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

  1. […] According to Ralph Losey it’s: 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. […]

  2. Steve Meyer says:

    Thanks for the insight. I suspected this and now can understand why your profession has that deer in the headlights look when discussing digital forensics with them. It’s so satisfying to show the real digital truth.

  3. Ralph: Thank you. Conceding the truth of your “secret,” and knowing how glacially the law responds to changes in technology, I can think of only one way to get the profession as a whole to wake up: the malpractice insurance carriers must start asking about e-discovery in applications, as when they started asking about calendaring systems to remind attorneys not to miss key dates. Alternatively, if the carriers were to give a discount for e-discovery competence, maybe our profession could avoid some of the predictably forthcoming professional catastrophes. But I suppose the carriers won’t take action until there are too many e-discovery-based malpractice claims to ignore. But why aren’t there more claims now? I think it’s because there’s another “secret” in the shadows: attorneys are hiding their e-discovery incompetence from their clients, in part by not telling them what they are not doing.

  4. Not So fast Professor. Last time I checked a warrant for “incompetence” still required probable cause. Now I will agree that something seems amiss because eDiscovery is totally absent from state court litigation in my area – The Baltimore MD – Washington DC metropolitan area – consisting of more than 10 high volume state courts in three states. I have been intimately involved with technology and the law since the early 1990’s and the development of electronic filing( JusticeLink, CourtLink, Lexis Nexis file and serve) and on-line dispute resolution( virtualcourthouse.com). With that background in mind and my extraordinary respect for my friend Craig Ball I started my own investigation. I am blessed to have a very active arbitration/mediation practice and as a recalled trial judge I handle more than 500 cases a year and speak to at least 30 or so trial lawyers a week. So I began to ask that group of very talented , skilled and professional trial lawyers why they were not using eDiscovery. As the space is limited here I will lay out the complete story in my blog in the next several weeks. sign up for the blog and then you will know as Paul Harvey would say “ The Rest of the Story” see http://montyahalt.blogspot.com/ .

  5. George Socha says:

    Thanks for the article, Ralph, but this is no secret! Or if it is a secret, it has to be the most poorly kept secrets in the legal profession. This secret has been the topic of discussion for years in publications such as the ABA Journal and various other ABA publications, numerous state bar association journals, and Law Technology News. It has been a popular discussion topic at e-discovery conferences for 15 years. It has been reported as part of the results of surveys that Tom Gelbmann and I did from 2003 through 2009, surveys done by the ABA, and any number of others surveys. And then there was that whole thing about the changes to the Federal Rules of Civil Procedure.

    The disagreement is about what should be done about this lack of understanding and expertise. Many advocate abolishing e-discovery, a fool’s errand in my opinion. Better would be to do as Ralph suggests, buckle down, and start to learn this still because it really is not going to go away.

  6. Tinzing Artmann says:

    Yet another great piece of reading. As always, I am very thankful for all your great articles. I work with many great trial lawyers and, I assist them in managing electronic discovery. So far, I have been very lucky in getting positive responses and colloboration from my supervising attorneys when it comes to managing electronic discovery. But, I also hear from other firms during my CLE meetings that not every body is lucky like me but, there are so many others out there who struggles with the same exact hardship you cited above.

  7. Melinda Levitt says:

    Ralph — you are right on the money with this article. I think that another aspect of the problem is the “dissing” that e-discovery gets from attorneys not familiar with how intricate it can be and difficulties that can abound. In other words, non e-discovery attorneys tend to dismiss e-discovery as “doc review” — a lowly and mechanical task that they do not feel they need to dirty their hands with, instead leaving it to people of “lesser minds.” They then, of course, get angry with the costs involved and cannot understand how a budget that was set without the assistance of e-discovery counsel was so out of sync with reality. Moreover, by not understanding the basics of the technology issues, let alone the process, the issues, the solutions, the options, the possibilities and the impossibilities — they actually know less about their cases and their clients and, therefore, have a significantly reduced understanding about the entire matter. I do not have a solution for this problem . . . but agree that the lack of knowledge and appreciation for where we are today and how quickly a new tomorrow will be upon us all is a danger to the legal community.

  8. […] general sense, and I’m entitled to a little literary license, no?). In a recent piece, Losey wrote about the dirty little secret of attorney incompetence around eDiscovery. I feel the call to also write something […]

  9. […] first secret of search here exposed is the same kind of secret as those revealed in Spilling the Beans on a Dirty Little Secret of Most Trial Lawyers. You probably have heard it already, especially if you have read Judge Peck’s famous wake-up […]

  10. […] them “dark secrets.”  Don’t miss Ralph’s posts, but know that he has a penchant for revealing secrets that are “secret” in the same way that the square root of 256 […]

  11. […] I started last week on the Secrets of Search, which was in turn a sequel to two blogs before that: Spilling the Beans on a Dirty Little Secret of Most Trial Lawyers and Tell Me Why?  In Secrets of Search – Part One we left off with a review of some of the […]

  12. […] in litigation, dislike e-discovery and try their best to avoid it. See my blogs: Tell Me Why?, and Spilling the Beans on a Dirty Little Secret of Most Trial Lawyers. Lawyers are trained and prepared instead to handle paper documents following systems developed in […]

  13. nancy says:

    nancy…

    […]Spilling the Beans on a Dirty Little Secret of Most Trial Lawyers « e-Discovery Team ®[…]…

  14. […] e-Discovery problem is different, some have argued. Technology “snuck up” on the lawyers and cold-cocked an entire profession one day in 2006. While virtually […]

    • El Jefe Maximo says:

      The point as to the difference between the early days of computing — the generation of “word processing” documents placed into paper files; as distinct from modern digitially held data is perhaps the most important insight in the piece. Lots of lawyers understand and can properly utilize the first part of the legal computer era (word processing). . .but understanding departs when it hits the concept of the paperless office and the digital file.

  15. […] I started last week on the Secrets of Search, which was in turn a sequel to two blogs before that: Spilling the Beans on a Dirty Little Secret of Most Trial Lawyers and Tell Me Why?  In Secrets of Search – Part One we left off with a review of some of the […]

  16. […] first secret of search here exposed is the same kind of secret as those revealed in Spilling the Beans on a Dirty Little Secret of Most Trial Lawyers. You probably have heard it already, especially if you have read Judge Peck’s famous wake-up call […]

  17. […] first secret of search here exposed is the same kind of secret as those revealed in Spilling the Beans on a Dirty Little Secret of Most Trial Lawyers. You probably have heard it already, especially if you have read Judge Peck’s famous wake-up […]

  18. […] first secret of search here exposed is the same kind of secret as those revealed in Spilling the Beans on a Dirty Little Secret of Most Trial Lawyers. You probably have heard it already, especially if you have read Judge Peck’s famous wake-up […]

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