In honor of President's Day, check out this abridged article from Ralph Losey's blog. Originally published in 2009 to celebrate Lincoln's Bicentennial, it's a fun look at how President Lincoln might practice law today. Read the full version here.
The February 2009 issue of the ABA Journal, in a cover story entitled How to Practice Law Like Lincoln, points out how much in common we lawyers of today have with lawyers of the 1800s. Indeed that is true, but that is not necessarily a virtue considering the vast changes in society; changes that the profession and most law schools have been unable to keep up with. …
But this is not going to be another article on the relevancy failure of most law schools. Instead, I want to focus on the indisputable fact that, if Lincoln were alive today, he would be an e-discovery lawyer!
Lincoln Was a Technophile
Lincoln was as obsessed with the latest inventions and advances in technology as any techno-geek e-discovery lawyer alive today. The latest things in Lincoln’s day were mechanical devices of all kinds, typically steam powered, and the early electromagnetic devices, then primarily the telegraph. Indeed, the first electronic transmission from a flying machine, a balloon, was a telegraph sent from inventor Thaddeus Lowe to President Lincoln on June 16, 1861. …
At the height of his legal career, Lincoln’s biggest clients were the Googles of his day, namely the railroad companies with their incredible new locomotives. … A lawyer as obsessed with telegraphs and connectivity as Lincoln was would surely have been an early adopter of the Internet and an enthusiast of electronic discovery. See: Abraham Lincoln: A Technology Leader of His Time (U.S. News & World Report, 2/11/09). …
Abraham Lincoln did not just have a passing interest in new technologies. He was obsessed with it, like most good e-discovery lawyers are today. In the worst days of the Civil War, the one thing that could still bring Lincoln joy was his talks with the one true scientist then residing in Washington, D.C., the first director of the Smithsonian Institution, Dr. Joseph Henry, a specialist in light and electricity. Despite the fact that Henry’s political views were anti-emancipation and virtually pro-secession, Lincoln would sneak over to the Smithsonian every chance he could get to talk to Dr. Henry. Lincoln told the journalist, Charles Carleton Coffin:
My visits to the Smithsonian, to Dr. Henry, and his able lieutenant, Professor Baird, are the chief recreations of my life…These men are missionaries to excite scientific research and promote scientific knowledge. The country has no more faithful servants, though it may have to wait another century to appreciate the value of their labors.
Bruce, Lincoln and the Tools of War, p. 219. …
As final proof that Lincoln was one of the preeminent technology lawyers of his day, and if he were alive today, surely would be again, I offer the little known fact that Abraham Lincoln is the only President in United States history to have been issued a patent. He patented an invention for “Buoying Vessels Over Shoals.” … I could only find the patent on the USPTO website, where it is not celebrated and is hard to read. So as my small contribution to Lincoln memorabilia in the bicentennial year of 2009, I offer the complete copy of Abraham Lincoln’s three-page patent. …
Lincoln Loved Truth More Than Winning
Like all good e-discovery lawyers, Lincoln cared more about the truth, than he did about winning a particular case. In fact, if he thought the truth was against his client, then he would always try to cajole a settlement. … He had prodigious powers of persuasion though folksy storytelling, but could not bring himself to use these powers if it meant straying from the truth.
According to Mark E. Steiner, in his book An Honest Calling: The Law Practice of Abraham Lincoln (Northern Illinois University Press, 2006):
Mr. Lincoln’s strongest ally was truth. Without it, he was virtually defenseless, according to fellow lawyers in Illinois. Lawyer Samuel C. Parks wrote that “at the bar when he thought he was wrong he was the weakest lawyer I ever saw.” James C. Conkling recalled: “No man was stronger than he when on the right side, and no man weaker when on the opposite. A knowledge of this fact gave him additional strength before the court or a jury, when he chose to insist that he was right.” …
Mr. Lincoln was the fairest and most accommodating of practitioners, granting all favors which he could do consistently with his duty to his client, and rarely availing himself of any unwary oversight of his adversary. (citations omitted)
This is exactly the kind of cooperative, truth-seeking attitude that works well today for a discovery lawyer. …
Lincoln Was a Cooperator
A supposedly new creed of e-discovery is the doctrine of cooperation as articulated by the Sedona Conference Cooperation Proclamation. It is based on the realization that only by cooperation and transparency can e-discovery be performed in an economic and efficient manner. This new attitude is also mandated by the rules and case law as Judge Grimm has persuasively shown in Mancia v. Mayflower Textile Services Co. …
There was no code of ethics or even bar association in Lincoln’s day, but every lawyer knew they had a duty to cooperate and duty of candor to the court. The lawyers would meet from time to time to remind themselves of these duties. It was at one such meeting that Abraham Lincoln spoke these now well-known words:
Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opertunity [sic] of being a good man. There will still be business enough.
Lincoln, Abraham, Notes for a Law Lecture (July, 1850).
These duties are now embodied in many ethical codes. Litigation has never been about winning at all costs, any more than discovery has been about hiding, rather than disclosing the truth. Lincoln knew it and practiced it. That is why he would have no trouble at all with this supposedly new and radical trend of cooperative discovery. …
Lincoln Was Diligent
Lincoln’s primary advice to other lawyers was diligence. That was his personal philosophy of excellence as a lawyer, a technologist, and finally as President of the United States. Again, this is how Lincoln began his Notes for a Law Lecture:
The leading rule for the lawyer, as for the man, of every calling, is diligence.
The duty of diligence is also at the core of e-discovery. … Many have recognized this, including Judge Shira Scheindlin, who, in Zubulake v. UBS, 229 F.R.D. 422 (S.D.N.Y. 2004), articulated … that outside counsel are required to make certain that all potentially relevant electronic data are identified and placed “on hold,” and went on to specify that:
To do this, counsel must become fully familiar with her client’s document retention policies, as well as the client’s data retention architecture. This will invariably involve speaking with information technology personnel, who can explain system-wide backup procedures and the actual (as opposed to theoretical) implementation of the firm’s recycling policy. It will also involve communicating with the “key players” in the litigation, in order to understand how they stored information.
I call this the Zubulake duty and note that it is universally followed by all districts courts that have considered the issue. This duty scares most litigators today for a variety of reasons. …
To a diligent technophile like Lincoln, it would have been a joy and you know he would have been good at it. …
If Abraham Lincoln Were Alive Today, He Would Be a Great e-Discovery Lawyer
Abraham Lincoln had the perfect temperament and mind for an e-discovery lawyer. He loved technology, new inventions, and understood the importance of writing and communications. More importantly, he was a tinkerer himself. … Abraham was also cooperative by nature and focused on the discovery of the truth as the best way towards justice. …
Finally, Lincoln was a generalist. He loved and practiced in all areas of law. So too is a discovery lawyer. We do not care what the case is about, nor the particular field of law. Our job is to uncover the relevant facts and do it as economically and efficiently as possible. …
Yes, if Abe were alive today, he would be a great e-discovery lawyer. In the meantime, we can all try to improve by emulating his moral qualities and fresh, inquisitive mind. As Abe himself was fond of saying: down with the Old Fogies; it is young America’s destiny to embrace change and lead the world into the future.
