e-Discovery Team

Lawyers learn how to practice law in a law firm, not law school. Law schools only prepare graduates for training in the real world. They identify the students that are likely to do well and help them to find good jobs, a difficult task lately. Once in a law firm, a good firm anyway, the new baby lawyers are assigned to more experienced lawyers, usually partners. The partners give them work to do and train them. The teach them how to be lawyers. They supervise, watch, and correct with both words and action. They guide and show a new lawyer what to do. They work closely together.

Full training this way takes years and is very effective, at least for the associates who make it. Many don’t. They are asked to leave or are fired. The ones let go then look for a new job where their training can continue with someone else. This kind of traditional training has been followed by generations of lawyers around the world. It works because of the institutional knowledge that all law firms have. It works because all good firms have senior lawyers with a life time of knowledge and technical skills.

This system allows the legal profession to maintain high standards of professional competence in all fields of law. All fields, that is, except one, electronic discovery. This blog will explain why e-discovery is the problem child and what can be done about it.

Associate Training by Practice and Supervision Follows the Medieval Tradition of Apprenticeship

This kind of training program continues a well established system for the transmission of knowledge and technical skills. It was developed in the Middle Ages and is called apprenticeship training. It works especially well for all crafts requiring complex skills and techniques.

The practice of law is a craft, an art, not a science. That is why this method of training has worked so well in the law, just as it has in the building trades and the arts, where it also still exits. It worked for Verrocchio and Da Vinci in the Fifteenth Century. It worked for Lincoln and Herndon in the Nineteenth Century. It still works in the Twenty First Century for every law firm in the world. Knowledge is effectively transmitted from one generation of attorneys to the next. It is passed from Master to Apprentice, to use the original terminology. These old terms are still used in the building trades today, but in the law we call them partners (or shareholders) and associates.

Two Examples of Law Firm Apprenticeship Training

Here are a couple of examples of how the apprenticeship program works today in most law firms. A real estate partner, who has been practicing “dirt law” for years, guides a new associate assigned to her department. That partner had learned her craft years ago from still senior partners. She has since developed her own techniques and ways of doing things. She has mastered her trade. She now passes on her knowledge and skills by teaching the new associates. It is a process that depends on close supervision. Sometimes it is friendly, sometimes not. That depends on the partner and the firm culture. The partner both explains and shows the associate, the apprentice lawyer, the ins and outs of deals, closings, title searches, funding, zoning, contracts, and document preparation. Real estate law is complex, like most areas of the law today.

A young litigator is trained the same way. More experienced lawyers help them to understand various substantive areas of law, state and federal procedures, strategies, and specific tasks, including depositions, hearing arguments, and trial. They not only help the apprentice understand, they teach them to do, to use this knowledge to the benefit their clients. This usage part is where the real skill and wisdom comes in. The new, usually younger attorneys act as apprentices for the more experienced, senior trial lawyers. They carry the bags. They watch and learn. They do new things and are corrected, counseled, and guided by those who know, by those with the institutional knowledge.

That is how lawyers learn the ropes. That is how they learn to practice law. They do not reinvent the wheel. That is difficult, if not impossible, when the wheels in question are very complex areas of law, requiring complicated technical skills. That is why the law firm apprenticeship system works so well, and has for many decades. It is the bedrock of the legal profession. It allows for institutional knowledge to be preserved and effectively transmitted from one generation to the next.

New Challenges Created by Electronic Discovery

This system does not work in the new field of electronic discovery simply because it is so new. Almost every law firm in the world lacks the institutional knowledge needed to teach this new area of practice. From what I have seen, at best only one or two firms out of a thousand have senior attorneys with mastery of electronic discovery. In most there are no masters to teach.

The reality is, this subject so new that virtually no one knows how to do it. As a result most lawyers do their best to avoid it, and when they cannot, they hire outside experts to tell them what to do. Or, worse yet, they blunder through blindly on their own and mess up at their client’s expense. They pretend like electronically store information (ESI) is the same as paper records, which they do know how to handle. This is a fundamental mistake. See my prior blog: Plato’s Cave: why most lawyers love paper and hate e-discovery and what this means to the future of legal education. ESI is fundamentally different from paper records in a number of important ways. It is like the old joke of the person looking for his keys at night. He looks under the lamppost on the sidewalk outside his house because that is the only place where there is light to see. He do so even though he knows full well that he dropped his keys in the yard where it is dark.

