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.
The paradox of the obvious secret is similar to the common knowledge residing within a close knit group of friends or family. Everyone knows and believes it to be obvious as to why another member of the group is lacking in a certain area or failing to reach a goal or exhibiting behaviors that causes havoc for him or her and those affected. There are many conversations about the root causes between and amongst those who can clearly see what’s lacking, but never in front of those who need to hear it best. Intervention is necessary, but ugly. Purifying, but no one wants to do it. Ralph and George make great points here about this not being a secret for those in the know — those attuned to and keyed in on the requirements to walk the pathways on the quest for excellence in e-discovery.
As a former AMLaw100 associate and Senior Counsel at a relatively early stage in my career, I and my colleagues who were faced with the management of e-discovery projects without in-depth training, know all-too-often the experience of having to explain and direct a senior partner who is even more clueless about the process but refuses to acknowledge it. With puffed chests, they look down from pedestals of stature and litigation experience and show us the light as how skilled they are because their clients have selected them based on their litigation and substantive knowledge and ranking within the community. There ends the conversation. Yet many of us know that these clients, as Ralph points out, are making uneducated selections without understanding the critical nature that e-discovery plays in litigation. Perhaps, it’s not the client’s fault at all. Perhaps, when someone touts their expert knowledge in a field, the client should also be comfortable that they would have expert wisdom to seek guidance in any key area that would be to the client’s benefit.
The game has to be changed from the top down. National and international law firms who shell out buku dollars for its partners need to step up and pronounce and promote the needs for internal experts in the field. Not a department that has bottom tier status within the firm or a few partners who have garnered some experience through the battles fought in litigation, but a heralded corps that receives status and respect such that all in the firm must be aligned with it in order to bring their own skills sets up to the next level. That doesn’t happen. It needs to change.
There are many skilled e-discovery vendors and consultants who work with law firms and corporations to assist in matters. However, most vendors do not have lawyers on staff and the knowledge transfer between the external techie and internal lawyers remains clouded at best. Top litigators work with litigation consultants on areas such as valuation, trial technology, and the like…doesn’t it make sense that dedicated e-discovery attorneys should be working with external vendors to do the same?
As a registered patent attorney, I am familiar with the path required to pursue a career in a niche status of the law. I believe that e-discovery should have a similar specialty status such as patent or tax law. The U.S. Patent and Trademark Office and the IRS lay the foundation for the laws and procedures that attorneys become versed in on behalf of their clients. E-discovery law and procedures are more exciting as they emerge organically from Sedona and common law. Expertise needs to be promoted and the bar needs to be set high in e-discovery on training and certification. Organization such as ACEDS and Ralph’s e-discovery team training programs (I’m enrolled) are taking the lead on certification. This is a great start. We need more. We need a “do not pass go…do not collect $200” level of excellence REQUIRED in order to practice the field.
We, as members of a profession who have all passed a bar (and at least another round of training and examination for patent and tax folk), should be the first to understand the level of training required to achieve even basic levels of expertise. We strive ridiculously hard at the beginning of our careers and fall asleep at CLE’s in the middle and apex of our careers when we should be learning the most. Pretend as we might, we are being exposed in front of our clients via sanctions, clumsy attempts at defensibility and overblown budgets that are rightly contested and unpaid. It’s exciting to learn something new. I’m having a ball learning and garnering more expertise in a rapidly evolving field. It can seem like drinking from a firehose or chasing the holy grail but the results of knowing more than most in my profession, even through small efforts at times, is empowering me daily. I’m enjoying it, and you know what? I think you should too.
Why do we expect the learning curve for lawyers to be anything different than the normal curve for the public at large when it comes to technology? Especially when it is easy, and getting easier to use the technology without knowing how it works?
Look, this is not rocket science (I know, because I do that too – or at least rocket engineering.) The problem is 1) we tried to, and in some instances still try to mimic paper, especially in the cost quadrant; and 2) we overlay the rigor of computer forensics for criminal and data security invistigations in too many instances where it is overkill. The entire process is way too complicated and expensive and frankly unfair. Litigants, most of whom are in the dark about the fine points of technolgy as well, are held accountable based on context presumed accurate but that they didn’t manage and perhaps didn’t know existed.
There is little incentive to change because it would rip the heart out of the litigation support technology and electronic discovery industries. This ultimately gives lawyers the excuse to ‘leave it to the experts.’
As George Socha has said several times, litigants of any substance (large corporations) are like petulent teenagers faced with cleaning their rooms. They don’t want to do it themselves, the parent (counsel) can’t do it for them without sturm and drang and hiring a maid adds expense while insuring some precious treasure will be lost and nothing will end up in the right spot. Except with eDisco, it is a million dollar maid to boot.
But, as iTunes revolutionized the music industry, someone will come along and revolutionize electronic discovery and records retention so it will be ‘three-clicks easy.’ Trial lawyers can focus on what they do best – resolving disputes on the merits. Frankly, that’s all we should ever expect them to do.
[…] Tell Me Why? […]
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[…] 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 analysis […]
[…] 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 Onewe left off with a review of some of the analysis […]