Technology and the Practice of Law: A Necessary Union
The Bencher—November/December 2018
By Judge David W. Lannetti, Katherine M. Lennon, Esquire, and Micaylee A. Noreen, Esquire
Although the practice of law is continually evolving, in recent years that evolution has extended beyond modifications of the law itself to a fundamental shift in the way attorneys execute their craft.
The underlying catalyst for this change is the prevalence and efficiency of technology. Attorneys can communicate instantly with clients and colleagues through email, text messaging, and other electronic means. Cases and statutes are accessible with the click of a button. Modern courtrooms are equipped with easy-to-use audiovisual technology previously feasible only in cases with a budget sufficient to hire a courtroom technology specialist. Modern technology also provides new resources for attorneys to persuade judges and juries. Given this innovative environment—and the emergence of associated rules and ethical obligations—it is imperative that attorneys acknowledge, understand, and integrate technology into their practices.
Technology Changing the Everyday
Many aspects of an attorney’s everyday legal practice have been altered by technology. Perhaps the most prominent change has been the advent of instant communications. Email and cell phones have become so commonplace in the practice of law that not using them is the rare exception. Like many forms of technology, this comes with both positive and negative implications.
The use of email has greatly increased the efficiency of legal practice. No longer must attorneys wait days or weeks for a client or opposing counsel to produce boxes of documents in the mail. No more phone tag in an attempt to negotiate. No more limitations to communicating—or filing pleadings in some jurisdictions—only during work hours. Additionally, the email copying feature allows simultaneous communications to all necessary parties without the need for separate or duplicative copies and cover letters.
Of course, with most positive changes come new concerns, and instant communications are no exception. Clients expect attorneys to be more accessible and respond more quickly. Email etiquette “requires” a prompt response, within 24 hours according to many, providing less time for lawyers to contemplate and reflect on their communications. Nearly every legal professional is familiar with someone who sent an email that was subsequently circulated among a large group of attorneys or that went viral because it contained either a blatant error or an inappropriate response. Attorneys must take the time to consciously verify that emails are transmitted to the correct recipient, convey an appropriate tone, and are likely to be understood as intended—free of the author’s subconscious emotions.
An additional concern accompanying ubiquitous technology is its impact on work-life balance. Before email and smart phones, the window of time for professional productivity was limited. Client phone calls typically were scheduled in advance and occurred during normal business hours. Emails were expected to be read only when attorneys were at their desktop computers and not at a moment’s notice via cell phone. Simply put, modern electronic devices have increased the times and places during which legal work can be done. Attorneys can find themselves tasked with work-related issues at home, during a child’s sporting event, or even on vacation. The inability to completely escape from the workplace can become a source of fatigue, anxiety, or even depression. Therefore, it is critical that attorneys set reasonable boundaries between their work and personal lives to facilitate an emotionally sustainable and satisfying legal practice.
Technology and the Art of Persuasion
Effective advocacy involves the art of persuasion. In the courtroom, attorneys are tasked with convincing the fact finder—whether a judge or jury—that their version of the facts is the most believable and that their interpretation of the law supports their desired outcome. Great strides have been made in recent years to incorporate technology into courtrooms, and use of this technology can enhance courtroom success with little expense to the litigator. Whether such technology is used to facilitate the introduction of substantive evidence or to display demonstrative exhibits, today’s litigators should understand both the available audiovisual resources and the rules governing their use.
The benefits of using audiovisual equipment are not merely a matter of presentation preference or trial technique. A 2015 Washington University study concluded that individuals “given illustrative diagrams likely engage…in deeper levels of processing while listening.” Dung C. Bui & Mark A. McDaniel, “Enhancing Learning During Lecture Note-Taking Using Outlines and Illustrative Diagrams”, 4:2 J. Applied Res. Memory & Cognition 129 (2015). Research studies confirm that understanding and memory are substantially improved when information is presented via multiple channels of communication, including written, aural, and visual. See Thomas A. Mauet, Trial Techniques 139 (4th ed. 1996).
Effective utilization of technology can successfully orient fact finders to a particular position, allow for simultaneous viewing of evidence, and highlight and reinforce the most important factual and legal concepts. For instance, concise and cogent presentation slides can strengthen arguments, deliver a crisp legal framework, emphasize noteworthy details, and ensure juror attentiveness. As a result of these benefits, lawyers who fully employ available technology likely have an advantage. Technologically savvy attorneys not only have greater occasion to present persuasively, they are actually able to assist the fact finder in better understanding the case.
