What do you call someone who gets the lowest passing grade on the Bar exam?
Guest lecturing at an e-discovery class at UT Law School today left me feeling a tad discouraged. I'd covered the fundamentals of data storage, the broad components of an enterprise IT environment, Unicode and a bit about keyword search. In 50 minutes, there's only so much I can do, and with little depth or nuance. Afterward, a third-year student in the class confided that he'd thought I'd gone pretty far "into the weeds" and wondered if he would really need to know this stuff. He asked why he couldn't just hire someone to handle the e-discovery issues in his cases.
I explained that not every case would have the budget for experts--most cases do not--and that he would certainly need to know enough technology to recognize when he needed help and make wise choices in engaging vendors and experts. Then, he would need to know enough to initiate a defensible hold, question technologists and others who serve as custodians of ESI and competently participate in Rule 26(f) conferences, as well as frame and respond to e-discovery.
I asked him if he could tell me what difference it made to obtain a gross negligence finding from a simple negligence one, and he correctly replied that gross negligence would support the imposition of punitive damages. "We punish people who are grossly negligent," he observed. I shared the upshot of Judge Scheindlin's recent Pension Trust opinion, noting that the failure to initiate a legal hold in a timely and competent way was defined as grossly negligent, adding, "Don't lawyers need to know enough about ESI and technology--like where ESI resides, the forms it takes and the proper ways to identify, preserve it and search it--that their conduct isn't grossly negligent?" He agreed, and conceded that lawyers whose conduct is negligent and grossly negligent face ethical issues, too. Chastened, he asked, "What's the least I need to know?"
We look to the crop of eager young lawyers to be inherently more adept at e-discovery than we who preceded them. After all, they have iPhones. So, it's disheartening to see even a law student searching for the easy out, openly setting his sights on the minimum that will let him get by. Maybe we were all that way at that age, but I want to believe that we dreamt of being the best, not the least.
My young class member reminds me that there's a shortcut-seeking mindset about e-discovery that's got to go. You can't become competent in e-discovery by collecting a few forms and checklists and slavishly using them anymore than you can become a skilled lawyer by just memorizing Black's Law Dictionary. As a profession, we must set our sights on understanding, not just expediency. Like the heart surgeon said, "I could teach you how to do a bypass in an afternoon. It's just plumbing. But it will take you years to learn what to do when something goes wrong." We need to know e-discovery well enough that we know what to do when something goes wrong.
And the answer to the title of the post: "What do you call someone who gets the lowest passing grade on the bar exam?" Why "Counselor," of course! Or "Your Honor."