The-times-they-are-a-changin’ is a feeble excuse for disregard of duty

The-times-they-are-a-changin’ is a feeble excuse for disregard of duty. Justice Antonin Gregory Scalia Concurring Opinion in City of Ontario, California v. Quon, 560 U. S. _ (June 17, 2010).

Justice Scalia may not be one of your favorite judges, but in this one line in Quon he sums up the core problem with the law today. Not surprising, he does so by borrowing from the unacknowledged poet laureate of our Age, Robert Allen Zimmerman (a/k/a Bob Dylan). Here is the context of this quote in this conucrring opinion to Quon:

Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication, ante, at 10, that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)—or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions—is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.

I agree with Justice Scalia (I cannot believe I am writing this). The Quon decision is opaque and merely case-specific. It is of little value to attorneys and employers. We are  still in the dark as to what we can and cannot do in this area. So too are the judges who must decide electronic privacy disputes. But the profundity of Scalia’s comment goes beyond this particular case. I do not know if he realizes this or not (I am beginning to think he does), but the whole profession, not just the Supreme Court, is shirking its traditional duties simply because new technologies are sometimes difficult.

The Lag Between Law and the Rest of Society is Dangerous

Lawyers and judges are not keeping up with technology and this failure is endangering our whole profession, indeed our whole way of life. If we do not keep up, if we disregard our duty of competence and diligence just because it is hard, just because the-times-they-are-a-changin’ so fast, then we fail as lawyers. This weakens our whole legal system. That is a big deal in a country like ours, where we govern by laws, not people; where we take our fights to court, not the street.

Although we govern by law, not the whims of dictators, our laws, our courts, are run by people, they are run by lawyers and the other professionals who work with lawyers. We lawyers have to keep up with the changing times or risk becoming irrelevant. We have to try harder. Failure is not an acceptable alternative. Lawyers must understand the world in which they live in order to do their job effectively. When it comes to technology, most of us are failing. As George Paul puts it in his book Foundations of Digital Evidence (ABA 2008):

Quite simply, how can lawyers of the new millennium do their jobs without understanding basic concepts about digital evidence? Without an understanding of how to test, prove, or attack the information of our new age, aren’t lawyers mere ghosts of the past? Where should we test and probe, and where do we shore up? Do we understand the new information well enough to do these traditional jobs?

Is Our Supreme Court Hopelessly Out of Touch?

Is our Supreme Court a dead-end filled with judges who are ghosts of the past great jurists? Are they becoming obsolete because they cannot understand something as technologically simple as a pager and as ubiquitous as a text message? Justice Scalia seems to sense this and so invokes Dylan to chastise the rest of the justices. He accused them of dereliction of duty because they refused to decide the important issues raised by Quon. They did so primarily because the case involved technological issues beyond their kin.

Frankly, it seems like any technology originating after 1950 is beyond the comprehension of certain justices of the Supreme Court, including especially its fearless leader, Chief Justice John G. Roberts. Our top judge is said to write his opinions in long hand on pen and paper. We know at the oral argument in Quon he asked: “What is the difference between the pager and the e-mail?” Were his law clerks who briefed him on the case clueless too? I note that the Ivy League schools who supply most of the clerks for the Supreme Court have no e-discovery classes. Do you think the Justices consider their technological savvy in deciding whom to hire? Would they even know?

The other justices of the Supreme Court appear to be no better equipped to understand the technological world in which the rest of us live. For instance, the author of the Quon opinion, Justice Anthony Kennedy, asked during argument what would happen if someone was sending a text at the same time another was texting them, would the pager say  “Your call is important to us, and we will get back to you?”

The Lack of High Court Leadership Ups the Ante for Lawyers

There is no escaping the inevitable conclusion that we are led by ghosts of the past. We cannot expect any solutions to problems arising from technology to be provided to us from above. Our courts are reflective of their leaders. With Quon as a shining example, they will all be inclined to punt any time something remotely technological comes before them. No, the answers will not come from the high courts, they will have to come from us, the rank and file legal practitioners.

Do not expect the trial judges to do your work for you either. Most are old-school like our appellate courts. Thank God there are a few brilliant exceptions on the bench. Some judges are real, they are in touch, they are online, and they get it. They write the e-discovery opinions that provide important guidance to us all. Still, these few ghost-busters will not be enough, and their important work will fail, if they are not supported by vast numbers of lawyer practitioners and by our law schools.

