As a profession, we’re haunted by the specter of our incompetence with technology. We should be. For too long, we’ve clung to our Dictaphones, been duped by elementary phishing attacks, and failed to understand the meaning of “reply‑all.”
These “goofs” of the technically inept are becoming increasingly dangerous in both our businesses and our client representations. You hardly need to mention the threat of data breaches or e‑discovery sanctions to send chills down most lawyers’ spines. And the problem won’t be solved by an influx of younger attorneys who exchanged their pacifiers for iPads. In my personal experience, I’ve found many tech dunces actually to be in the ranks of the younger lawyers.
What are we do to? Who is going to save us from our troubles with technology? The answer is simple: Hire lawyers with technical smarts and reward them for their contributions. The tech-savvy lawyer need not have the ability to write programs in assembly language or understand x86 chip architecture. The main components of tech savviness are curiosity and accrued knowledge on how to get the most out of computers.
But I emphasize that these tech saviors must be lawyers; part of our technology problem stems from pervasively outsourcing solutions to vendors and consultants rather than developing skills ourselves. Even partners must grasp the importance of tech issues and understand the methods by which we’ll achieve the best results.
Another suggestion: Be careful about lawyers who proclaim “e-discovery” expertise. Often times, such lawyers know less than they realize about the “e” part of e-discovery, and instead focus almost exclusively on case law, buzzwords and hiring their favorite vendors. Rather than running to a vendor for help, e-discovery counsel should have the skills to perform 95 percent of the e-discovery process in ordinary cases themselves. The remaining 5 percent includes tricky things that counsel generally shouldn’t perform, such as forensic analysis.
What are some characteristics of the truly tech-savvy lawyer? To begin with, this lawyer is fascinated with and passionate about technology and the role it plays in our profession—both as an instrument of greater efficiency and a paradigm shift in the ways we litigate cases and think about evidence. She has no fear of tech, enjoys experimenting with new tools and technologies, and solves computer problems with a Google search rather than a call to the help desk. (In fact, this lawyer probably isthe help desk already.) She is a magician in Word and Excel. (If a lawyer can’t get the most out of these tools, then good luck with more complicated ones!) She has written some code. She has a strong tech vocabulary and probably knows about things like metadata, encryption and relational databases. Nevertheless, we should recall that there are many different colored belts on the pathway from novice to ninja, and in a year or two, the dedicated beginners may be more valuable than the fading masters.
Let’s now consider the benefits that the tech savvy lawyer – consultus technologicus – can bring to her firm and clients. These benefits can be roughly divided into two primary categories: those related to client outcomes and those related to the business of law. Let’s start with the first: how the techno lawyer gets better results for clients.
It’s not an exaggeration that we live in a very different world than the one that existed just two decades ago. In the 1990s, we used stamps and made calls from landlines! Today—unless we forcefully unplug ourselves from the all-encompassing internet to camp on a salt flat in Utah—we’re generating and consuming massive quantities of digital information with every step down the sidewalk.
Aside from the interesting sociological questions raised by these developments, lawyers can’t help but notice that the new world, properly understood, entails a fundamental shift in the way that litigation should work. The day is coming when witness testimony—that stew of faulty memory and over-preparation—will be irrelevant, or nearly so. Already, Florida-based attorney Ralph Losey writesthat he would choose e-discovery over depositions if he had to make a choice, and I agree with him. After learning how to dig for electronic evidence and how to force the other side to give it to me, witness testimony became almost irrelevant because emails, texts, images, metadata and databases revealed the truth of events with photographic precision.
The tech-savvy lawyer knows how to get the good evidence, both from an adversary and from her own client. The stakes couldn’t be higher, and both bar associations and judges are cracking down on lawyers who fail to take account of the evidentiary implications of the Information Age.
The stakes are just as high in the business of law. Tech-savvy lawyers can realize tremendous gains in law firm efficiency. While the cost of inefficiencies can temporarily be passed on to clients (and perhaps even capitalized, to a degree), this doesn’t last long. Clients eventually ask why a secretary spent twelve hours printing documents and manually redacting them with a Sharpie when she could have been redacted them in one hour using Adobe Acrobat.
And then there’s security. Law firms are the perennial dupes of hackers. According to security experts and the FBI, “law firms remain a weak link when it comes to online security.” There’s usually a lot of low-hanging fruit when it comes to improving security—installing operating system (OS) upgrades, utilizing two-factor authentication and training users to spot phishing attacks. Techie lawyers ensure that this fruit gets harvested, and they’re always on hand to train other lawyers and staff in best practices.
All things considered, no amount of preaching by tech converts (or resistance from Luddites) will stop the inevitable rise of the tech savvy lawyer. Some firms will move faster than others, and some lawyers will invest more time in enhancing their tech expertise. Those who catch the wave of rising tech will be the beneficiaries of their own skills, and they’ll bestow wonders on their clients, firms, and colleagues alike.
Jeff Kerr, a former litigator, is the CEO and co-founder of CaseFleet. Contact him atjeff@casefleet.com.
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