The trials of technology.

• Author: Smith, Sean
• Position: Ethical trial issues in failure to use technology

TODAY, it's hard to open a newspaper without seeing a reference to an iPad, Android, BlackBerry or some new mobile device that that just a few years ago would have been hard to imagine. There's no question that technology is advancing in incredible ways. These advances are also dramatically changing the practice of law--from the way we do research to the way we present cases. But what hasn't changed, generally speaking, are many attorneys' attitudes toward technology and innovation. As a group, attorneys seem to resist change and innovation more than most. (1) After all, our jobs are based on concepts such as stare decisis and res judicata. Many attorneys do not know all of the ways they can use technology to make themselves better lawyers.

If you are entirely anti-technology, you may want to take some advice from a country song from the early 80s, particularly the line about being the only one you're hurting when you put down what you don't fully understand. (2) Making this issue more interesting and pressing, is the fact that we are at a point where the barriers to using technology are quickly disappearing. From electronic filing to electronic discovery it's time to "Get Over It." (3)

Nils Jensen, senior litigator with the British Columbia Prosecution Service in Victoria, British Columbia, recently posed the question: "Are Technophobes Negligent?" (4) Nils makes a persuasive argument that the technophobic litigator who refuses to incorporate modern courtroom technology is as guilty of negligence as the doctor who refuses to use modern technology, should they lose the case or the patient.

Of course it's easy for me to agree with Nils since a part of my job at NYPTI requires me to stay on top of the latest advances in technology and help prosecutors use these technical advances to help further justice. But is Nils correct? What about an appellate attorney who Shepardizes a brief using the print version of Shepard's. The attorney is probably missing every new case since the last pocket part, especially since the online versions of Shepard's and KeyCite are updated almost every day. So, are technophobic attorneys really negligent?

To begin let's take a quick look at the American Bar Association's (ABA's) Model Rules of Professional Conduct (5) which have been adopted by most states:

Rule 1.1 Competence:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. (6) (Emphasis added).

Comment five further describes...