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Thursday Thinkpiece: Eicks on Educating the Digital Lawyer

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EDUCATING SUPERIOR LEGAL PROFESSIONALS: SUCCESSFUL MODERN CURRICULA JOIN LAW AND TECHNOLOGY
Jeanne Eicks
in Educating the Digital Lawyer, Marc Lauritsen & Oliver Goodenough Eds.
Cambridge, USA: Harvard Law School Program on the Legal Profession, 2010-2011
excerpt Chapter 5, pp. 8-14

[Footnotes omitted. They are available in the original via the linked title above.]

§ 5.06 Educating the Digital Lawyer

The partnering of law and technology necessary for professional success should begin within the law school curriculum. Clearly, lawyers do not require the same level of technical knowledge as a technology professional, though sharing information and resources with technologists and expanding engagement with technology has become necessary for most legal professionals. Offering law students an education that focuses on that level of technical knowledge has become critical to guaranteeing the success of graduating students and longevity of law schools. We must integrate technology throughout the law school curriculum so that the technology revolution in the field of law may become a guided evolution informed by the core legal knowledge within the legal academy. Legal scholars will need to be convinced that technology topics have risen to the level where they must be addressed through broad integration into the curriculum. This integration will encourage legal scholars to have their experienced voices heard during this legal digital revolution, a positive outcome for both legal education and legal practice.

Some law schools have begun the integration of technology within the law school curriculum by adding a few days of eDiscovery to Civil Procedure, offering courses in the law of technology such as Cyber Law or touching upon data and communications security during Legal Profession. An e-Discovery course that addresses all of the places an advocate should seek digital data would be immediately useful to a first year associate drafting discovery requests. While a good place to begin, this preparation will not fully address the technology education required to analyze cases, laws and rules infused with technology, to make informed choices about the use of technology in practice or to use complex technical systems that are more and more part of the daily practice of law. Rather than a superficial guest lecturer involving technology once in each term, students would better engage and learn the subject matter through an education that integrates technology into each lesson—where technology discussions enrich the material being delivered.

Opportunities to blend technology into a class occur weekly in core law school curriculum as more and more cases have disputes over unsettled law on technical matters at their center, rely on technology for rapid adjudication or require technical knowledge to understand and properly practice that area of law. In a Constitutional Law course, a Fourth Amendment discussion would benefit from current examples of search and seizure that involve privacy expectations in the cloud, on computers and in digital transmissions. Full analysis of those issues requires knowledge and familiarity with the way technology works without which the interpretive distinctions in the application of law cannot be accurately presented. An Evidence course should acknowledge that people who lead digital lives create digital evidence of their actions that are governed by the rules of evidence, recall the above future attorney advising her clients on the use of social media. How to present, preserve and manage digital evidence for both civil and criminal matters will be a large portion of any litigators’ experience and should be thoroughly addressed in any Evidence course. Legal educators teaching Contracts, Administrative Law, Mediation and Dispute Resolution cannot ignore the developments in their areas that rely on technology as a core tool to apply legal principles, to interact with the judiciary and the government, to parse through an accumulation of knowledge and to reshape legal processes and procedures.

While opportunities exist in most courses to integrate technology theory into classes, legal educators should also consider the need for more skills based technical literacy labs in the law school curriculum. Students need exposure to technology beyond that which they receive theoretically through lecture or hands-on via consumer devices. A law school environment is not tailored to learning technology. With the exception of most legal research components, hands-on lab-based courses remain outside of the standard law school experience. Such courses could be a single credit skills lab attached to other required core course such as Legal Profession. The ABA Commission on Ethics suggests adding the underlined portion in Rule 1.1[6] regarding what constitutes a competent attorney: “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 technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” The addition of such language to the Model Rules of Professional Responsibility makes a Legal Profession lab a good fit for the addition of hands-on technology skills education within the law school environment.

A Legal Profession lab could be taught in a computer lab to small groups of twenty to twenty-five students so they could directly engage in material such as how to encrypt an email and wireless communication, use a word processor without leaving meta-data behind, building a marketing website, securely manage and delete client data and other basic technical skills. A graduate of law school should not have to go back and take a community college course on technology in order to practice law or lack the education necessary to have a discussion with her peers about the ethical implication of technology on the practice of law. Law students learning about privilege and confidentiality will better understand the implications of technology on those concepts through information they learned about securing data and electronic communications against eavesdropping. Hands-on lessons concerning topics such as how to digitally shred files, encrypt files and recognize privacy concerns on Facebook will make students better, more employable lawyers upon graduation. Law firms need lawyers who can implement technology innovation within their firms and understand and facilitate the appropriate vendor and technology choices for law firms. A Legal Profession technology lab would produce a solid foundation for emerging lawyers while cultivating deeper discussions in other courses. Technology labs would offer similar enrichment for Contracts, Evidence, Legal Clinics and General Practice programs.

