Law Schools Could Solve the Lawyer Technology Competence Problem (If They Wanted To)

Recently, I replied to a LinkedIn post by recalling the first time I heard the word “metadata” in a presidential press briefing. I wrote that, “It made my head spin at the time – more than 10 years ago.” I was engaging with a post relating the story of how Alex Jones’ legal team “accidently” turned over in discovery text messages that undermined any chance of winning a favorable damages verdict in his defamation trial.

Of course, social media entered frenzy mode and much of the mainstream media also went bonkers about this obvious discovery mistake. On some level, it’s gratifying when a complete idiot is revealed for the liar and fraud that he is.

But there’s also a teachable moment here: Lawyers still don’t get technology. And I do not understand why. Or do I?

Those of us who work or worked in e-discovery, the majority of whom did not go to law school, have taken the time to understand the rules and procedures relating to discovery. How is it that some lawyers — actual practicing lawyers — do not understand the most common technologies used in the practice of law? I’m not buying the “there’s math involved” excuse. The entire world is driven by technology today. There’s just no longer any acceptable excuse.

In August 2022, the New York State Bar Association’s Committee on Technology and the Legal Profession mandated that lawyers in New York pursue continuing legal education (CLE) in technology, including one hour of training every two years in ethical obligations relating to cybersecurity, privacy and data protection. Our friend and legal industry journalist Bob Ambrogi covered the topic well on his LawSites blog.

While New York’s new mandate is admirable, it’s not sufficient. In fact, it’s insulting to anyone who has taken the time to learn about legal technology to suggest that one hour of CLE every two years is sufficient to render a lawyer technologically competent. I’ve spent more time than that explaining to lawyers the reasoning behind e-discovery best practices. Does anyone anywhere think they can master the ethical obligations of cyber, privacy and data protection in an hour?

Two other state bar associations besides New York are also mandating such education for lawyers. It seems to stem from the American Bar Association’s technology competence pronouncement, made more than 10 years ago, which forty states have now approved/adopted. Ten years ago!

I know the legal industry tends to move slow; but this is glacial progress. And it, too, is unacceptable.

Arguably, lawyers are more technologically competent than they were 10 years ago. But frankly, Zoom meetings do not count.

Here’s the problem: No one has clearly defined technology competence. No one knows what it means.

Part of the difficulty is the technology competence can vary depending upon a lawyer’s area of practice. I think everyone appreciates that lawyers should have basic skills in word processing, spreadsheets, and managing their email inbox. But beyond that, which I hope most lawyers learn before law school, what are we talking about here? Must lawyers who work in tax understand e-discovery? Or do they just need to know how to use tax preparation software? Should an appellate lawyer understand artificial intelligence? Pick a practice area — there’s a different challenge for each.

The 2022 Future Ready Lawyer report by Wolters Kluwer illustrates a glaring incongruity in the legal industry: About one-third of lawyers believe their firm or corporation is prepared to address the importance of legal technology; yet at the same time 80% lawyers say that the increasing importance of legal technology will significantly impact them. That delta is strikingly broad.

According to the Wolters Kluwer report, in the next few years it is expected that more than 90% of corporate legal departments are going to begin asking their outside law firms about their technology capabilities.

With numbers like this, in addition to the larger question whether law schools are properly preparing students for practice, the trending demand and growth for legal technology in legal departments may signify that schools are forgetting that corporate legal drives the $400 billion legal services industry.

The most logical solution to the technology competence conundrum is that law schools need to incorporate mandatory practice-oriented technology courses into their curricula. For example, law students planning to be litigators need to take courses on e-discovery, machine learning, and artificial intelligence; students headed for corporate practice would need to understand document management systems and contract lifecycle management applications; all law students should be required to demonstrate some level of general competence in technology and computers, just so they don’t accidently give their client’s data to opposing counsel.

These are not difficult courses to develop. Every single ABA-approved law school in the U.S. has the resources to build and deliver on the promise of technology competence. The schools simply need the will to put aside the arrogant notion that law schools are intended only to teach students how to think like a lawyer, not how to use technology, and then find the strength to change their curricula to incorporate more technology-oriented courses so that when students graduate, they are not only practice-ready, but also well on their way to technology competence.

Law schools could do this almost overnight if they wanted to.

So, why don’t they?