Is Understanding Technology A Paralegal's Job Or An Attorney's Job?
Legal technology columnist Jeff Bennion explains why lawyers need to follow technology and what they need to know about it (and what they can afford to delegate).
In a perfect world, the attorneys and the paralegals would both understand how technology works and they would work in an efficient harmony. That’s not always the reality, though. Often, we as attorneys get so busy in the practice of law that we put off following the latest technology trends. By the time we finally learn how to take an effective expert deposition, we realize that we are behind in understanding the latest in technology-assisted review or the ethical implications of cloud storage of client files, and we try to outsource those duties to our legal staff.
It’s not our fault, though — law school taught us from the very beginning to focus only on the theory of law as if practical skills never existed. Just look at the bar exam and ask yourself how many times have you or anyone you have ever known ever had to challenge POTUS’s ability to appoint major Cabinet members without congressional approval? How many of you practice criminal law and live in a state that has adopted provisions of the Model Penal Code? Those are mandatory law school classes and a good portion of the MPRE and possibly essay portion of your bar exams. On the other hand, how many times have you had to draft billing entries so they aren’t cut by the client? How many of you have had to draft a pleading and get the row numbers to match up with the lines of text or prepare a table of authorities or a table of contents or upload a document to ECF?
Undoubtedly, there are responsibilities that attorneys can (and maybe should) put on the shoulders of legal staff. But to say that the attorney doesn’t need to know these solutions at all is like saying a pilot does not need to understand wind currents, just how to get from Point “A” to Point “B.” Increasingly so, our trips from Point “A” to Point “B” are involving technology and can even be driven by technology. We’ve seen this in the last few years with the supplementing of ABA Model Rule 1.1 on Competence with Comment 8, which reads:
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To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
We’ve seen California post and repost in the last few years proposed opinion 11-0004 on all litigators’ duties to understand e-discovery concepts:
Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.
What Attorneys Must Know
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Being familiar with certain technologies can change the path we take to get things done on our cases. Mechanical things such as how our billing entries are entered or what type of software is used to OCR files can be put off on the paralegal or legal staff, but it is important that the attorney knows that these technologies exist and what impact they can have on our cases so that decisions can be made about whether to implement them. Whether the attorney is the one actually using the technology or just making the decision to have that technology used in the firm, the first step is understanding the type of technology available and its potential use and impact.
Case Management
I often consult with attorneys on best practices for managing things like electronic storage and organization of case files, using tools such as MyCase, Clio, SharePoint, or on-premise solutions. Attorneys need to understand how this works because it changes their availability to access their data and creates potential risk factors for the unauthorized access to that data. Almost every state bar has adopted a policy on cloud storage and what the attorney must do in order to remain compliant.
This category also includes software solutions for how to use your data effectively. Tools like CaseMap or Opus 2 offer solutions for organizing data along the way to use it more efficiently in the preparation of depositions, in motions, or at trial. Attorneys should be familiar with the capabilities of these tools because of the unique features they offer that allow for the streamlined organization of data. In large cases, arguments can be lost without factual backup. Having the data but not having a system for organizing it can lead to a number of consequences, the best of which is just losing your argument — and that is not a very good best case scenario. Understanding tools available for organizing data are a must.
Trial Presentation
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The attorney does not have to the one operating TrialDirector in order to understand the potential benefits that it can offer. I’ve participated in about 30 jury trials where I have operated TrialDirector for attorneys, either as co-counsel or as a trial paralegal. In about 10 of those trials, it was the lead attorney’s first time ever using technology at trial. It is neat to see how their presentation style changes as they begin to rely more on the benefits and capabilities of the trial presentation software and understand how it can supplement their trial skills. I have never had an attorney tell me that they didn’t like it very much and want to go back to the old way of doing trials with exhibit boards and Elmos. It is always an overwhelmingly positive response that leads to more questions about how they can organize their next case better for a more streamlined presentation. As I’ve pointed out before, scientific studies have been performed on jury perception of attorneys and of cases when digital media is used to present the case. Attorneys are doing their clients a disservice if they are not investigating how to take advantage of this.
What You Can Do About It
If you are overwhelmed because of decisions about which software to use in your law firm for practice management, file storage, evidence organization, or anything else, you are already off to a great start. The most important thing for attorneys is to understand that these solutions exist and then to find out how to staff your offices with people who understand how to implement them.
Jeff Bennion is Of Counsel at Estey & Bomberger LLP, a plaintiffs’ law firm specializing in mass torts and catastrophic injuries. Although he serves on the Executive Committee for the State Bar of California’s Law Practice Management and Technology section, the thoughts and opinions in this column are his own and are not made on behalf of the State Bar of California. Follow him on Twitter here or on Facebook here, or contact him by e-mail at [email protected].
