In my last blog I said I would reveal some of the secrets of search, but that has been delayed as I do more fact checking on some of the dozens of scientific studies and papers underlying the forthcoming blog. It is easy to be entertaining, but more difficult to be accurate, and, foolish me, I’m trying to be both. Anyway, before I get into search secrets, I need to expound further on last week’s controversial blog on trial lawyers. I want to share with you my thinking on the causes of the competency challenge. I am reminded of one of my favorite old Beatles songs, Tell Me Why.
More on the Alleged Secrets of My Trial Lawyer Friends and Colleagues
Many of you told me that the trial lawyer competency challenge that I wrote about last week was not really a secret at all. See for instance the public comment to the blog by George Socha saying that:
… this is no secret! Or if it is a secret, it has to be the most poorly kept secret in the legal profession. … It has been a popular discussion topic at e-discovery conferences for 15 years. … 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.
I agree with my friend George that it is no secret to most of my readers, who are generally other e-discovery experts and insiders, after all I have written about it many times before. But I disagree that it is not a secret to many, for instance, the litigants whom these attorneys represent, a/k/a clients. Do you think clients know about the existence or extent of their attorneys, ahem … difficulties with computer evidence? They are, after all, the ones who pay billions of dollars in attorneys fees to them each year to prosecute and defend law suits.
Besides, the real point of my blog was not so much to once again spill the beans and point out the obvious (to us). The primary purpose of the trial lawyers exposé was to go into why this state of affairs persists. Why does the competency problem endure even though, as George correctly notes, it has been a popular discussion topic at e-discovery conferences for 15 years. I think it is because we have not fully understood the why, that we have failed in the correction. As the Beatles said: Tell me why you cried, and why you lied to me.
It is not lawyer laziness as some people think. Mere buckling down alone will not solve the problem (although it helps). We have to address the fundamental causes for the resistance, a resistance to change that can, I admit, easily be mistaken for laziness. But, trust me on this as a trial lawyer with over 30 years of experience, trial lawyers are not lazy! One look at their billable hours will prove that, not to mention their many non-billable hours and pro bono contributions. No, there is far more to this resistance to change than that.
We must understand the true cause of trial lawyer resistance in order to fix the problem. If we cannot do that, we may be talking about it at e-discovery conferences for another 15 years. Although frankly, I don’t think the old timers, people my age, will really have that long. Assuming they live that long at all, the under-thirty set of lawyers, the young turks, will push them aside long before then. The same thing is likely to happen to the middle-agers in the 30-50 year old range. For a comic example of what I mean, take a look at my animation of a 26(f) conference: An Animated View of Lawyers at a Rule 26(f) Conference. Also see my other training cartoon: Star Trek Meets e-Discovery: Episode 3 – Starfleet Academy Training. If you are just hoping e-discovery will go away, at least until you retire, you may be in for a rude awakening someday, and that day may be sooner than you expect.
In my last blog I tried to say something new on the topic, in spite of the 15 year pedigree of this secret, by focusing on the causes. I noted six reasons, six fundamental causes for the problem, and in a future blog on the secrets of search, I will suggest one more. Yes, it is the all-important go with the flow, seventh insight. To summarize my analysis from last week, here are six reasons why so many lawyers suffer from e-discovery incompetence:
- Historically unprecedented advances in technology engendering an explosion in the volume and complexity of written evidence;
- The law is a learned profession and lawyers, more than most, are deeply entrenched in the past paper-based civilizations that are now vanishing before our eyes;
- Elders in the profession are the ones who control the social mores and priority designations and they are more deeply immersed in paper, and more detached from the new electronic worlds, than the new generation of lawyers now entering the field.
- Law schools are very slow to recognize, much less meet the educational challenges raised by the paradigm shift in evidence and discovery.
- The legal profession is inherently conservative in nature and most young people who are drawn to the profession do not have the kind of creative artistic or technical computer backgrounds needed to excel in the new technical paradigms and new team paradigms.
- Until just a few years ago you could still effectively represent your clients in most cases by relying on the paper print-outs of original electronics, and the stall and avoid real e-discovery tactics still worked. (IMO – Facebook and other social media, when combined with the sheer volumes of messages of all kinds, provided the final death blow to the continued use of these paper strategies.)
As long as the competency problem persists, so must our discussion. Nothing will change until the consumers of legal services finally catch up with the insiders, who, like George Socha, have been talking about it for fifteen years, largely in vain. We need to improve the talk. We need to talk about the root causes to make our talk more effective. Then it will become better known. Then the consumers of legal services will start to demand competence from their attorneys in all forms of evidence, not just paper and testimony.
When the consumer demand is there, whether driven by young turks or old professors, then we can apply our knowledge of the seven causes of trial lawyer’s reluctance to learn (the seventh to come soon, so stay tuned). Then we can provide effective training to all lawyers, students, paralegals, techs, and others in the field. Knowledge of the causes of the persistent competency challenge is critical to effective communication and effective corrective action, i.w. training, or as George put it to “buckle down, and start to learn this because it really is not going to go away.” No, e-discovery is here to stay, but you cannot say that about all lawyers.