This article originally appeared in Bloomberg BNA's "Big Law Business" community. Check it out here.
In 2016, as never before, “business as usual” means that fluency in technology is “table stakes” for all professionals, particularly ones that are facing efficiency and automation pressures. More crucial than efficient business practices, however, are the ethical obligations these quickly evolving technologies demand.
Although not all cases revolve around e-discovery, it is time for litigators to start preparing as if they did. Last year, the State Bar of California shared their thoughts on the matter, stating that in some cases lack of knowledge about e-discovery was tantamount to incompetence. In broader support for the need of basic technology fluency, 25 states (and counting) have adopted attorney ethics provisions linking technological competence to legal competence—incorporating language similar to what the ABA added in 2012 to the comments to the Model Rules of Professional Conduct.
Future litigators are preparing to grapple with this ethical expectation, as e-discovery becomes a fixture in law classrooms across the country. On the other side of the professional curve, active attorneys have long relied on the resources of thought leaders like the Sedona Conference and the EDRM to help fill in gaps left by sparse case law, as well as federal, state, and local rules.
Just as the need for attorneys to ratchet up their technical competency is at its zenith, the sands are shifting underneath them.
In a recent development, Duke Law acquired EDRM to bring its talent and content on board. With its comprehensive repository of practical information, the EDRM is both the creator of the eponymous reference model, as well as a defining player in e-discovery thought leadership. It appears Duke will keep the mission intact for the foreseeable future, which is welcome news for the huge number of professionals that have put EDRM resources to good use.
The move, however, underscores the fact that educational resources in the e-discovery space are malleable. If those resources can change, or even disappear, the thought leadership landscape must adapt and diversify.
Fortunately, industry tech advocates divined a solution before real problems appeared. We are experiencing a proliferation of think tanks and thought leadership groups, publishing more information with sharper focus and more diversity.
It’s exciting to see the recent changes from the thought leadership community. ACEDS seems to have new life after their sale to BARBRI and the choice to bring on the well-respected Mary Mack as their executive director. And, while the Electronic Discovery Institute (EDI) has been around for a decade, they have recently, under Patrick Oot’s tutelage, expanded their educational mandate to include judges, practitioners, and even law school students.
These groups all exist to advance the discussion and fluency of technology in the legal marketplace and they do so by connecting professionals around the country (and world) with a community of thought leaders and peers all working on similar issues. The give-and-take at conferences and in working groups allows these organizations to define best practices for legal technology applications in their range of focus.
For example, the Coalition of Technology Resources for Lawyers (CTRL) is an open-source forum focusing on legal technology issues, specifically predictive coding and technology-assisted review (TAR). The work of CTRL contributors has resulted in useful resources, most recently the 2016 Guidelines Regarding the Use of Technology-Assisted Review, a go-to reference tool on issues surrounding TAR. Also on their site is a case law wiki listing all of the TAR cases to date, valuable on demand for the professional who doesn’t have time to research each case one by one.
A key end result of missions and products like ACEDS, EDI, and CTRL is that litigators can access materials that will assist them in meeting their quickly evolving ethical duties of technology competency. The tools needed to assess and develop e-discovery fluency are open, available, and multiplying.
Digital legal practice is here. It is a fait accompli that technology solutions will continue to advance, likely at an even faster pace. The response to machine efficiency will be a more complex interweaving of ethical standards with the practice of law.
As our industry prepares for this ongoing sea change, we must encourage the diversification and growth of the thought leadership community. Difficult questions will arise, but the answers will be found as ideas proliferate and we work with one another for the benefit of all.