Why are lawyers incompetent when it comes to e-Discovery: Hubris. Time. Perceived easier options.
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Stephanie Wilkins recently wrote an excellent article entitled, “Is Attorney E-Discovery Incompetence the Elephant in the Room?” In it, Wilkins notes a recent Report from eDiscovery Today, a website paper from EDRM, commentary by several exerts, and several recent examples that all evidence the glaring ignorance of so many lawyers about e-discovery issues:
The e-Discovery paper cites a Survey of 400 e-discovery leaders. 23.4% of them say lack of eDiscovery competence was the number one challenge they face, significantly ahead of all other issues. The EDRM paper notes the importance of lawyers’ to use AI with e-discovery. But numerous commentators lament its lack of use by practitioners. Reports of weekly e-discovery mistakes made by lawyers stemming from the lack of understanding of how to handle basic ESI. The explosion of data and data sources compound the potential diasters from e-discovery mistakes
Wilkins concludes that this lack of competence is the elephant in the room that no one wants to talk about. The big question, particularly given the available tools and data explosion, is why. Why are so many practitioners so far behind?
Wilkins offers several theories, from shame to apathy to a lack of education in law school about the subject. All of these certainly contribute. But, based on my experience in a mid-size firm, there are additional, more impactful reasons that are harder to overcome.
It’s just a production issue, not a legal one for lawyers.
The first is the perceived time required to learn and better understand e-discovery. Nonbillable time. So many lawyers hear and look at e-discovery and the issues it brings, and their eyes just glaze over. Too much to learn. Too much to
