by Cary J. Calderone
For this post, we will once again look at differences between attorneys and IT people and describe those times when a technology consultant might be more help than your lawyer. As DredLaw readers have learned, on legal points, your lawyer is the final word. But, when it comes to organizing and managing your computer data, is your legal department or law firm the best source of advice? Although I have a unique background with both law and technology experience, most lawyers do not. As one frustrated attorney told me, "They do not teach computers in law school." At a recent Legal Roundtable a speaker started to rave about a "new" product, Index Engines, (covered here) that could really help pull relevant e-discovery from backup tapes, without having to restore the entire tape. Sounds great but, "new?" I mentioned it on this blog in the summer...of 2008, almost 3 years ago. It is not even "newish" technology. When I mentioned this to the speaker he claimed, "It is new technology to this crowd."
Attorneys and law firms are trying to learn more about technology quickly so they can help their clients be litigation ready, or, better respond, once litigation has started. However, there have been quite a few problems because in far too many cases, lawyers do not know what they do not know. Smart litigators routinely digest very massive amounts of law and facts to prepare for trial. Sometimes they do so in only a few weeks and by the time they are in front of a judge and/or jury, they sound like life-long experts. However, technology, and the language around technology, is more like learning to speak a foreign language, and you simply cannot become fluent in a matter of a few weeks.
In my work, I seldom come across attorneys who are geeky enough to understand most corporate IT structures and data flow. So how are they supposed to understand what to ask about your data? How can they give you best practices to stay prepared? There is a reason there are so many eDiscovery companies assisting as go-betweens for the law firm and litigants. And, this trend is probably not going to change, no matter how many companies consider moving eDiscovery in-house, or law firms evaluate the potential profits by providing the service themselves.
At the same time, there is a still a need for every attorney to learn enough to handle some small-case basic eDiscovery principles, even if they do not require learning it in law school...yet!