even teenagers. But until just recently there were no children of protodigitals. They are just starting to come out now so look out. They are, however, still pretty rare, just as the first protodigials were pretty rare. You will know them when you meet them. Of course, they still need training. But they learn very, very fast.

    Second, regarding the objections to online education as the answer. Remember that the medium is the message. Of course, just because an education is online does not mean it is good. In my view, for online education to work, to turn people around in the Socratic sense, it needs to be interactive, hands on, creative, and include dialogues and community. That is why your comments are so appreciated. Please keep them coming. Perhaps you have other specific suggestions as to what an ideal education would include, online or otherwise?

    • Jim says:

      Thanks for the kind reception you gave my comments. Your concluding question is huge in scope, so my response necessarily only scratches the surface.

      I first take the liberty of rephrasing the question slightly: How should education change to prepare more fully attorneys to deal with modern technological issues? To be sure, attorneys like you, Craig, and others have been leaders in opening the profession’s collective eyes to the issues that technological change continues to bring. That effort has recently made great strides particularly at the law school curriculum level. But I sense that your article reflects a certain frustration that we are not only swimming upstream, but also that the current’s speed is increasing.

      Thus the question remains. I focus on three aspects: a) what should lawyers (or potential lawyers) be taught? b) when should it be taught? and c) how should it be taught?

      WHAT. I firmly believe that it is essential for attorneys (and yes, judges, too) to have a basic understanding of the science of technology as it pertains to ESI. ESI is already the predominant method of communication by both clients and attorneys, and becoming more prevalent every day. To be able to deal intelligently with the legal issues surrounding ESI, an attorney should know, at a minimum, the functioning of basic email/calendar (e.g., Outlook) and word processing software; their online equivalents (e.g., gmail, Google Docs), and the relationship between the electronic data used (and metadata created) by those programs and the pixels we see on a display or cause to be printed on a piece of paper.

      WHEN. Perhaps the time has come to acknowledge that admission to law school should require this basic level of knowledge. I realize this will be sacrilege to some who extol the fact that the LSAT tests “reasoning ability” and not knowledge, and that an undergraduate’s choice of major does not matter. But the truth is that one cannot “reason” one’s way to understanding metadata and hash values. If admission to medical school requires a basic understanding of biology, why shouldn’t admission to law school require the same of ESI? The issues extend across most if not all fields of law–not just civil and criminal litigation.

      As a corollary, I also contend that law school is too late to teach this knowledge. Rather, law school should be the place where students learn the procedures for putting that knowledge to use, such as the “meet and confer” conference. In that sense, this issue is analogous to legal writing. The purpose of legal writing class in law school is to teach legal writing mechanics–the memo, the brief, case exposition, analysis, etc. It does not, and cannot, or at least should not be expected to, teach rhetoric and grammar. That knowledge is (often unjustifiably) assumed, but it is at least tested for in the LSAT.

      Of course, even if the LSAT could be instantly changed, we would still need to address the needs of practicing lawyers (and judges). To do that, I suggest that more is needed than attending a CLE seminar where all the recent ESI orders and opinions are solemnly discussed. That is simply not how ESI is learned. Attorneys who wish to practice in federal court should be required to demonstrate a minimum competency in ESI, just as they must do in evidence and procedure.

      HOW. As I indicated in my initial response, I don’t think it’s terribly important whether this learning takes place using computers or paper. Regardless, and as I indicated above, I think that passively sitting listening to a panel of attorneys swap ESI war stories is NOT the way to go. As a slight aside, I do think it’s great that technology now allows for a much greater selection of online CLE courses, but it never ceases to amaze me how many of those courses make zero use of technology (other than recording them of course) to enhance learning–no graphics, no interaction, nothing.

      Those are my thoughts–and as unlikely as their implementation may be, I firmly believe that the ever-accelerating pace of our technological revolution requires us to think about preparing people to be competent lawyers in very new ways.

  4. Tim Thames says:

    Thanks – great article!

  5. William Kellermann says:

    An interesting rant, and fun to read, but still misses the mark.

    The great flaw of Plato and Socrates, was their limited understanding of physics. Everything we see is in fact a reflection – the energy that is not absorbed by the physicality we are viewing. The shadows are in one sense more real than the real things. All of which serves as a distraction.

    Substituting one medium to express information (digital) for another (paper) and focusing on that medium is leading the student in the wrong direction. It is the information that matters. How it was held matters too, somewhat, but not as much as most people think most of the time. This is the great disservice to the ‘eDisco’ world to date.

    In his LTNY Day 3 keynote, Judge Facciola questioned why lawyers do not develop facility with electronic discovery at a normal rate – expressed by a normal curve. The answer is simple: most people, lawyers included, use digital information and the tools to express it with zero understanding of how it works. Our focus on capturing .tmp files with metadata intact, when the witness or litigant had zero knowledge they are there or what they are for is what is driving up the cost of electronic discovery. Teaching more lawyers to do that won’t help.

    If paper and it’s analog was unnecessary in the short term, HP, Epson, Brother and Lexmark would all be out of business. The amount of paper scanned to JPG in the business evidence stream points to more paper-like electronic evidence in the future, not less.

    Teaching lawyers to focus on the information and giving them a reasonable way to ‘fix’ it as evidence is the key. Teaching by every means possible – classrooms, books, webinars and blogs only serves to accelerate the necessary change.

