University of Missouri School of Scholarship Repository

Faculty Publications Faculty Scholarship

9-2018

Let's Teach Our Students Legal Technology... But What Should We Include?

Randy J. Diamond

Darin Fox

Kenneth J. Hirsh

Heidi Frostestad Kuehl

Michael Robak

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Part of the Commons LET’S TEACH OUR STUDENTS LEGAL TECHNOLOGY... BUT WHAT SHOULD WE INCLUDE?

Five law library directors “renaissance” is often described as a cultural rebirth, a movement ushering in a modern age and leaving behind who teach legal technology the old ways of doing things. There is every indication share their thoughts that we are entering a technology-driven renaissance in and advice. the legal profession. Artiicial intelligence (AI), “big data,” document automation, e-discovery tools, cloud-based case BY RANDY J. DIAMOND, Amanagement systems, and communication and collaboration tools are just DARIN FOX, KENNETH J. HIRSH, a few of the ways that technology is transforming the in HEIDI FROSTESTAD KUEHL & MICHAEL ROBAK the twenty-irst century. Certainly, technology has played a key role in the practice of law for almost 50 years. However, there are several indicators that technology is becoming an increasingly important part of law practice. Thirty-one states now require to understand the risks and beneits of technology in accordance with Comment 8 of Rule 1.1 of the American Association

SEPTEMBER/OCTOBER 2018 | AALL SPECTRUM 23 assessment and certiication tools. Law schools will want to assess whether students can repeat a technology skill (such as legal document preparation or courtroom presentation), and law irms will want graduates to demonstrate that they possess technology skills. Assessment and certiication of technology skills has been evolving over the past ive years. Casey Flaherty was perhaps the irst to call atten- tion to this need with his technology competency audit. He developed this audit as corporate for Kia Motors to test the Microsoft Word, Excel, and Adobe Acrobat skills of the attorneys in the irms Kia planned to The Legal Technology Core Competencies Certiication Coalition hire. Unfortunately, he found that asso- ciates required ive hours on average (LTC4) is an international organization of law irms, legal depart- to complete tasks that took him thirty ments, and legal nonproits “that has established legal technology minutes. As of today, there is no clearly core competencies and certiication.” established industry leader in this area, though there are options available for law schools. (ABA) Model Rules of Professional modest number of law schools currently The Legal Technology Core Conduct. One state, Florida, has even include developing this competence as Competencies Certiication Coalition added a continuing legal education part of the curriculum.” (LTC4) is an international organization (CLE) requirement for technology, Law schools have responded to of law irms, legal departments, and similar to the annual ethics requirement this challenge with a wide variety of legal nonproits “that has established in most states; Pennsylvania and North programs designed to equip students legal technology core competencies and Carolina are also considering adding with the technology skills required by certiication that all law irms can use the requirement. modern law irms. Above the Law recently to measure ongoing eiciency improve- In addition, the professional lit- published its “Directory of ments.” A few law schools around the erature is awash with articles about Innovation Centers” in its Law2020 world, including the University of the importance of technology in the feature to highlight law schools with Oklahoma College of Law, are using practice of law. Noted legal technology innovation-focused missions. LTC4, along with its vendor partner, expert Jim Calloway summed up this In addition, the media is now recog- Capensys, to certify law students in a idea in his article “Every Law Firm nizing these eforts with various ranking variety of technology skills, including Is a Technology Business.” He notes systems and indices. In 2017, preLaw legal document preparation, collabora- that “[a]lmost everything a law irm Magazine highlighted the “20 Most tion, security, and presentations. does involves the retrieval, analysis, Innovative Law Schools” as well as the Flaherty continues to work on solu- processing, manipulating, storing, and “Top Schools for Technology and Law,” tions in this area. He recently estab- dispensing of information.” These are and Michigan State College of Law lished a company called Procertas to all tasks at which technology excels. He introduced its Law School Innovation develop a Legal Technology Assessment concludes by stating that lawyers can Index to highlight U.S. law schools that (LTA) “to assess legal professionals’ pro- choose to be Flintstones, or they can prepare students to deliver legal services iciency with the basic technology tools choose to be Jetsons going forward. in the twenty-irst century by providing of their trade: Word, Excel, and PDF.” The ABA challenged law schools programs focused on “legal-service Procertas ofers a law school edition to focus on teaching technology skills delivery innovation and technology.” of their LTA that can be implemented to law students in 2013. The ABA into technology-related courses or made Task Force on the Future of Legal Certiication and Assessment available to an entire law school. Education, in its inal report, stated that As the need for technology skills in law “although changes in the delivery of irms grows, and as law schools con- The Impact of Social Media on legal services have made competence in tinue to ramp-up programs designed to Twenty-First Century Lawyering the use and management of law- teach technology skills to law students, Social media is drastically afecting the related technology important, only a there will be an increasing need for practice of law, and attorneys should

