Slaying the e-Discovery Dragon: Are Law Schools Up to the Task?

Ask any lawyer whether the typical law school course is "practical," and you'll likely receive a resounding "No!" - after they stop laughing, of course. But bloggers have stumbled onto a novel idea - why not teach law students practical skills for dealing with e-discovery issues before they are sent out into the legal community? In a recent article, William Hamilton, a commercial litigator at Holland & Knight and an adjunct professor at the University of Florida's Levin College of Law, pointed out that "e-discovery failures continue, apparently unabated" and "many of the dramatic e-discovery failures of the past two years have involved firms at or near the top of the profession." See The E-Discovery Crisis: An Immediate Challenge to Our Nation's Law Schools, November 5, 2008." Some experts believe that "attorney incompetence in e-discovery is so widespread that it presents a massive ethical crisis across the entire legal profession." Id.  So why not educate the next generation of lawyers about the best methods for dealing with e-discovery? These law students can bring a new level of e-discovery competence to law firms, government agencies, and clients. Id. It may be the best method by which the profession can slay the e-discovery dragon and avoid the pitfalls and sanctions of the "e-discovery crisis." 

In his article, published as a guest feature on the e-Discovery Team blog and the Paralegal Profs blog, Professor Hamilton does a thorough analysis of the impact law schools can have on the legal profession by teaching courses on e-discovery. Hamilton himself teaches a course on e-discovery at the University of Florida's Levin College of Law. He points out that most law schools are "blithely continuing to teach civil procedure as if nothing or little is happening 'out there.'" Id. All while the civil justice system "flounders under the weight of digital revolution." Id. Hamilton compares the inaction of law schools to "fastidiously arranging the deck chairs while the Titanic goes under." Id. He calls on law schools to educate young lawyers about the importance of e-discovery. After all, law schools are best equipped to address the e-discovery crisis, because they "operate in an educational environment absent crushing time and business restraints. Law students have the time to think, work, and struggle with e-discovery in a tolerant, incubating environment." Id. Practicing lawyers, on the other hand, are forced to attempt to learn best practices for dealing with e-discovery through CLE programs and seminars, all while trying to deal with the "crush of billable hours and the economics of the modern law firm." Id. Hamilton goes on to describe what a "practical" e-discovery course would look like.  He insists that "teaching e-discovery means working through each of the e-discovery phases outlined in the EDRM model with similar hands-on experimental approaches." Id. He also emphasizes that the students must not be lectured, they must "do." In his own course, Hamilton emphasizes practical experience, and the students conduct mock "interviews" using IT professionals from the University of Florida's Legal Technology Institute as their subjects. See Hamilton's article for a full walk-through of a course in his classroom. 

Professor Hamilton's point is a good one: the legal profession can begin to stop the bleeding from the e-discovery crisis by insisting that the new generation of lawyers be educated about e-discovery issues. Some law schools, like the Levin College of Law at the University of Florida, are already on board. But how likely are law schools across the country to answer Hamilton's call? After all, law schools have been historically slow to offer practical coursework for their students. But as sanctions from e-discovery violations build, law schools may be forced to pull their heads out of the sand and address the critical role they could play in educating the profession about e-discovery. Only time will tell if law schools will answer the call.