When 19th-century English artisans, known as Luddites, protested against textile manufacturing technology, they held a similar stance to that of 20th-century lawyers – both groups feared the technology might start operating.
Just as the Luddites had to adapt, the lawyers have to adapt, and the law school is the starting point.
At the Association of American Law Schools (AALS) Annual Meeting 2020 in Washington, DC, the Faculty of Law gathered for a panel discussion: The task of technology competence: Understand the standards and prepare our students, The discussion was timely, as technology expertise for lawyers in 2020 is not a luxury or an additional summary, but an ethical requirement in many countries.
Where's the beef?
When the American Bar Association (ABA) changed comment 8 in rule 1.1 on lawyer competence in the ABA Code of Conduct in 2012, the reactions ranged from "Well, I think that's a good start" to "Where's the beef?" lukewarm response was based on the fact that the provision in the comments was buried with no real regulation or enforcement.
The 2012 change provided:
In order to obtain the necessary knowledge and skills, a lawyer should be kept informed of changes in the law and its practice. including the benefits and risks associated with each technology, further education and training and comply with all legal further training regulations to which the lawyer is subject. (Emphasis added.)
The naysayers, who wondered whether ABA's move in 2012 would have any impact, could not predict an important development: prosecutors who follow ABA's leadership and develop their own ethical legal competence requirements.
The ABA provision can be buried in a commentary, but today 38 states have changed their own ethical requirements, and other states have introduced ethics advice on lawyer technology skills.
In the area of e-discovery, the State Bar of California's official statement 2015-193, for example, provides the following: “A lawyer who lacks the required competence for e-discovery topics has three options: (1) Obtaining sufficient knowledge and skills required before the service is rendered; (2) work with or consult technical advisors or competent advisors; or (3) refuse to represent the customer. "
The role of the law school
The AALS Attorney Technology Competency Program was moderated by Hari Michele Osofsky, Dean of Penn State Law. In addition to her role as a professor of geography, Osofsky, as dean of the Penn State School of International Affairs, is a potential indicator of what is commonplace in legal education.
The panelists Ulysses Jaen from Ave Maria School of Law, Emily Janoski-Haehlen from University of Akron, Aryan Kushan from Washington College of Law at American University, Susan Nevelow Mart from University of Colorado Law School, Damien, participated with Osofsky Riehl from Fastcase Inc. and Gabriel Teninbaum from Suffolk University Law School.
The audience played an active role in the round table discussion, and one of the audience participants was Carolyn Elefant from Carolyn Elefant PLLC, a long-time lawyer for technology lawyers and author of the My clapboard. A blog focusing on small companies and solo practitioners.
Elefant pointed out that with our newly discovered attention to the expertise of lawyer technology we could stand behind the curve.
"I wouldn't have a law firm if I hadn't used technology for 20 years," said Elefant. "This is something that should have been done so long ago."
Fastcases Riehl agreed with Elefant on the need for practical practice technology.
“What Carolyn is doing is essentially legal practice for the 2020s. We have taught technology legal clinics, but we should learn how to use slack and standard tools. "
Of course, not all lawyers believe that the law school should become a Slack school. William Hamilton, professor of law at the University of Florida Levin College of Law and executive director of the Law School's e-discovery program, is to some extent an advocate of technology.
Hamilton warned in connection with the legal training at the Relativity Fest that the law faculties must integrate technology and legal skills. "For example," said Hamilton, "at UF Law we don't just teach a variety of relativity functions, but how to use relativity functions to do a legally acceptable search."
How “practical” should legal training be when it comes to technology?
The panel agreed with Riehl from Fastcase that practical software knowledge is required. However, Susan Nevelow Mart of the University of Colorado warned that learning how to use software is a risky path.
Teach the tools
Mart noted that search algorithms are created by people who bring their own decisions into the process, which gives algorithms an inherent bias that affects search results.
To illustrate this point, Mart conducted a study with numerous legal research platforms, including Casetext, Fastcase, Google Scholar, LexisNexis, Ravel and Westlaw. She performed the same 50 natural language searches in limited jurisdiction databases with only reported cases. They use the same data pool.
You'd think she would get exactly the same results anyway, wouldn't you?
It didn't turn out that way. Not even close.
Mart from the University of Colorado looked at the top 10 search results that most people do. She looked at 3,000 results. Over 40 percent of the cases in the top 10 were specific to the respective search platform. They didn't match at all. In addition, 78 percent of search results were unique across LexisNexis and Westlaw.
"Your search results are not unbiased. This is a shock to students who are used to searching Google for everything they need.
Not only is it important to understand the inherent weaknesses of the tools, but also to learn how to use them effectively. Understanding the properties of an airplane doesn't help much if you don't know how to fly it.
The American Aryan Kushan, who is a training manager at the University's Office of Technology and an associate professor at the law school, notes the problems with using basic search technologies.
"With the" Google generation, "90 percent of searchers only go through the first page of search results," added Kushan, "and of those 90 percent, only 50 percent go beyond the third result."
Penn State's Osofsky believes law schools have a role in teaching future lawyers for both advanced and basic technologies.
"When we opened our virtual state-of-the-art legal tech lab in Penn State, we focused on artificial intelligence, machine learning, cryptocurrency, and blockchain – things that changed legal practice and raised big, current legal problems," said Osofsky. but then she said they had a knowledge.
"We found that many of our students came to the law school with no basic knowledge of Microsoft Office and no knowledge of creating PDF files – basically tech that they'll need in practice."
The panel agreed that lawyers are required to switch from the most basic technologies to the most advanced new technologies that new lawyers need to succeed. Different law schools approached the challenge in different ways.
Space Age Law School
As mentioned above, Penn State launched its Legal-Tech Virtual Lab, but they're not the only ones.
Emily M. Janoski-Haehlen, deputy professor, deputy dean and director of the law library at Akron University, took Akron's initiatives on artificial intelligence and Gabriel Taninbaum, professor at Suffolk University Law School, noted Suffolk's efforts at technology literacy, where he served as director of Institute for Legal Innovation and Technology serves the Faculty of Law.
In addition to enthusiasm for the law degree courses that bring students to the forefront of emerging technologies that change the world, Ulysses Jaen, director of the law library and associate professor at Ave Maria, expressed concern about the impact on law school lawyers.
"If you don't understand how it works, you will be trapped and I think artificial intelligence is very dangerous."
David Horrigan is Discovery Counsel and Legal Education Director at Relativity. As a former reporter and editorial assistant at The National Law Journal and analyst and counsel at 451 Research, he is also a member of the Legaltech News Editorial Advisory Board.