24 AALL SPECTRUM | WWW.AALLNET.ORG anticipate the use of social media by social media and social media in doc- Electronic Communications: their clients. Further, ABA Model ument preservation letters (to clients Balancing Risk and Reward Rule 1.1 and its Comment include the and adversaries), and requesting social The wide-scale adoption of email usage requirement of technological compe- media content in document requests in the 1990s eventually found its way tence for an ethical practice. The ABA and third-party subpoenas. According to lawyers. This in turn was followed Comment notes that this encompasses to recent ABA rules and guidance on by an explosion of social media usage knowledge and understanding of the technological competence, lawyers after the turn of the millennium. Email associated risks and beneits of certain should: 1) follow employer guidelines provides an eicient and relatively low- technologies. The impacts of social on social media; 2) include appropri- cost way of communicating with clients, media on litigation and iniltrations into ate disclaimers on social media sites opposing counsel, and anyone else our domestic and world markets are used for their work; 3) stay current whom a lawyer needs to reach. Social undeniable, and areas of technological with ABA and State ethics opinions; media can be part of a lawyer’s mar- competence keep expanding to ethical 4) consider decisions on social keting eforts, helping to develop clients use of technology, e-iling, social media, media use and social media sites’ and a reputation among lawyers and prominent web presence and virtual “Terms of Service” agreements; 5) be other professionals. These e-communi- lawyering, cloud computing, courtroom professional while using social media; cation platforms introduce substantial technologies, e-discovery, and more. 6) always exercise client conidentiality; risks that were not common with using Best practices for lawyering in an era of 7) make sure LinkedIn endorsements postal mail and even fax machines. social media include informing clients are appropriate; and 8) use social Those of us teaching technology to law about responsible use of social media media as an apt discovery tool while students need to familiarize them with during representation and develop- following the appropriate e-discovery the risks attendant to these technologies. ing irm-wide social media policies. norms. The landscape is constantly Perhaps the biggest ethical challenge Lawyers must grapple with social media changing in the ield of legal technol- in using e-communications is adhering use in a variety of contexts, including ogies, but social media is here to stay, to the duty to protect the conidentiality the courtroom with myriad parties, and and attorneys must adhere to the new of client communications, as mandated they will have to alter their traditional social media professional requirements by Rule 1.6 of the ABA Model Rules of framework of lawyering to include for their ethical practice. Professional Conduct. Without going social media from the initial intake of clients to fruition of a case in both civil and criminal case settings. Attorneys must carefully consider: 1) whether to use social media in Social media is drastically affecting the practice of law, their practice of law; 2) creation of a business plan or policy for the ethical and attorneys should anticipate the use of social media use of social media to align with the by their clients. ABA guidelines; and 3) preserving social media as e-discovery and advice to clients on social media use and preservation during the case’s lifetime. Upon intake of each case, attorneys should conduct careful client counseling about social media in the digital age. This includes recommen- dations about not posting on social media in the context of the case and pending litigation, the legal implica- tions of social media activity, and the duty to preserve evidence. Recent CLE programs for attorneys and law and technology courses in law schools often include social media tips. The current guidelines and best practices include obtaining social media discovery at an early stage of the case, updating a law irm’s deinition of Electronically

Image © Istockphoto.com/gilaxia/ipopba/monsitj Stored Information (ESI) to include

