the Future of Change

More and more, lawyers are feeling the technology walls closing in, like the trash compactor in the Death Star. The truth is, we are at a key inflection point in the history of the American legal profession, where technology is not just shaping how lawyers practice, but it also impacts the substance on which lawyers work. In a previous era, the end of the 19th century, the American legal profession faced a similar inflection point. New technologies, like the telephone and typewriter, and the rapid reproduction and dissemination of judicial decisions, changed all aspects of what lawyers did. In a piece forthcoming in the Washburn Law Journal, “Teaching to the Tech: Law Schools and the Duty of Technology Competence,” I explore the idea of the lawyer’s duty of technology competence in today’s technology inflection point and the responsibility of law schools to teach this duty. Below is the abstract. You can access the piece here. It is still in draft form. Comments welcome.

As a result of a wide range of emerging technologies, the American legal profession is at a critical inflection point. Some may argue that lawyers face dramatic threats not only to their business models but also to their very usefulness in the face of new technologies that may mean some form of legal guidance will be available to virtually every American with a little bit of computer savvy and access to digital technologies. At the same time, in recent years, the profession has largely imposed upon itself a duty of technology competence, which imposes an array of obligations regarding the use and proliferation of new practice technologies. Since lawyers are obligated to maintain this duty of technology competence, law schools should also have an obligation to teach technology competence as a core professional skill. Even with the significant changes that are likely afoot in the legal profession on account of the emergence of new technologies, a duty on lawyers to maintain technology competence, and the likely burden on law schools to prepare students for it, the precise contours of this duty of technology competence are themselves hardly defined. To understand the full scope and potential consequences of the likely impact of technologies on the American legal profession, we should consider another point in its history, another inflection point, where technology had dramatic effects on the practice of law: the last decades of the nineteenth century. Then, technology impacted all aspects of practice—not only the means by which lawyers practiced their craft, but also the type of work they did and the subject matter of that work. In this Essay, I explore the contours of a robust duty of technology competence, what I call a thick version of that duty. As part of this exploration, I describe efforts of law schools from across the country that are teaching different aspects of this broader duty. I also attempt to set forth a program for law schools moving forward that will impart in all law students a muscular version of technology competence. Such a version will prepare them to practice not just today, but also tomorrow and for the rest of their professional lives.