So far, most academics are not stepping up to the plate. Most seem as clueless as our Justices. They teach civil procedure and spend only five minutes on e-discovery by mentioning Zubulake, which they all seem to mispronounce Zoo-Boo-Lakie. Most professors, like judges, have no first hand experience with e-discovery. When they were practicing attorneys (if they ever were), there was no such thing. Out of sight, out of mind. It is like Plato’s analogy of the cave, all they have ever known are paper shadows. Thank God for the exceptions like Professor Steven Gensler, the University of Florida, and a few others.

We need a much stronger response from our law schools if we are to remain relevant. Offering a two-credit course once a year may be better than nothing, which is still what most schools do, nothing, but it is still woefully inadequate. Electronic Discovery should be a three-credit course offered every semester by every law school in the country. Advanced classes should be offered too. Otherwise, we will continue to graduate students unprepared for modern legal practice. Our Justices and their clerks will continue to wonder what the difference is between a pager and an email. We cannot keep graduating new lawyers who are no more prepared to fulfill their duties than the old lawyers they replace.

The law requires attorneys, professors, and judges to understand the new information well enough to do their traditional jobs. We need solid citizens who are not derelict in their duties just because The-times-they-are-a-changin’. Until we do, instead of leadership and direction from appellate courts, we will get more of the kind of talk we see in Quon explaining their refusal to address important issues of online privacy:

Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.

Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. … At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve. …

A broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.

With a court like this, we all need to up our game to keep our profession relevant. The burden falls on lawyers to puzzle our for themselves on a case by case basis what is right and what is wrong. The Supreme Court itself has no idea, just the common sense not to further mess things up by rendering anything but narrow opinions on subjects beyond their kin, beyond their once ivory, but now paper towers.

Keeping Lawyers Relevant

To avoid becoming living ghosts, we must study, we must understand the gadgets our children use. We must take Malcolm Gladwell’s 10,000 hours findings to heart. I am again reminded of the words of George Paul:

If we abandon our role as society’s experts in information, we loose our power and importance – our righteous calling as the high priests of information. …

In short, law is evolving at the start of the new millennium. We are at a crossroads – a change of phase. With our new information and infrastructure, the concept of written evidence has reached a critical tipping point. Judges, professors, students, and thinkers must rewrite the rules. When something so important to civilization as writing suddenly morphs into a new system, the world’s institutions, but particularly its legal systems, simply must adapt.

The specialists in this area who have learned and adapted, and fortunately there are many, must take time to  provide guidance to other attorneys in our profession who want to learn. It may not be billable, but you owe it to your profession, to your children’s children.

These specialists, many of whom are, I know, reading this essay now, should also take time to provide guidance to the next generations. They should fight to teach in their law school. It will not be easy, but the students in school now may well be our best hope to survive in the coming very difficult years.

In the past we had moments of inspired brilliance from the high court to lead us, but that is not likely now, not when most of our high court is filled with ghosts mystified by the online world. We cannot expect strong leadership from the high court in important technology grounded issues any more than we can expect strong personalities on the court (otherwise they would never be confirmed). In a world where judges shy away from all things technological, which is likely for the next decade or so, the individual lawyers and law firms become far more important.

We have all donated time in countless CLEs for adult practitioners, but are they accomplishing what we hoped? I am not saying to give up. I am saying that we should also focus on our schools and on the coming generations. We should educate the baby-lawyers on the way in, not the seniors on the way out. Aside from the obvious reasons for this, the young students today appear to be better prepared psychologically to deal with non-stop rapid technological change. Most of my generation is not used to it at all. We are in culture-shock. We need to shake it off and embrace change, including a change in the focus on our teaching efforts. We now need to emphasize law schools, not CLES. If we do that, there is a good chance that in the future our best and smartest judges will know the difference between a pager and an email, a twit and a twat.

