In 1985, Robert Calvert wrote and recorded a song “Ned Ludd,” which says:
The year of 1985 was the year of the Polaroid, original Macintosh computer, and the digital Casio Keyboard. In 1985, Nintendo was shipped from Japan to the USA and revolutionized gaming. We also got a glimpse of Windows 1.0.
So, with so many amazing technological advancements, why were people singing homages to Ned Ludd?
Ned Ludd, for those who don’t know, is the person who gave Luddites their name.
In 1779, Ludd supposedly broke two stocking frames in a fit of rage. Thereafter, any and all violence by 19th century English textile artisans who protested against new, labour-saving machinery—the Luddites—was blamed on Ludd (read more on Wikipedia here).
Luddites hated technology. They fought against the Industrial Revolution. In the 1980s, the computer boom, like Calvert’s song, was experience a minor backlash of critism. Today, we are witnessing the same.
But, are lawyers Luddites?
That has been a frequent topic of conversation of late, particularly since the recent amendment by the ABA House of Delegates to Comment 8 to Model Rule of Professional Conduct 1.1 on Competence. The phrase (in bold italics) below was added to Comment 8:
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 relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.
The Lawyerist featured an article in December 2013 titled, “Luddite Lawyers Are Ethical Violations Waiting to Happen.”
The article’s author, Megan Zavieh, comments, “During my first year of law school, we were not allowed to do computerized research. Instead, we were taught to use the leather-bound reporters, Shepherds, and treatises. It was only during our second year that we were deemed worthy to use Westlaw and Lexis to ‘confirm’ our book findings. (Of course, I doubt any of us ventured into the stacks again.)”
“This approach reflected the general attitude of the legal profession in the mid-to-late 1990s.”
Of course, the 1980s and 1990s for law and technology look nothing like the legal practices of the 21st century. “In 2013, email is ubiquitous, and just about every lawyer has some form of electronic research available on his laptop, tablet, or phone. And everyone—lawyers included—uses Google to find everything else,” writes Zavieh.
“In law practice, that includes research on witnesses, opponents, judges, and anything else not found in a Fastcase, Westlaw, or Lexis database. Technology is an unavoidable part of practicing law.”
The Lawyerist article is powerful, citing case precedent where technology—including “reasonable efforts” to conduct online searches during jury selection or considering the inclusion of social networking sites in due diligence as part of a “matter of professional competence”—has entrenched itself in courtrooms and cases.
Being ethical now requires lawyers to be technological. So, what does that mean for your firm?
First, “old-school” partners can no longer shun firm training sessions on legal services software. “The age of the law firm partner who can’t remember what Facebook is called, or who asks his secretary to print out his emails, or who goofs up a video conference during trial, is past,” Zavieh reminds us.
Second, new associates should be tested on their technological knowledge before being hired. Always.
Third, your firm might reconsider how it conducts its due diligence, and disseminate technology-friendly policies.
Fourth, your e-discovery software should be state-of-the-art.
Fifth, your IT department should circulate monthly memos on the top tech trends and how to incorporate them at your firm.
Sixth, your younger associates should keep track of technology-related legal precedent and what it means for important case matters.
Finally, if you’ve rejected any of these simple steps toward streamlining technology into the day-to-day operations of your firm, it’s likely you’re a Luddite. And, these days, Luddite lawyers are about as outdated, un-recruited, and under-performing as 19th century looms.