Although use of courtroom technology is undoubtedly advantageous, following proper courtroom procedures and evidentiary practices is still imperative. Demonstrative exhibits must be shared with opposing counsel in advance of the proceeding. Attorneys should also attempt to resolve any evidentiary objections before the scheduled hearing or trial, preferably without judicial assistance. Further, use of audiovisual aids must adhere to the same evidentiary rules applicable to all other forms of evidence. For example, some jurisdictions allow for certain evidence—such as treatises, periodicals, or pamphlets—to be read to the jury but not admitted as exhibits; hence, the importance of this evidence should not be artificially bolstered by visual publication to the jury via courtroom technology.
Of course, even if within evidentiary rules, attorneys should assess whether a demonstrative exhibit is truly necessary. The purpose of such an exhibit is to assist the fact finder in understanding and retaining the evidence presented. Consequently, attorneys should balance the risk of confusing or distracting with the rewards of a successful audiovisual presentation. As well-respected trial lawyer Thomas Mauet put it, “exhibits should complement testimony, rather than compete with it.” Mauet, supra, at 205.
Technological Competence: An Ethical Duty
An unmistakable indicator that technology has become an integral part of the legal system was the American Bar Association’s (ABA’s) 2012 modification of the Model Rules of Professional Conduct, which extended a lawyer’s duty of competence to include understanding “the benefits and risks associated with relevant technology.” State bars across the country have followed suit by adopting specific ethical rules and requirements addressing the proper use of technology. In this modern age, it seems that avoiding technology altogether is no longer an option.
While there are indisputable benefits to using technology, attorneys must be cognizant of the concomitant risks and vigilantly guard against lapses or breaches in digital security to ensure compliance with ethical standards. The mobility of today’s electronic devices presents significant and pervasive ethical concerns. The use of technology—including cell phones, laptops, flash drives, portable hard drives, Wi-Fi, and remote servers—has made it easier than ever for attorneys to carry work and client files wherever they go. Although the ability to draft briefs on the go may be convenient, there are risks in doing so. Attorneys may unwittingly divulge confidential client information by connecting to unsecured or public Wi-Fi, which exposes devices to potential cyberattacks.
Connection to unsecured servers and digital file storage space can also make attorney documents and information vulnerable to interception by tech-savvy third parties. Additionally, discovery provided digitally to other parties may contain unintended metadata, which can be mined by the recipient if not adequately protected. Although technology has made life both easier and harder for attorneys to do their jobs well, attorneys who do not take technological concerns seriously may find themselves breaching their duties of confidentiality and competence.
There are several things attorneys can do to ensure technological competence and defend against inadvertent disclosure and hacking. By establishing a personal firewall, using encryption, and instituting other digital safeguards, attorneys can properly protect sensitive client information. Attorneys who are deficient in technological knowledge may become competent by investing time to learn about technology, seeking the assistance of another attorney who is technologically competent, or employing a non-lawyer specialist to provide technological support and ensure data security.
Although the dangers associated with using technology are considerable, the applicable ethical rules go beyond protecting against technological threats. The ABA rules specifically require that attorneys also understand the benefits of technology. The legal profession has entered an era in which it is no longer acceptable for attorneys to assert ignorance of or distain for technology and refuse to use it. To effectively and efficiently advocate for clients, attorneys must be able to—and in fact are required to—employ technology both in and out of the courtroom. Technology has certainly transformed the practice of law and undoubtedly led to greater attorney productivity and efficiency. Effective use of technology improves an attorney’s chances of persuading judges and juries and therefore can play an influential role in the outcome of litigation. With the advantages of modern technology comes a responsibility, however. Attorneys have an ethical obligation to understand the associated benefits and risks. It is imperative that attorneys recognize how technology has changed or shaped their everyday practices, how it can assist their advocacy, and how to comply with the applicable ethical requirements as the technological evolution continues. u
Judge David W. Lannetti is a circuit court judge in Norfolk, Virginia, (Virginia’s 4th Judicial Circuit). Katherine M. Lennon and Micaylee A. Noreen are Norfolk Circuit Court law clerks. Lannetti is a past president and current executive committee member of the James Kent American Inn of Court. Lennon is also a member of the Kent Inn and Noreen is a member of the I’Anson-Hoffman American Inn of Court. The views advanced in this article are those of the authors alone and should not be mistaken for the official views of the Norfolk Circuit Court.