SEPTEMBER/OCTOBER 2018 | AALL SPECTRUM 25 into technical details, email is subject about the risk of email interception: Law students and attorneys need to to interception during its transmission. “A lawyer generally may transmit information be cognizant of what it takes to make a Additionally, clients who store their relating to the representation of a client over “reasonable efort” to protect client coni- email messages on devices accessible the internet without violating the Model Rules dentiality when using e-communications. to third parties, such as an employer- of Professional Conduct where the lawyer owned computer or one used by family has undertaken reasonable eforts to prevent Electronic Discovery members, may lose conidentiality when inadvertent or unauthorized access. However, It has become trite but accurate to say third parties read the messages. a lawyer may be required to take special that electronic discovery has replaced Beginning in 1999, the ABA security precautions to protect against the paper discovery. Electronically stored Standing Committee on Ethics and inadvertent or unauthorized disclosure of client information (ESI), already ubiquitous Professional Responsibility issued three information when required by an agreement in emails, texts, productivity software, formal ethics opinions on an attorney’s with the client or by law, or when the nature databases, social media, video, phone duty when communicating with clients of the information requires a higher degree of records, digital photos, and GPS, is by email. The committee originally security.” The opinion includes guidance growing exponentially with the con- stated: for attorneys on steps to make those nection of “everything” to the internet reasonable eforts: A lawyer may transmit information (IoT, or the Internet of Things). As the scope of discoverable ESI expands, the relating to the representation of a 1. Understand the nature of the threat. client by unencrypted email sent competency bar rises. Lawyers must 2. over the internet without violating Understand how client conidential account for ESI stored in their clients’ the Model Rules of Professional information is transmitted and how personal devices and business systems. Conduct (1998) because the mode it is stored. Commingled personal and business information complicates a lawyer’s of transmission afords a reasonable 3. Understand and use reasonable concurrent obligation to produce rele- expectation of privacy from a tech- electronic security measures. nological and legal standpoint. The vant, responsive information while not 4. same privacy accorded U.S. and Determine how electronic commu- disclosing conidential or privileged commercial mail, land-line tele- nications about client matters should information. phonic transmissions, and facsimiles be protected. Recurring discovery mistakes and applies to internet email. A lawyer misconduct can range from simple should consult with the client and In practice, attorneys have relied on human or technical error to negli- follow her instructions, however, as two means of reasonably protecting gence or intentional spoliation of ESI. to the mode of transmitting highly e-communications—by encrypting Perfection is not the standard. Given sensitive information relating to the email messages and by limiting such the volume of discoverable ESI, some client’s representation. communications to a client intranet human and technical error will occur. or portal. Encryption makes messages Negligence may warrant monetary Next, the committee addressed the unintelligible to anyone other than the sanctions but can often be reduced with issue of clients storing their email in intended recipient, and a portal may be education and training. A spoliation potentially unsecure locations. The accessed only by the client if the system inding based on intent to conceal or Committee asserted a duty for attor- credentials are kept private. Portals deprive the opposing party of the use neys to explicitly advise clients of the use TLS (Transport Layer Security), of relevant ESI will result in a harsher risk of placing email messages where the successor to SSL (Secure Sockets sanction, such as striking pleadings, other parties could read them: “A lawyer Layer), to protect internet traic from an adverse inference instruction, sending or receiving substantive communica- interception. (URLs that start with dismissal, or default . Prompt tions with a client via email or other electronic “https:” use this protocol.) Until early issuance and ongoing monitoring of means ordinarily must warn the client about May 2018, most authorities would have litigation holds provide baseline pro- the risk of sending or receiving electronic com- considered either method in compli- tections against client loss or spoliation munications using a computer or other device, ance with making a reasonable efort. of ESI. or email account, where there is a signiicant However, at that time, vulnerabilities in Lawyers must be technologically risk that a third party may gain access.” The the widely used email encryption proto- competent to handle electronic discovery, committee cited examples of employees cols PGP (Pretty Good Privacy) and S/ but do not have to be technology experts whose computers and email accounts MIME (Secure/Multipurpose Internet themselves. Knowing when to enlist, and could be accessed by employers, and, in Mail Extensions) were exposed, initially how to communicate efectively with a domestic relations case, where spouses casting some doubt on this method. client IT personnel, outside vendors, and or other family members shared home As of this writing, security experts are forensic experts is key. computers. debating the impact of the vulnerability. Librarians with related experience or Last year, in Formal Opinion 477R, Some recommend using client portals acquired knowledge may want to con- the committee updated its advice or other encrypted applications. sider teaching an electronic discovery

