(The following blog is Part 3 in a 3-part series on Technology Competence for Lawyers. To start with blog #1, please click here.)
Two of the most important skills you need as an attorney are to be able to adequately issue spot a fact pattern while also recognizing the limits of your knowledge. Consider Comment 2 to MPRC 1.1 which states: “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.” This should provide some comfort to those practitioners who are just starting to build their technological competence. It is understood there are things you will only learn on the job, and few other professions provide as much on the job training as the legal profession.
The adversarial process, the diverse parties, novel fact patterns – every litigation, every investigation, every deal offers the practitioner a chance to refine their expertise, extend their capabilities and apply their skill set. As you put the technological concepts you learn into practice, your competence will expand as will your understanding of the gaps in your knowledge. As noted in Part 2 of this series, knowing what you know is equally as important as knowing what you don’t know. The key is how to mesh these two bodies of knowledge effectively, which brings us to the third element of building technological competence.
Element 3: Application
The pitfall with many areas of legal technology, eDiscovery in particular, is that it can be easy to overlook certain practices, techniques or strategies that could be leveraged to conserve resources, reduce costs, produce downstream benefits, provide tactical advantages and lead to better outcomes. This is why I recommend that as you begin to apply your technological competence, you do not overextend yourself beyond your skill set. As you trailblaze in the legal technology space, let humility be your ally. Lean on experts and, when in doubt, get a second, third and even fourth opinion. As you get more comfortable, there are many areas where you can apply your growing expertise and really lock in your competence.
- Your Practice: Of course, the best way to apply your expertise is through your daily practice. Consider the following tactics.
- Actually USE the Rules: We are nearing the fifth full year since the last set of eDiscovery amendments to the Federal Rules of Civil Procedure took effect. While there is still no clear consensus amongst the bench regarding the application of the Rules, there are some emerging trends. Marrying an understanding of what preservation efforts might be considered “reasonable” to avoid sanctions under Rule 37(e), or how to effectively use metrics to support the proportionality factors under Rule 26(b)(1), with a developing technological competence surrounding email, chat and collaboration platforms, emerging data sources and files types, and the efforts required for their defensible preservation, collection, analysis, review and production can be a powerful mix to build new levels of competence. Explicitly leveraging federal, state, local and hyper local eDiscovery rules will better position you to apply the competencies you have gained in the legal technology space.
- Engage the Process. Technology, eDiscovery and data management are aspects of every matter. Though you may have subject matter experts on your team, competent representation requires that you take an active role in this process: ask questions, review asset inventories, create and explore data maps, complete custodian questionnaires, understand data metrics and reports. But remember, you are not an island – these are collaborative efforts, and you must lean on your team. In addition, avail yourself of all training opportunities and apply this training to the technology yourself. CDS offers numerous training modules specifically designed to improve attorney competence with various aspects of the Relativity platform as well as a library of technology-based CLEs. We will also often let clients run a proof of concept on real case data. Applying your technology skills in the context of a live matter with an expert support team acting as a safety net can be a powerful way to further enhance your competence.
- Cooperate with Adversaries: Cooperation during matters is not just required, it is a hallmark of competence. As the Committee Notes to the 2015 Amendment to Rule 1 states, “[e]ffective advocacy is consistent with – and indeed depends upon – cooperative and proportional use of procedure.” In fact, cooperation offers a major tactical advantage as it requires significant planning. Furthermore, cooperation provides strategic benefits. It is a meet and confer process not a meet and agree The goal of cooperation is to eliminate the non-controversial low hanging fruit so that parties can really drill down on genuine disputes. In his 2015 Year-End Report on the Federal Judiciary, Chief Justice John G. Roberts, Jr., stated that federal judges, “must be willing to take on a stewardship role, managing their cases from the outset rather than allowing parties alone to dictate the scope of discovery and the pace of litigation.” He went on to state that “[t]he test for plaintiffs’ and defendants’ counsel alike is whether they will affirmatively search out cooperative solutions, chart a cost-effective course of litigation, and assume shared responsibility with opposing counsel to achieve just results.” Gaining competence in technology not only provides tactical advantages, but in the event you are facing an old-school antagonist as an opponent, technological competence is very likely to position you as the more reasonable, and potentially more successful, party.
- Volunteer: Whether volunteering your time towards an academic endeavor or committing to pro bono legal work (something as legal professionals that we all must commit to in today’s social climate), volunteer opportunities often allow you to work in close knit teams with diverse professionals and learn while you contribute. If you feel like you are lacking in substantive knowledge, make that known and contribute initially in a different way (i.e., taking notes, organizing the team, proofing drafts, etc.), while asking to shadow the substantive contributors. If you take on a volunteer opportunity, make sure that you understand and appreciate the necessary time commitment, do your homework and strive to be a true team player. These opportunities will help you build competence and confidence, and can often be the catalyst for lasting professional relationships while having a tangible, positive impact on both the legal community and society at large. One such volunteer opportunity in the legal technology space is Relativity’s Justice for Change initiative, which provides RelativityOne and related resources to organizations supporting projects that combat racial injustice. For more information on the Justice for Change program and how to get involved please visit the Relativity Justice for Change site.
- Challenge Yourself: It is important that you seek out opportunities to challenge your current level of competence so that you are actively evolving with developments in law and technology. Jason Feifer, Editor-in-Chief of Entrepreneur Magazine and the keynote speaker at CDS’s recent Putting Insights Into Practice 2021 Conference, inspired the audience when he highlighted Reid Hoffman’s concept of adopting the mindset of being in “permanent beta.” This is the concept that you are always a work in progress; it is a commitment to continuous personal growth for the rest of your life. In my experience, the most successful legal practitioners are in “permanent beta”. In 2020, I had the privilege of attending The Sedona Conference Negotiation Training, which is a two-day, intensive, interactive role-playing workshop. Even with over fifteen years of legal technology experience, I learned a significant amount from both the curriculum and the other attendees. I also recently jumped into studying for a new certification to push the boundaries of my knowledge base. This period of self-study has also been the impetus to engage and extend my professional network, branch off into new areas of research, learn a new language and focus on different topics in the news media.
Einstein said, “Once you stop learning, you start dying.” Applying that quote to lawyers might read something like, “Once you stop developing competence, you start fostering incompetence.” The Digital Age of Legal Practice requires active, voracious participation. No matter your skill level, area(s) of practice, age or position, technological competence is something you can gain – you just have to take that first step. It is never too late to increase what you know and understand what you don’t know.