eLitigation – Training Future Litigators for the Profession They Will Join
In March 2020, the Covid-19 pandemic changed our legal world the way no one could have imagined. Our courthouse went from a beehive of litigation activities to a silent graveyard. Practice directives containing emergency measures were issued and activated to deal with the change. Our civil litigation system that historically relied on an in-person process to undertake almost every task – from the filling and service of litigation documents to routine chambers applications and trials – suddenly moved to the online world built on technologies.
The legal profession was forced to adopt technologies to address administration and litigation needs at an unprecedented pace. The Covid-19 pandemic radically changed the way we practice and conduct litigation, and it appears from all indication that the change is here to stay. For law schools entrusted with the “sacred” duty of educating and training future lawyers, the most noticeable response to this change was a quick transition from in-person to online (or hybrid) methods of instruction. However, it should go beyond that to include a reform of the existing curriculum to adequately prepare law students for the legal profession in a post-Covid-19 world. As a civil litigation professor with a background in legal technology, my response during this crisis was to develop a new course designed to train future litigators with skills and competence to commence and conduct litigation electronically, and with minimal in-person contact – Welcome to Law 693 – eLitigation at the University of Calgary Law School!
The ‘old [law] school’ curriculum
The legal profession is traditionally conservative and naturally resistant to change. The institutions that train our legal professionals—including the law schools—are part of the resistance. Canadian law school curriculums which were outdated even before the Covid-19 pandemic continues to be touted as relevant. The need for reform of Canadian law school curriculum to meet the demand of modern-day lawyering was evident even before the Covid-19 pandemic. In 2014, Ian Holloway wrote a very important piece in the Alberta Law Review titled “A Canadian Law School Curriculum for This Age” where he noted a fundamental problem with legal education in Canada as evident from the state of Canadian law school curriculum. Highlighting this problem, he stated:
The problem, though, was that the lives of law schools in Canada were increasingly divorced from the realities of everyday working lawyers. The breach was never complete, but less and less did law schools use as their guide for innovation the extent to which it better prepared their students for the profession they were about to join. (at 789)
Holloway was of the view that legal education in law schools should be aimed at adequately equipping law students for the legal profession they will join upon graduation. To meet this objective, it is important to consider the state of legal practise today, to be able to predict (with a higher degree of certainty) what that state will be tomorrow, and then to modify and adapt the existing curriculum to equip students accordingly. This is further evident from the fact that the legal practice is changing at a very fast pace, hence law school curriculum must keep pace especially in the light of the drastic change that has been thrust upon the profession by the Covid-19 pandemic, and that will continue to be thrust upon the profession even post-pandemic.
To be clear, technology is changing the practice of law and will continue to exact the most fundamental change than any other force in the history of the profession. Even the most extreme legal tech sceptics would agree that the fallout of the Covid-19 pandemic will enshrine systemic changes that will impact the relationship between technology and the administration of Justice. Technology is changing and will continue to change the practice of law especially in the area of litigation. The growth of information technology and its forced incursion into litigation practice by the Covid-19 pandemic has necessitated a changed approach to our teaching of civil litigation at the University of Calgary.
The eLitigation Course
The eLitigation course at the University of Calgary law school was designed in response to the Covid-19 pandemic and the social distancing realities that came with it. But more so, it is designed in line with the Calgary Curriculum which places our law school at the forefront of innovation in legal education in North America. The eLitigation course seeks to introduce students to the practice of litigation in the era of physical distancing. The intent is to develop the knowledge and practical skills necessary to initiate and conduct litigation using electronic technology, and to foster specialized competence in the commencement and conduct of civil proceedings virtually. The scope of the course will cover electronic filing and service of litigation documents (eFiling/eService). At the end of the course, the students should develop some expertise with the use of the Federal Court eFiling system and many other provincial court efiling services.
A substantial part of the course will cover the conduct of electronic discovery and the exchange of documents relevant to litigation (eDiscovery). We will rely on legal industry professionals especially in the field of electronic discovery to train the students on the conduct of document discovery in a digital environment. We are currently reaching out to major Canadian eDiscovery firms/service providers to discuss possible summer studentship/internship opportunities for the students to further their practical knowledge and experience in eDiscovery.
The scope of the course will also cover pre-trial questioning/examination of parties and witnesses using virtual technology (eQuestioning) as well as the conduct of hearings/trials virtually using electronic technology (eHearing/eTrial). The course will consider substantive and procedural laws (and related jurisprudence) relevant to litigating in a digital environment. It will also examine professional responsibility issues related to litigation in this environment. In line with our law school’s experiential approach to legal education, the course will present a structured hands-on training designed to familiarize students with legal and other technologies relevant to litigating in a digital environment including artificial intelligence technologies used in eDiscovery document review and will culminate in virtual mooting (eMooting) conducted by student teams before a sitting judge or a trial lawyer.