26 AALL SPECTRUM | WWW.AALLNET.ORG is compared to other search methods, before the court approves its use. Unanswered legal questions about AI abound in , insurance, employ- ment discrimination, and other con- texts. In March 2018, MIT Technology Review asked what should apply, when, in a hypothetical set in 2023, “self-driving cars are [on] city streets and for the irst time, one of them has hit and killed a pedestrian, with huge media coverage” (bit.ly/SO18MIT). This question has arrived ive years ahead of time with the recent Uber self-driving car accident. Legal schol- arship on the law of AI and robotics Lawyers must be technologically competent to handle is at work on answering some of these electronic discovery, but do not have to be technology questions. experts themselves. Knowing when to enlist, and how to Law librarian scholars are contrib- communicate effectively with client IT personnel, outside uting their expertise to further under- standing of AI applications in legal vendors, and forensic experts is key. research. Professor Susan Nevelow Mart puts “black box” technology to the test by calling for course, guest-lecturing on the subject, professor at the University of Texas, greater vendor transparency in the or developing guides and instructional maintains highly useful teaching mate- algorithms and methods used. Mart’s material. rials on his website. View the materials study and Jamie Baker’s AI and tech- The Electronic Discovery Reference at bit.ly/SO18cb. nology competency writings are prime Model (EDRM) provides a visual rep- material for Advanced Legal Research resentation of the process, starting with Artiicial Intelligence and Law and Technology courses with information governance (including Artiicial intelligence applications are AI components. litigation readiness). Identiication, pres- burgeoning with far-ranging legal, ervation, and collection of ESI follow economic, and social implications. As Big Data and, Yes, Coding when a credible threat of litigation trig- AI ofers opportunities for reducing or Big Data—what is it and why should gers the preservation duty. Processing, eliminating routine, time-consuming law schools care about whether such a review, and analysis using an online tasks in electronic discovery, thing belongs in the curriculum? The review platform is next. Catalyst and review, and other traditional lawyer answer is not complicated. According to Relativity are two legal software vendors functions, innovative lawyers adapt to Google Dictionary, Big Data is “extremely who provide educational access to their seize new opportunities. Improving pre- large data sets that may be analyzed systems. Production of ESI must be in a diction of legal outcomes is an example computationally to reveal patterns, form speciied and agreed to by the par- of leveraging AI in the legal profession trends, and associations, especially ties consistent with the FRCP (Federal to better understand data. relating to human behavior and inter- Rules of ) and other Predictive coding uses machine actions.” But Big Data also entails a applicable court rules. Presentation at learning (a form of AI) to speed up the series of skill sets surrounding the devel- , authentication, and admissibility identiication of relevant documents. opment and analysis of the data. Viktor conclude the EDRM. Lawyers wanting to use predictive cod- Mayer-Schönberger and Kenneth E-discovery law essentials include ing instead of or in conjunction with Cukier provide an easy-to-digest yet the 2006 and 2015 FRCP amendments traditional keyword searching must well-done primer on the subject. (Learn and foundational cases such as Zubulake satisfy (and opposing counsel) of more at bit.ly/SO18bigdata.) and Qualcomm. Ediscovery Daily Blog is an their competence to oversee the process, For example, they point out that excellent way to keep current on these including quality control and vendor “[a]t its core, big data is about predic- issues. supervision. A may want the tions. Though it is described as part of The Sedona Conference principles attorneys (and their technical experts) the branch of computer science called and commentary are essential best to explain enough about “the black artiicial intelligence and more specii- practice sources. Attorney Craig Ball, box” behind the technology to under- cally an area called machine learning, a technology trailblazer and adjunct stand how it works and how reliable it this characterization is misleading.