Dylan and e-Discovery

In my online course on Electronic Discovery I try to be creative and engage students on a number of interactive levels. One of my more novel assignments, one that they all seem to like, is to provide me with a Bob Dylan quote that seems somehow appropriate for e-discovery. It point them to some of my obvious favorites, like this one from Ballad Of A Thin Man:

You walk into the room
With your pencil in your hand
You see somebody naked
And you say, “Who is that man?”
You try so hard
But you don’t understand
Just what you’ll say
When you get home

Because something is happening here
But you don’t know what it is
Do you, Mister Jones?

You’ve been with the professors
And they’ve all liked your looks
With great lawyers you have
Discussed lepers and crooks
You’ve been through all of
F. Scott Fitzgerald’s books
You’re very well read
It’s well known

Because something is happening here
But you don’t know what it is
Do you, Mister Jones?

After my above critique of the Supreme Court and the Joneses now on it, the application of this lyric should be obvious.

I challenge my students to find some more Dylan and to explain to me how and why the lyrics they select are relevant. I get some great answers, and some of our law students today give me hope for tomorrow. Here are just a few:

Trust yourself,
Trust yourself to know the way that will prove true in the end.
Trust yourself,
Trust yourself to find the path where there is no if and when.
Don’t trust me to show you the truth
When the truth may only be ashes and dust.
If you want somebody you can trust, trust yourself.

I think this applies to e-discovery and cooperation because even though you should cooperate with opposing counsel, I think it is important to become acquainted with e-discovery yourself and know what’s going on so you can make an informed decision as to what is best for your client.  As Bob Dylan says, I think at the end of the day you can only trust yourself, and this certainly applies to making a competent decision as an attorney.

________________

The judge, he holds a grudge
He’s gonna call on you
But he’s badly built
And he walks on stilts
Watch out he don’t fall on you.

My legal education so far has taught me that judges hate it when you waste their time and aren’t completely honest to them or to your duties to the court.  This strikes me as coming in a situation where a counsel in discovery has not fulfilled their obligation to attempt to craft a discovery plan in good faith, as in the Gensler article, where this is done with little to no reason by the bad acting side, when called on, they generally don’t have an answer for delaying or impeding discovery.  The judge is not badly built, but the foundation he has, specifically the FRCP are, they are very vague when it comes to discovery, and if the judge can hold a grudge as we have seen in Coleman and Zubulake, when he falls on that opposing counsel, it is in the form of sanctions, they can be quite painful, almost like being fallen on by someone with stilts, that extra height harnesses the gravity, and messes you up.

________________

Nothing (i.e. relevant discovery) was delivered
But I can’t say I sympathize

With what your fate is going to be, (i.e. sanctions)
Yes, for telling all those lies.
Now you must provide some answers (i.e. cooperate!!)

For what you sell has not been received, (i.e. time wasted)
And the sooner you come up with them,
The sooner you can leave. (i.e. the sooner you cooperate, the sooner we can try the case on the merits!!)

_________________

I saw ten thousand talkers whose tongues were all broken
I saw guns and sharp swords in the hands of young children
And it’s a hard, and it’s a hard, it’s a hard, it’s a hard
It’s a hard rain’s a-gonna fall.

This is similar to cooperation because the older lawyers are used to “talking” and holding back as much information as possible, but their “tongues are broken” because they now must change their ways in the new era of e-discovery. Also, new lawyers are like the young children with guns/sharp swords because they have a lot of power but don’t know how to use it. They could continue in the ways of older lawyers and use the holding back of information as weapons, but it doesn’t seem very smart (just as it doesn’t seem very smart for young children to have weapons).

________________

So many roads, so much at stake
So many dead ends, I’m at the edge of the lake
Sometimes I wonder what it’s gonna take
To find dignity

Attorneys certainly seem to have a poor reputation. This is especially bothersome due to the high position that attorneys hold in society. Despite an attorney’s “Creed to Professionalism” to further the profession’s devotion to the public good and to be guided by honor and integrity, I think the discovery abuses that we have studied in this course seem to indicate that attorney’s are not taking their role of advocacy in high enough regard.

With clients’ lives, property, and well-being at stake, an attorney has a duty to educate himself about the proper method with which to deal with e-discovery issues and act accordingly. Instead, clients are being short-changed by attorneys acting without any dignity. A lot is at stake, but attorneys are leading clients into dead ends over e-discovery issues. What is it going to take to encourage an attorney to take his superior role more seriously, what is it going to take to find an attorney acting with dignity in relation to this matter?

