Technology Can Get in the Way of Practicing Law

Litigation Support professionals assist legal teams with the technical aspects of a litigation case. Before litigation support or electronic discovery ever existed, litigators were practicing law every day for years. Back then litigation cases consisted of collecting hard-copy documents from the client as well as exchanging hard-copy documents with opposing counsel and filing hard-copy documents with the court. It was easy enough for lawyers, paralegals and legal secretaries to figure out a workflow process to handle incoming and outgoing hard-copy documents. The process did not require any expertise beyond their legal training and natural organizational instincts.

Electronic e-mail and electronic business documents eventually entered the world of business. Within a few years, this electronic data became part of litigation discovery. In addition to hard-copy documents, more and more electronic e-mail and e-docs were being collected. For a while, litigators would print the electronic files to paper, review the documents in hard-copy and then produce them in hard-copy. Those of us in litigation support would pray for the day when we could keep the electronic data in its electronic form throughout the entire discovery process.

For the most part these days, the electronic data remains in one electronic format or is converted to another electronic format throughout the discovery process. It is widely accepted by the litigators that the electronic data can be imported into a database and easily reviewed for responsiveness. The responsive electronic documents can be produced to opposing counsel in an electronic format that can be easily reviewed post-production.

When legal teams began to receive documents in electronic format and that electronic data needed to be transferred from one media to another, converted from one format to another, imported into databases and exported from databases, and produced in very specific formats with accompanying “load files” to keep all of the pieces together, the field of Litigation Support was born. The technical aspects of these requirements necessitated an addition to the legal team who could coordinate all of the technical tasks. As you can imagine, technical geeks and litigators speak different languages. These two fields of expertise collided in a big way. However, after years of working together out of necessity, the legal team of law and technology has evolved.

There is one issue though that I have seen many times over. That is when the technology seems to “over power” or “thoroughly infiltrate” a litigation case. Sometimes the focus is so heavily on the technology aspects. Other times the electronic documents are treated like they are the center of attention because they are electronic. This can happen without the legal team realizing it. It can also happen when a litigation support professional or a “techie attorney” puts too much emphasis on the technical aspects of the case and they forget that litigators' primary goal is to litigate on behalf of their clients. Clients retain attorneys to protect their interests. The discovery process can be about the documents but it doesn't have to be about the technology surrounding those documents. Sometimes “technology can get in the way of practicing law“. We all need to remember that it is okay to go back to old school ways as a solution. Sometimes simple is the best solution and that's okay. It doesn't need to be more complex just because we have technology around us every day. We can't forget that the litigation process is ultimately about the practice of law and not about the technology.

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    • Teachblade

      This is an insightful article, on several levels.  I recall the e-discovery case involving the production of an enormous amount of e-discovery that was presented in impressive evidentiary format by the opposing party in support of its case.  However, all that glorious production was disallowed by the judge after a question and answer exchange of the bomb-shell question — who could authenticate the chain of custody of all those documents?  In all the scurry and attention to technological detail, the lawyers had forgotten the ancient-old traditional practice of designating a Custodian of Records who could later testify under penalty of perjury as to the chain of custody of all those beautifully-discovered e-documents.