    • Ralph Losey says:

      Thanks for the comments. I agree with much of what you say, including teaching by every means possible (to me it is a matter of emphasis), and what is I think your central point, that it is the information that matters. Of course, I agree with that. But one of my points is that the medium for transmission both distorts and filters the information, and per Marshall McLuhan, the medium itself is part of the message.

      Sure, as you say shadows contain some information, but not as much as seeing the original directly. Of course, this is all just an analogy so I don’t think physics argument are relevant. I don’t think the limited scientific understanding of Plato and Aristotle (and pretty much everyone else prior to the Twentieth Century), creates a flaw in their ideas. The central idea here has nothing to do with the true nature of shadows, etc. It has to do with learning and the mind. The debate addressed here by Plato continues in the modern world, still as unresolved as ever. In science we see it primarily in the field of biology, as the debate between environmental and genetic. But really his ideas are more sophisticated than that simple duality, and will, I predict, still be influential long after the current theories of physics and biology are rendered obsolete.

      As to your comment on paper and business, I can only think of the great Dunder Mifflin corporation. Do you recall The Office scene in the business school class with the theme music? Long term it does not look good for paper based businesses.

  6. A creative delivery of an important message – I enjoyed reading it! As a recent law school graduate I’d like to add that although there remains plenty of room for development, there are, thankfully, several encouraging signs to be seen.

    Over the course of a few short years we have seen electronics in the law school classrooms develop from the simple use of Microsoft products to a basket of electronic technologies including (among others) mandatory use of virtual classroom forums, a far greater focus given to the intricacies of web-based legal research than that given to paper, the manipulation of various file types and software platforms as the school experimented with a line-up of evolving exam software providers, and, ultimately, a computer-based bar exam with web-based submission.

    Beyond the brick and mortar, we’ve seen a mushrooming growth of CLE offerings on point in our Google Alerts and RSS feeds, coming from more and more bar associations, law firms and private institutions. Likewise, more and more firms can be found advertising their apparent expertise in this field. This evolution of the practice of law clearly means that there are opportunities to be grabbed, and the entrepreneurial nature of our market ensures that, like it or not, more and more qualified people are jumping aboard and taking the profession along with them. This reflects the point you made in speaking of postdigitals.

    One point in your article made me pause for a double-take: “…TIFF review is expensive, but it allows paper lawyers many of the comforts of the cave.” I cannot argue against the fact that attorney review of ESI is expensive. Yet I’d suggest that the ability to streamline massive volumes of data of varying file formats into a single review platform, as can be seen in TIFF review, has so often been able to shave significant time (and significant dollars) from attorney review – the most expensive part of eDiscovery.

  7. Joel Wuesthoff says:

    Great article Ralph (and I also appreciated all the comments from this group)

    The key, like anything, demands practice, and active practice, not just the generally passive listening that comes from CLE’s and other instruments of training.

    As many of the commentators here have done, I’ve trained thousands of lawyers in ediscovery, but until they actually get slapped around dealing with the minutia of ediscovery, they may only see the big picture.

    As pure anecdotal feedback, those young digital kids can be equally challenged in dealing with their devices in the context of litigation. I’ve been teaching a law school electronic discovery and forensics course since 2006, and until the final class comes about, its all theory. The final class is always a simulated Meet & Confer with a fact pattern, and I don’t think the students truly “get it” until they have to sit in front of me (the Special Master), and across from their adversary, and negotiate preservation, production, and privilege.

    I don’t have anywhere near the talent Ralph has in tracing the historical roots of this issue, but perhaps we need a little something called Socratic 2.0, a hybrid model of legal education which blends old and new.

    Thanks Ralph.

  8. Seth Row says:

    One of the best posts + comment threads I’ve read in awhile on this topic. As an e-discovery educator (a few times a year) I have experienced first-hand the difficulties everyone here has mentioned. I’ve found that the mock meet-and-confer has produced the best results in stimulating discussion and fostering a hunger for more learning from my audiences.

    Thanks Ralph, and comment authors.

  9. Thanxs for posting this extremely interesting article.

  10. Ralph, the article is very effective at describing the evolutionary factors that have contributed to a majority of paper oriented practitioners and the emerging band of electric attorneys.

    Both Craig’s and Jim’s thoughtful comments contribute to a most compelling dialogue about possible next steps in addressing viable solutions for e-discovery education. Having been an active speaker and CLE instructor for the past six years, I have seen first hand a heightened interest amongst paper attorneys to learn more about the digital world and e-discovery. But as we all know, it requires a far greater investment in time than a couple of hours at a conference.

  11. […] originals, they are just printouts of part of the content of electronic records, pale shadows on Plato’s cave. Very few paper Records nowadays are created by hand, by pen or pencil on paper. The estimates I […]

  12. […] second outing this month as an authority on e-discovery – Ralph Losey’s article Plato’s Cave: why most lawyers love paper and hate e-discovery and what this means to the future of legal education  should be read by anyone interested in this […]

  13. […] working in a market where people send you e-mails like that, especially when recent articles by Ralph Losey and by me have drawn on Plato for […]

  14. […] borrow the summary of the basic facts from Ralph Losey’s Plato’s Cave article (you will find the relevant section just south of the angry ostrich and west of the last musical […]

  15. Great article, thanks for the share. Blog bookmarked 🙂

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