__________________

Conclusion

Justice Scalia makes a good point in Quon, we have to keep up with the changes and understand difficult technologies, or get out of the way and make room for those who can. I end this essay with the lyric that apparently even the most arch-conservative Justice on the Supreme Court admires.

Come gather ’round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You’ll be drenched to the bone.
If your time to you
Is worth savin’
Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’.

Come writers and critics
Who prophesize with your pen
And keep your eyes wide
The chance won’t come again
And don’t speak too soon
For the wheel’s still in spin
And there’s no tellin’ who
That it’s namin’.
For the loser now
Will be later to win
For the times they are a-changin’.

Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside ragin’.
It’ll soon shake your windows
And rattle your walls
For the times they are a-changin’.

Come mothers and fathers
Throughout the land
And don’t criticize
What you can’t understand
Your sons and your daughters
Are beyond your command
Your old road is
Rapidly agin’.
Please get out of the new one
If you can’t lend your hand
For the times they are a-changin’.

The line it is drawn
The curse it is cast
The slow one now
Will later be fast
As the present now
Will later be past
The order is
Rapidly fadin’.
And the first one now
Will later be last
For the times they are a-changin’.

8 Responses to The-times-they-are-a-changin’ is a feeble excuse for disregard of duty

  1. PeterK says:

    great piece ruined by a single sentence

    “I agree with Justice Scalia (I cannot believe I am writing this). ”

    why not just leave out the parenthetical phrase?

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  2. Ralph Losey says:

    Because before this, as is no doubt obvious, he was not a judge I thought I would ever agree with. My agreement with Scalia still makes me nervous. Sorry, that’s just the way it is. I don’t try to hide my biases, but I do try not to be blinded by them.

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  3. Excellent article. And I agree with your exposing of your bias toward Justice Scalia.

    I believe it is better to not hide, or obfuscate to confuse others, about our beliefs.

    We rise above them when we choose not to be blinded (or binded):>} by them.

    Happy belated Father’s Day, from one dad to another.

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  4. John Fabian says:

    To stay up on ALL of Dylan’s references and be accurate in your summations, I strongly recommend every lawyer in the United States get two copies of Dylanology AP!

    If Scalia is quoting Dylan you should be too.

    “To live outside the law, you must be honest.”

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  5. […] agreement with Scalia in this case). He also invokes many more apt Dylan lyrics in his treatise: The-times-they-are-a-changin’ is a feeble excuse for disregard of duty. ……………….Share […]

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  6. David Gaynon says:

    It is both dangerous and unwise for the courts to pick stay current with technology and pick winners and losers before it is absolutely necessary. Thesse technology questions are not new but rather ones that are played out time and again. Once lawyers and courts struggled with similar questions driven by changes in technology and market innovations. Early examples of this may be seen in 18th and 19th century litigation against mill owners who built dams and deprived downstream farmers of water. For example Morton Horowitz in his 1992 publicatiobn “The transformation of American Law, 1780-1860,” provides the following quote froma late 18th century New Jersey Case — Merritt v Parker: “In general it may be observed, when a man purchases a piece of land thorugh which a natural mater-course flow, he has a right to make use of it in a natural state, but not to stop or divert it to the prejudice of another… It cannot be legally diverted from its course without the consent of all who have interest in it.”

    My point is just this. Over time these types of issues have a way of working themselves out as technology brings changes to our economy, market mechanisms and culture. It is not wise in my opinion for the court to get to far in front of these. Neither the law nor our understanding of the law is fixed is stone. Its ability to evolve slowly in response to change is a virtue.

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  7. William Kellermann says:

    As you and others discussed in earlier posts, the oral argument (and perhaps the record) regarding the technology in question was at best underwhelming. Given that record, I think we should give Kennedy the benefit of the doubt in writing his opionion. Someone must make the technologically sound record, and then make the arguments to support it, as a solid foundation for an enduring ruling. This was not it.

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  8. […] of the Supreme Court may not have a good grasp of today’s technology, as I examined in The-times-they-are-a-changin’ is a feeble excuse for disregard of duty, but they do have a good grasp on human nature and the law. They know the proper standard for […]

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