There are no masters of this craft in most law firms because it is a new craft. It is a difficult craft. Unlike real estate and general litigation, where there are tens of thousands of lawyers who specialize in these fields, there are very few lawyers in the world who only do electronic discovery law. I would guess, and most other specialists whom I have talked to about this agree, that there are fewer than a thousand odd-ball lawyers world-wide who have actually mastered this new area of legal practice. There may be far less than that.

This is not surprising. Electronic discovery as a practice area has sprung into the law virtually overnight, in just a decade or two. It did so, not just as a rare oddity, like space-law, but as a powerful force. It now touches on the very foundations of all litigation practice because it concerns the discovery and use of written evidence. Written evidence today, for all practical purposes, means digital evidence. That is because 98% or more of all writings are now generated on computers and stored on computers.

This change was not sought by lawyers, it was thrust upon them by the incredible, unprecedented leaps in technology of the last few years. These technological leaps have caused all writings to be transformed from paper creations to digital creations. It has caused documents to be stored on vast, complex computer systems, not filing cabinets. Most importantly, it has multiplied the amount of information that may be relevant in a case by a million-fold or more. All these new challenges and problems have been thrust on the profession.

In the Nineties and early Two Thousands, when these problems first started to arise, there were no senior lawyers around to teach anyone how to deal with them. No one of any age knew what to do. No one had ever faced these problems before. People did not have computers on their desk, or in their briefcase, not to mention in every pocket and in the clouds. In today’s e-discovery world evidence is likely to exist in all of these place, including the trillion plus websites that now make up the Internet.

Only a few lawyers, typically ones like me that were computer hobbyists, were eventually able to figure it out on their own. They were half in the tech-world anyway. Many, if not most of these early pioneers were snatched up by e-discovery vendors or went solo. I could explain why, but that would take us too far astray. Suffice it to say that I have been lucky to live in supportive, progressive thinking law firms. As a result, in 2011 there are still no senior lawyers around in most law firms to teach lawyers how to deal with these crazy new problems.

Since 99% of the law firms today lack the institutional memory and knowledge needed to teach electronic discovery in the traditional manner, by apprenticeship based programs, the profession must find another way to learn.

Law Schools and CLEs are Not the Answer

Law schools are not the answer to this learning challenge, this knowledge gap, although they could help. They are not the answer because law schools are designed to teach a student how to learn, how to think. They do not teach much actual practice or technical skills. Law firms do that. Still, they could help by teaching students something about the law of e-discovery. But today only a handful of schools offer anything, and even then it is just a two-credit course of the subject. The law school where I teach, the University of Florida, was the first to offer both an introductory and advanced course in 2010, and the first to offer a three-credit course. This is the course that I taught online at U.F. in the summer of 2010. More on that later.

Law schools shy away from e-discovery for a number of reasons. Generally they only like to teach theory. But they also avoid it for the same reason that law firms do, none of the professors have any experience with it.

CLE companies do not have these reservations. They have been cashing in on the competency void. They have put on a near endless streams of events, ranging from one hour quickies, to full day events. Yet, in spite of all these efforts, the profession is still falling behind. Sanctions are still the most common e-discovery opinion written by judges who must deal with these issues. See Kroll’s Annual Report: Same-Old, Same-Old. So What Are We Going To Do About It?

We should not be surprised by this. CLEs were never designed to teach fundamental practice skills, anymore that law schools were. CLEs were designed as refresher courses. They help a practictioner keep current with new developments in a field that they already know, or are learning under the guidance of a senior lawyer in their firm. They were designed to build on a law firm’s training, not replace it.

CLEs event are good at that building and supplementation. They are good at passing along a few new tips and suggestions. They are no substitute for the shoulder-to-shoulder guidance of a senior attorney with mastery of the law. You cannot learn the ropes at a CLE. The most you can hope for is one or two new knots.

So what is the answer? If law schools cannot work, and most won’t even try, and CLEs cannot work, even though they may advertise a bill of goods, what should the profession do?  Must we stumble along for a generation or two while law firms slowly build up the institutional knowledge needed to cope with the ongoing revolutions in technology? No. I think there is another solution. Technology got us into this mess and technology can get us us out of it. Technology and a lot of hard work, but that has always been necessary for real learning. Just ask any first year associate.

Online Education

The answer is online training in e-discovery law, training that harnesses the new capacities of technology and the Internet, yet still preserves the Master’s touch still preserves the best interactive elements of the Apprenticeship tradition. This kind of online training can fast-track the knowledge base and skills of a few technology-minded lawyers in every law firm. It is no substitute for traditional in-firm apprenticeships for the few firms that have the requisite knowledge base. But it can help. Attorneys who spend the time and effort to be trained online can then more quickly acquire the full skills required for competence.

