Monday, August 11, 2008

Why Does Historical Perspective Appear to Minimize the Impact of Change?

I looked at the ACC blog on e-discovery and read Nichole Opkins’ article, Online Social Networking and Your Career: Are You Staying Ahead of the Game?, ACC Docket, July/August 2008. Both describe dramatic changes in technology and their implications on the practice of law. I had heard these before over my career. No doubt I have seen much in the way of technological improvements in my career, and I am not that old. However, I can not say that I have the impression that a great deal has changed.

Lawyers fret today about the e-mails that people write because to an large extent people treat an e-mail like a telephone call, forgetting that an e-mail lives on. I have been in lawsuits where such e-mails were problems for our case, but, people being rather similar, I was also the beneficiary of similar e-mails from the other side. I am not convinced there was a net impact on the outcome of the case, the nature of the dispute or the justice system. I have not read the University of Denver materials referred to in the ACC blog that suggests huge potential for change as a result of e-discovery—they may convince me otherwise, but I have heard such claims before.

I recall a visit to ZEROX as the guest of Bob Banks, ACC’s first Chairman, who proudly showed me a new scanner, that was huge and expensive, and gobbling up documents fed to it by a battery of paralegals. The internet was in its infancy at the time; it would be years before we would get e-mail at my company. This ability to manage and sort all these documents was touted as something that was going to dramatically change the practice of law—it did in that everyone started collecting and collating thousands of documents, where before it may have only been hundreds. We all fretted about all those documents that were now accessible.

Believe or not, for you younger folk, we even fretted about the photo-copier. For those of us who remember carbon paper, the photo-copier was viewed as something that really impaired our ability to control troublesome documents because of the ease of proliferation; it was seen a portending huge changes.

I have won cases on very rare occasions because I was able to get the smoking gun through discovery. For those of you who, like me, still admire Perry Mason, we did not prevail like Perry because we were able to whip out the document at trial in a dramatic reversal of fortune, as we were on the edge of losing. Typically, the other side has the document too and congeniality returns to the litigation. What was notable about these documents is that they were the result of simple common sense document requests you would have requested and reviewed, even if the only technology was carbon paper.

Has technology resulted in changes in the profession-certainly? Has it been as profound as we might have thought it might be? Well, there is a possible answer in a very insightful observation that Nichole quotes from the CLO of Cisco at the beginning of her article: ‘[T]he legal industry seems to be “the last vestige of the medieval guild system to survive into the 21st century”.’ Does that need to change--certainly? Is technology likely to be a significant cause of the change—it has not been to date!

Whether the huge increase in available information will create untold potential impacts that Nichole outlines or whether in the end it will diminish the impact of any single piece of information by making readers and users more skeptical, less sensitive and more demanding in terms of confirmation is not clear to me, but it is definitely worth thinking about.

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