I have been telling my students and colleagues for the past few years that electronic discovery law is hot, that it is the fastest growing legal field in the world. A recent article in Corporate Counsel confirms my view, as this blog will explain. There are opportunities for professionals of all kinds, not just lawyers. Although e-discovery has been around since the 90s, it is by no means a matured or saturated field. It is really just getting started. There is still plenty of time to get in on the ground floor and do the e-disco dance.
If you have any doubt that this is still a new field, just go into any law office in the world and ask if they have any lawyers trained in e-discovery law. Ninety-eight percent of them will say no. Some of the two percent will be stretching the truth. They will have committee practices of part-timers, but no dedicated full-time practitioners. Still skeptical? Then ask the judges. They will tell you they are not seeing that many e-discovery issues. There are no issues because most lawyers are still in full ostrich mode. Both the plaintiffs and defense bars do not want to go there. They do not know how. No one has taught them the e-disco dance. The countless CLEs flooding the market have done nothing but scare them off the dance floor.
Even though the need is strong and growing fast, there are still only a few full-time e-disco dancers out there. Even a klutz like me can look good with the right partners. The need for more is clear and obvious. The evidence is no longer on paper. It is all electronic. There is no arguing with that. The old lawyer paper shadow games of e-discovery avoidance are wearing out. See: Plato’s Cave: why most lawyers love paper and hate e-discovery and what this means to the future of legal education, (August 11, 2009). The clients are starting to catch on. They hear the beat. They fear the sanctions. They are starting to demand competence in electronic discovery.
E-discovery is big and getting bigger very week. It is far more than just the production of e-documents. It is about preservation, it is about strategy, it is about the hottest motion practice in the law these days – motions for sanctions. It is also about electronic evidence, trial, and jury persuasion. The e-discovery specialist is needed in all phases of litigation, including pre-litigation, where the preservation work is intense, and, as we are now learning, they may also be needed at trial.
Trial is the next frontier of this new practice area. It is where surprise gamesmanship over electronic evidence and discovery can derail years of careful work and planning. A surprise discovery sanctions motion was brought in day two of a recent large jury trial in Nebraska. See Article in Law 360, Discovery Debate Prompts Mistrial In Don, Doff Suit. The class action suit ended in a mistrial after plaintiff’s counsel made allegations of discovery abuse and evidence tampering. Defense counsel was forced to withdraw and a mistrial was declared. In today’s world where discovery and sanctions are so important and may be brought up at trial for the first time, it may be advisable to bring an e-discovery specialists with you to trial. Like it our not, that is the dance these days. Trial lawyers need an e-disco expert at their side at all times. The team approach is the only safe way to practice law in the Twenty First Century.
Want another more mundane trail example? Consider a recent holding in a criminal case where the failure to object to the admission of email at trial, and not object to its authentication, was found to constitute the ineffective assistance of counsel. Commonwealth v. Capece, 2009 Pa. Dist. & Cnty. Dec. LEXIS 406 (Pa. County Ct. 2009).
The electronic music is playing loud. Clients want their lawyers to stop standing around. They want them to dance, not just complain about the music. The old-time box-step paper music is not coming back. The world is electronic and is getting more so every day. Law firms and in-house counsel are starting to awaken to the lack of any real talent in their ranks in this new field. The demand is starting to build, but the supply of talent and expertise remains thin.
The new article in Corporate Counsel confirms my view:
Cohen said most firms have historically taken the approach that e-discovery is an integral part of litigation and all litigators should be experts in the area. Those firms might create an e-discovery committee, but don’t have a practice focused on the issue. It’s not a crazy approach, he said, but one they quickly find out is a little too complicated to expect every litigator to become an expert.
The best way to protect clients and save them money is to have a dedicated practice, Cohen said, but the problem is there are few experts in the field to create these practice groups. …
Because so few firms have dedicated e-discovery practice areas, the leaders of these groups — which are often the founders of the groups — seem to be in high demand. …
“All firms should be advised to increase their expertise in this area rapidly if they don’t have it,” Deutchman had said. “Litigation firms in no small part will be distinguished going forward between those that have a good solid grasp of e-discovery and those that don’t.” He had said e-discovery is no different than any other piece of litigation. To not have experience in this realm would be like having a firm that didn’t know how to write pleadings, he said.
The need for lawyers, paralegals and techs with specialized knowledge in e-discovery is growing. The vast majority of lawyers in the world know little or nothing about e-discovery. Training is needed to fill the gap. We need to establish dedicated e-discovery teams in every major law firm and corporation in the country, the world. Lawyers who already have the necessary skills should dedicate all of their practice to e-discovery. It is now too complicated a subject to do part-time. It covers a vast area of law and legal skills, from litigation readiness and information management, to search, to project management, and jury trial. It even includes the review and production of documents, millions of them.
Law firms should support these new specialists. Real experts who can do the e-disco dance and train others are the key. The role of certification in this process is a related, but different question, one that I asked for your input on in my last blog, e-Discovery Education and Certification.
Dance school anyone? I suggest the online e-Discovery Team approach, but that is just one way. The important thing is to learn the moves any way you can and get out on the floor. While you are standing around, opposing counsel may be learning the moves that can trip you up.