These first online student graduates can then learn faster in practice and make fewer mistakes. They can quickly become their firm’s e-discovery guru. Their firms can then return to traditional training by associate supervision and instruction. They can implement their own in-house training program. Sure, there will still be disruptions for this generation of lawyers. This process will take five to ten years, or more. But online training can mitigate the damages of this transitional period. It can provide a new kind of training never offered before in the law: training on and with computers and on the Internet.

For online training to work on any subject, not just e-discovery, it must take advantage of the new technologies, the newly emerging power of Internet based global networks and collaboration. It is not enough to just put a book online, or stream videos of in-person lectures, although those are still key building blocks. Effective online instruction must allow a diversity of voices, not just one or two teachers. It must tap into the top experts in the field. It must also setup safe interactions between these experts and students. It must tap student creativity, guide research, and provide feedback. It must encourage and facilitate cooperative learning. It must also test and verify comprehension.

This is what I have been working on for the past two years and announced just recently on my e-discoveryteam.com blog article, Cyber Law School in e-Discovery is Now Open! Also click here to see a sample of one of the 61 classes in this course. The sample class has videos of me speaking, but other classes have people smarter than me on tape, as you can see in the Syllabus.

This kind of online training program is modeled upon the same give and take and interactions of apprentice programs. It is no substitute for traditional practice based models, but it is a vast improvement over CLEs. See my blog: Are Today’s CLE Programs Doomed to Go the Way of the Newspaper?

Indeed, studies have shown than online instruction, especially if done right with these interactive elements, are even better than in-person classes. It works for all levels of education, but the improvements are especially strong in graduate programs. This is shown by a 2010 report by U.S. Department of Education on 1,000 studies of online learning conducted between 1996 and 2008. See: Evaluation of Evidence-Based Practices in Online Learning: A Meta-Analysis and Review of Online Learning Studies. The consensus of research shows that online instruction is better than traditional bricks and mortar instruction for today’s plugged-in students. Also See the NY Times article Study Finds That Online Education Beats the Classroom. For more information on this study and the advantages of online education over in-person classroom training, see my e-discoveryteam.com blog article, Why Online Education Will Surpass Traditional Face-to-Face Education in the Next 5-10 Years.

The details of the online training program I developed are explained in the school portal at: e-DiscoveryTeamTraining.com, and I will not repeat them here. Suffice it to say, they combine my hyper-linked writings and streaming videos of myself and of many other experts in the field. Plus, and this is key, they include the option for students to interact personally with expert instructors, masters of this practice. They also include challenges for further research, and instructions for further studies. Students can add testing and confirmation of understanding too, if they wish. This program has already been tested and proven at the University of Florida School of Law where it was used in the summer of 2010.

This is a lengthy course of study. It is comprised of sixty-one online classes and takes anywhere from 50 to 150 hours to complete. The total time required depends on the amount of time a student takes to do the follow-up research and assignments at the end of each class.  This kind of extended hard work is what is required for real learning.

Another unique aspect of the online program is the collaborative aspect. I am seeking and receiving assistance from that thousand or so experts in the field that I mentioned. There are not only signing up individually to help as instructors, but some are also committing their companies to collaborate. They are responding to my call for volunteers to create and provide new training materials to supplement my own 150-hour program.

Electronic discovery vendors around the world are invited to participate.  They are invited to wow me, and everyone else, by creating new, creative online instruction programs for the students who enroll in the program. Many have already heard my prior invitations and responded. Eventually I expect all of the top names to participate. I am making it easy and win/win. The best companies want an educated consumer and are happy to pitch in.

This online program is intended to be a safe, friendly place for learning and collaboration; an educational facebook of sorts for interactive e-discovery training.

Conclusion

You can help to make it happen. You can join in this new movement to bridge the competency gap in e-discovery. You can enroll yourself, the first quarter is free, or you can encourage others you know to do so. I need help to get the word out. We all know there is a pressing need. If you are one of the 1,000, you can volunteer to help me teach Level Three Registered students. You can also persuade your company to participate in the vendor education program as a content provider. All are invited. All are welcome.

You have nothing to lose and may well become your firm’s e-discovery guru. All it takes is true mastery of your craft. Attain that and any enlightened law firm will put you to work, not only in practice serving clients, but also in training others. Study and teaching in this area of the law can be fun, if you do it right. Be patient and creative. Work hard, but enjoy yourself in the process. Laughing helps a lot. Remember the motto of our new online training program – creativity is the friend of learning and boredom is the enemy. That has long been known by all Masters in the Apprenticeship tradition.