SEPTEMBER/OCTOBER 2018 | AALL SPECTRUM 27 Big data is not about trying to ‘teach’ around Big Data: our vendors are a computer to ‘think’ like humans. already there. Reed Elsevier, particu- Instead, it’s about applying math to larly with its acquisition of Ravel, has huge quantities of data in order to infer taken a huge lead in this area. And a probabilities.” word for law librarians—nobody owns Ed Walters, among others, has pre- this space … yet. We must and should RANDY J. DIAMOND sented on the topic of data as the “new make this part of our DNA. DIRECTOR OF LIBRARY AND J. DIAMOND RANDY © 2018 BY TECHNOLOGY RESOURCES oil,” namely, an economic reality where So how do we get there? In no small LEGAL RESEARCH PROFESSOR OF LAW lots of jobs and lots of opportunities part related to this is the question: To University of Missouri School of Law for jobs will be created by the world’s Code or Not to Code, should we teach Columbia, MO [email protected] increasing ability to generate more and law students how to code? Yes! Coding more data. Data may be a by-product of is a crucial part of the data scientist skill other information systems and processes, set and will make our law graduates but it is clearly also the foundation for a more employable. whole host of new applications. Any doubt of this notion can be This shift though, as always, has immediately erased by following the © 2018 BY DARIN FOX DARIN © 2018 BY implications for the law. Not just in how work of David Colarusso, now clin- DARIN FOX we develop uses for the data but also ical fellow and director of the Legal ASSOCIATE DEAN, DIRECTOR OF for how these uses are regulated and Innovation and Technology Lab at THE LAW LIBRARY PROFESSOR OF LAW monitored. Many dystopian novels and Sufolk Law. It isn’t just Colarusso’s University of Oklahoma College of Law movies seem to begin at the point where work, it’s also the work of Daniel Katz Norman, OK humanity has somehow lost its way and Michael Bommarito, who taught [email protected] with the rise of technology because the the programming language R and made law didn’t keep up. And while this may their work open source for anyone to use. be a compelling reason for law schools (Learn more at bit.ly/SO18Katz.) to enter the Big Data game, it’s not a rationale we’re suggesting. Law Librarians Leading the Charge The reason for why law schools Law librarians have many opportunities should develop courses around Big Data to make this a point of conversation in KENNETH J. HIRSH DIRECTOR OF THE LAW LIBRARY KENNETH J. HIRSH © 2018 BY is not complicated. Put simply, gradu- our schools. We can craft these courses PROFESSOR OF PRACTICE ating law students who, in addition to and the pedagogy (and throw in the University of Cincinnati College of Law having subject-matter expertise, can word heuristics to make traditional fac- Cincinnati, OH [email protected] distinguish correlation from causation ulty more or less think it has merit). We and who have some semblance of a have many opportunities in any given data scientist background and skill set, year to discuss how this can happen will be extremely employable. Proof and to move it forward. For example, here is not hard to ind. For example, we have an information hub to collo- the chief knowledge oicer of a nation- cate all this information at the Legal Technology Laboratory. (Learn more at wide law irm said he would hire as HEIDI FROSTESTAD KUEHL many law students with data science bit.ly/SO18legaltechlab.) DIRECTOR & ASSOCIATE PROFESSOR skills as we could produce. Even more While working with legal informa- OF LAW © 2018 BY HEIDI FROSTESTAD KUEHL HEIDI FROSTESTAD © 2018 BY telling, just look at a couple of weeks’ tion is old hat to lawyers, law librarians, David C. Shapiro Memorial Law Library Northern Illinois University College of Law worth of AALL KnowItAALL news- and law students, the rapid and broad DeKalb, IL letters that appear in your inbox each spread of technology over the past three [email protected] day. Recent headlines have included decades demands our rethinking about “Big Data Meets the how and what we teach law students. in New Originalism Project,” “Lex The world is on the cusp of profound Machina Expands Analytics Insights change, and now is the time to bring Into Remedies Grant/Deny Rates law students to the forefront. and Trends,” “Gavelytics Expands MICHAEL ROBAK California Judicial Analytics With Teaching + Training MICHAEL ROBAK © 2018 BY ASSOCIATE DEAN FOR TECHNOLOGY Rulings Research Capability and Adds & INFORMATION SERVICES AALL2go EXTRA Arbitrator Archive,” and so on. DIRECTOR OF THE SCHOENECKER Watch the 2017 AALL Annual Meeting pro- But the last two headlines above LAW LIBRARY gram “Teaching and Implementing Emerging University of St. Thomas School of Law about Lex Machina and Gavelytics add Technologies in Legal Practice” at bit.ly/ Minneapolis, MN fuel to the ire for creating curriculum AM17legaltech. [email protected]

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