Lawyers need to have a solid understanding of data and analytics to succeed in today’s legal marketplace. This is doubly true for litigators.
Continuing with its pioneering Technology and the Law course first held at the City University of New York (CUNY) Law School and Syracuse College of Law, the New York State Bar Association’s Committee on Technology and the Legal Profession and Albany Law School launched a Technology and the Law course for the Fall 2020 semester.
“Technology has sped up litigation and made it more efficient so the class is important because it teaches what technology is out there, what it can do, how to use it ethically and to spot the issues and problems with its use,” said Mark A. Berman, founding chair of the Committee on Technology and the Legal Profession. Berman notes that it takes a bar association to offer such a survey class as law schools do not have the faculty to teach so many different areas of technology. “That is what makes NYSBA’s courses unique.”
This two-credit course is offered in the evening and eight students participated. Classes featured weekly guest speakers, including many NYSBA members. The textbook was NYSBA’s e-book entitled Virtual Lawyering: A Practical Guide, the first book of its kind to be published by a bar association in the United States.
The goal of the course is to provide students with an understanding of the fundamentals of how technology intersects with the law. No particular technology skill or expertise was required.
The course covers the fundamentals of technology and the law, with a focus on what new lawyers need to know to practice competently. Topics include: artificial intelligence and algorithms, big data and automatic decision making, social media legal ethics, procuring technology and technology contracting, biometrics and facial recognition/autonomous vehicles and drones, and cybersecurity.
Questions raised include whether or not a client should delete incriminating social media posts or if a transactional counsel is ethically permitted to scrub the redline of a contract looking for hidden metadata. “Not in New York,” said Berman.
Berman said the class had a robust discussion on these questions. “There are no clear-cut answers,” said Berman, “That’s why this course is so important.” He added that having the class held over Zoom allowed for more interactive participation, rather than having a remote webinar piped into a law school lecture hall.
New York is one of a growing number of states that have adopted a professional duty of technology competence. Comment 8 to Rule 1.1 of the NY Rules of Professional Conduct states that a lawyer should: Keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.
From the teachers’ desk
Maura Grossman, a member of the NYSBA Committee on Technology and the Legal Profession who is helping teach the class, said that the goal is to introduce students to the technologies that they will encounter once they come out of law school. She explained that most law schools do not offer technology-related courses and those they do teach tend to be on the law (such as intellectual property) versus how to use social media properly or understand artificial intelligence.
She has taught classes on the fundamentals of AI and issues of bias, as well as on electronic discovery and technology-assisted review (TAR) in litigation.
“The students have been pleasantly surprised and find the area interesting and very different from most law school curricula. It opens their eyes to the possibility of careers and employment in other areas than just at a law firm,” said Grossman. “From cybersecurity to social media, technology is coming into play in the legal arena.”
Most law students, she said, have mainly thought about practicing law as a generalist, going into litigation, tax law or real estate. “There are other roles they can play that are highly valuable,” said Grossman, citing positions involving data and analytics. “They will be well positioned to have careers in those areas.”
Grossman previously worked at a law firm in New York City and found her niche in technology and the law, particularly e-discovery. “It has been a very satisfying career,” she said.
Technology is changing the way we litigate, said Cynthia Conti-Cook, a former Legal Aid litigator. “There should be space in the law curriculum on how technology is impacting various areas of the law. It is hard to cover every aspect of it. It is changing the way we litigate.”
Conti-Cook discussed big data and automatic decision making with the class. She spoke about digital surveillance and how police investigations and prosecutions will likely result in more criminalization as people obtain digital devices.
As an example, she discussed the case of Latice Fisher, a Mississippi woman indicted for second-degree murder, after she arrived at a hospital with a stillborn fetus in her third trimester. Prosecutors obtained her Google search history and found terms including “abortion pills” and “how to induce a miscarriage.” This was used as evidence to show “criminal intent.”
“Everything related to our medical treatment and reproductive health is somehow captured in the digital device” said Conti-Cook.
From the students
In recent weeks, Albany Law students have written substantive essays on technology and the law building upon the course.
Tyler Rexhouse and Meghna Srikanth wrote about smartphones as a surveillance tool for the government. Rachel Meyer, Ashley Fischer and Wyatt Greth examined voice assisted technology concerns while working remotely. Olive Marine, Daniel Wesibard and Laura Jurewicz looked at algorithms in the criminal justice system.