The practice of law and litigation has changed. The teaching of law and litigation must also change accordingly. As law teachers, we must train our students for the profession they will join (and not the one we joined), and that profession will be radically different from the one we joined. It will be an innovative legal profession built on legal technology.
—
Gideon Christian,
Faculty of Law, University of Calgary
This eLitigation course appears to be well-thought out and quite practical. However, while the students are being equipped to navigate and utilize the virtual world with these skills, is there also a need to ensure that the students will also be able to do the same in the “real” world? Should there be a balanced approach to such teaching? Or, will the other courses in the curriculum serve to equip the students for the real world and real world interactions?
Here’s another needed e-Litigation “teaching forefront of innovation”—competence re electronically-produced evidence.
1. Because almost everything that we do now is based upon some electronic system or device, that is what produces most of the evidence used for legal proceedings and legal services; e.g., electronically-produced records are the single most used kind of evidence; and also frequently used is mobile phone tracking evidence because we all carry cellphones, and the call-data they produce can locate us at the time of any call or text message; and equally depended-upon are TAR devices for e-discovery’s large document review volumes, as are breathalyzer devices for impaired driving and “over-80” prosecutions.
2. But the technical literature warns that we trust such electronic sources most often without adequately challenging their ability to produce reliable evidence; e.g., 95% of the messages received to re-start your computer to make updates operative, contain corrections to errors in the software source code upon which our e-systems and devices operate. One standard used to estimate error-frequency is: 25 errors per 1,000 lines of software source code written. Why such error rates: (1) it’s a very complex technology; (2) no legal infrastructure controlling its manufacturing; and, (3) commercial-production is a very high-pressure rush to get products to market ASAP.
3. Such states of technical ignorance is particularly true of lawyers. It represents a big hole in our legal education and experience, which results in inadequate preparation. Saying, “if it’s not in the case law, it isn’t a problem,” is, for example, a recipe for sending accused persons off to life imprisonment without having taken advantage of the opportunity “to make full and defence” by challenging the reliability of such sources of evidence. If lawyers don’t raise the issues, they won’t be in the case law because, judges must decide cases on the basis of only the evidence and argument that is presented to them.
4. But because they do so much for us with such convenience and sophistication, electronic systems and devices are very complex technology—most often based upon 10’s of millions of lines of software source code—and it is fast-changing technology due mainly to commercial competition producing new products of greater capability and complexity at great speed.
5. It is not possible to teach law students and lawyers about all of the latest versions of all of the electronic systems and devices that produce very commonly used types of evidence as part of a single course. The most that an instructor or conference presentation can do is to make them aware of the evidentiary issues. But making them aware in detail of the great varieties of vulnerabilities, safe-guards, complexities, differences, published standards, and speed of significant changes in such applications of electronic technology requires continuous study—a study for which lawyers do not have the time or training. But lawyers need to have this kind of information if they are to protect their clients, both in and out of court, by being able to adequately challenge the ability of such sources to produce reliable evidence. “Electronic” means software, and software contains errors in its manufacturing, usage, and maintenance.
6. There is a need for a new type of specialist lawyer—the legal research lawyer. Even without this problem of knowing enough about evidence from electronic sources, the volume of law, complexity, legal literature, the speed of change of law, and all of the paper and electronic sources for doing legal research, taken cumulatively, justifies law societies’ creating such a specialist lawyer. And as part of his/her specialist knowledge, knowing enough about such electronic technology to be able to advise other lawyers. But that requires that they be made available via centralized, high volume, very cost-efficient, support services, and at cost, and, that each legal research lawyer specialize in only one or two major areas of law.
7. Consider: most criminal law and family law cases are not serviced by specialist lawyers. But electronically-produced evidence is now part of all types of litigation, big and small, complex and simple, routine and rare, because such electronic systems and devices are a large and very frequent part of everyone’s life now. Therefore, such support services are necessary, otherwise law societies will not be adequately maintaining lawyers’ competence.
See these articles by me, Ken Chasse. They are listed for linked download at this source: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1398484 .
(1) “Electronic Records as Evidence” (SSRN, January 1, 2020);
(2) “Challenging Electronic Systems’ and Devices’ Ability to Produce Reliable Evidence” (SSRN, January 1, 2020);
(3) “Guilt by Mobile Phone Tracking Shouldn’t Make ‘Evidence to the Contrary’ Impossible” (SSRN, October 13, 2016); and,
(4) “Technology, Evidence, and its Procedural Rules,” (SSRN, Oct. 1, 2018).