Teaching technology related skills will mean looking outside of legal education at cross disciplinary and technology pedagogy techniques. The occasional lab or technology assignment would benefit standard lecturebased law school courses and expose students to the technical aspects of the law in a supported environment. Evidence, Civil Procedure, Torts, Criminal Law, Contracts and Property all have new technology driven components that require technical knowledge and expertise. Rather than a passing reference to technology, exercises could be assigned to enhance the legal concepts conveyed and illuminate the impact of technology on the legal matters. Pedagogically this instruction could occur through labs, online or in the classroom with supplemental exercises for students to complete at home. A formal computer lab where students attempt to use technology skills in a controlled and properly configured environment would lend itself to lessons that require step-by-step instruction or lessons on complex topics. The knowledge transfer for students who have the opportunity to practice with a trained technology instructor/professor in attendance is better than for students who attempt to learn the technology outside of a classroom setting.

Lab environments also offset the cost of individual software to students by placing the burden of software purchases on the educational institution which often receives free or very low cost trial software that may be unavailable to students. One cost conscious alternative to an institution provided lab environment would be for institutions to mandate the purchase of a single model student laptop upon admission to law school. Such a mandate would create opportunities for hands-on technical exercises and learning in any course. The scheduling and costs of maintaining labs would be greatly simplified if any classroom could become a lab environment. Online instruction that relies on students’ personal non-mandatory laptops for lessons has the most merit when teaching students how to use cloud-based services or web-based interfaces that require no additional software installation. Classroom demonstrations of technology tools can be supplemented and enhanced by take-home exercises.

For all of the distinct pedagogies that may be brought to bear on the systemic integration of technology within the J.D. curriculum, each institution will develop an approach that echoes its capacity and aptitudes. In all cases the reputation of the institution and the students’ law school experience will be strengthened by addressing technology within the curriculum. A faculty champion and the assistance of a subject matter expert will be required for successful curriculum reform. Institutions with a faculty comprised of digital immigrants may struggle to find an internal champion for the revolutionary concept of infusing technology throughout the curriculum. An internal champion may fully embrace the requisite changes that accompany the radical infusion of technology into the J.D. curriculum while lacking the technical expertise to move such reform forward. When a subject matter expert cannot be found within an institution’s faculty, an institution may choose to create a new position or hire an outside consultant to assist with supplementing the curriculum and supporting internal faculty. The subject matter expert must be well versed in both technology and the law and able to collaborate well with legal scholars. The curriculum collaboration should focus on the inclusion of technology in a way that will enhance the strengths of the institution—recognizing that this will be unique for each institution. Some institutions may choose to create a faculty position to foster the growth of technology capacity. In the same way that Legal Writing may have both stand alone courses and play a strong role in each course taken, technology will grow to amplify the J.D. curriculum.

Commentary from a 2000 bar journal article correctly predicted that law schools would adopt technology to teach law, but would follow along behind practitioners in the adoption of technology to practice law.

Of course, technology will eventually transform the way law is taught and learned, inasmuch as access to information, classroom demonstrations utilizing PowerPoint and other technologies, and familiarity with the use of computers for trial work and office practice will all change the daily routine of law school professors. But leadership comes from practicing attorneys and from students who demand that new technologies support their efforts, not from legal educators. Technology will be important, but legal education will not be the engine driving these changes; it will be the caboose.

When legal colleagues gather to discuss technology and the law, someone inevitably comments that technology cannot be allowed to overwhelm law or to direct the law. These colleagues are the same cautious types who, Richard Susskind notes in his book The End of Lawyers, spend little time addressing technology beyond simply discouraging lawyers from entering the information age.

Technology habitually moves forward with little regard to the processes (legal, business, etc.) already in place—moving forward at such a rapid rate that it creates new processes along the way and the old ways quickly become obsolete. The two professions—technology and law—are fundamentally opposite in their rate of evolution. The legal profession is built on common law and precedent, intended to create a stable predictable outcome that evolves slowly and weathers societal volatility. Technology, and more specifically information technology, changes rapidly. Adapting technology to the legal profession and legal education, which predates computers by thousands of years, requires a stable foundation of shared concepts and vocabulary as well as the adoption of technical literacy as a component of legal education.

Should ignorance be a defense with regards to the legal profession’s use of technology? Ignorantia juris non excusat is a legal principle which holds that a person who is unaware of the law cannot use that fact to escape liability due to a lack of knowledge of the law. The rule of law would fail if ignorance of the law allowed the governed to avoid responsibility. What responsibility should attorneys have to learn technology basics and stay current with technology? What responsibility does the legal academy have to educate law students regarding technology? How should the legal academy proceed to provide technical education? Throughout the legal education process, law students should be given enough technical literacy and technology skills to maintain client data with reasonable security so they do not violate their clients’ privacy and trust. Law students and all legal professionals need to learn the basics so they can embrace and leverage eGovernment, digital drafting and other innovations in the profession. Technology will continue to advance, it is up to attorneys and those whose business or profession is tied to the legal system to be engaged and actively educate themselves about technology.

The time has come for legal education to adopt technology as a necessary and vital part of the practice of law through the integration of technology theory in the core curriculum, the addition of hands-on technology skills labs and the creation of a transitional environment to support digital immigrant faculty who should be teaching technology theory within the classroom.

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