Earlier in June, Magistrate Judge John Facciola, well-known for his rulings on e-discovery issues, in a presentation to federal practioners, stated that "..that all attorneys must educate themselves about technology in order to meet their ethical obligations to clients." "The notion of just hanging a shingle and not taking time to understand the technology runs afoul with the (ethics) rules.”
This has been a recurrent theme at the many e-discovery programs by judges and expert practitioners and software vendors. But Judge Facciola went on to discuss another area of inadequate knowledge and training, much closer to every day practice. He cited the work of D. Casey Flaherty, corporate counsel at Kia Motors America, in requiring outside lawyers to have their basic digital skills tested before they would be hired as outside counsel for his company.
His motivations was not to embarrass the candidate lawyers. But rather to ensure that KIA as the client was not having to pay for significantly inefficient work that was produced by inadequately trained lawyers. The technology audit consisted of four mock assignments using standard office software. Most of the attorneys tested did not do well in his audit. Time spent to carry out the assignments was multiple times what a knowledgeable user would use. At $200 - $400/hr., that could mean unnecessary fees to be paid by the client.
Shifting to the law school environment, Georgetown Professor of Legal Research and Writing , Kristen Konrad Tiscione, undertook her own survey of Georgetown law gradutes on what methods they actually used in communicating with their clients. The results confirmed for her that the traditional memorandum was used much less frequently. Advice to clients was more likely carried out via email, letter, telephone or in person. "Whether or not LRW courses continue to teach objective legal analysis through the traditional memorandum format, the survey suggests that, at a minimum, these courses acknowledge the newer modes of composition being used by practicing attorneys." She observes that the shift from paper to electronic communication in the legal profession, creates new teaching opportunities and responsibilities for law school teachers.
These observations and recommendations by judges, in-house counsel and law school teachers, all speak to the need for much more training in traditional and emerging digital skills for current and future lawyers. In the case of Mr. Flaherty's skills audit, he has teamed up with a company called, Capensys Ltd., to provide the type of training that will fill the apparent gaps in the digital skills of many practicing attorneys.
The company has created a web-based version of the technology audit but is also providing matching online e-learning tutorials that can be used by legal staff to remedy their identified deficits. Capensys's approach allows targeted training for all types of users. It uses a blended learning approach that includes e-learning, including just-in-time materials and classroom time. There is also a tool that uses a series of questions re. work tasks and style to generate a series of tailored training recommendations. Services have also been designed for small and medium firms.
This emerging area of legal training for attorneys could also probably be taken up by law schools. Perhaps in partnership with the college IT department. Training could be incorporated into the curriculum, including legal writing. Sessions for working lawyers could be offered with CLE credit by some law schools. With the substantial contraction in law school attendance, this could be a welcome addition to services the law school could provide.