Achieving Technological Competence: On overcoming our nostalgic preference for unmerging technologies.

While working the reference desk at a mid-sized research institution, I came across a student who was searching for a particular article. I positioned my monitor to demonstrate to her how to navigate the university’s databases and find the article. Just as I opened the pdf, she stopped me and said, “Wait, my professor said its on something called a mi-cro-fiche machine.” I informed her that it was true, and that the article was also available on microfiche. Through a brief reference interview, I learned that her professor, whom we will call professor Fulano, told his class that, “They have not done real research until they have used the microfiche machine.” Thus if we take this declaration to its logical conclusion, I would not be considered a real librarian (in Dr. Fulano’s) eyes unless and until I show her how to use one. At this I walked her over to the film cabinet, found the corresponding film roll, walked over to the projectors, and fired up the machine. Admittedly, I had fun (as always) using the machine. Maybe it’s just the increased sense of agency involved in manipulating the speed of the dial, hearing the whir of the wheels, as you are watching the film fast forward through time before your eyes. Perhaps some software developers had this in mind when they included the simple animations which served as visual indicators to the loading efforts of a digital search. We scrolled through the film until we found her article. I arose from the terminal and headed back to the reference desk. Instinctively she pulled out her smart phone ready to snap a picture of the screen, as I’ve seen younger students do from time to time. But she stopped herself abruptly. “Wait!” “…How can I get a copy of this article?”, she asked. After verifying that she had a coin for the machine, she dropped it in to make the necessary photocopies.” After doing so, she grabbed the copies, with evidence of her baptism in hand, she confidently headed towards the exit.

I looked up the bio of professor Fulano. I was not surprised to learn that he earned his PhD in 1979 and thus likely was repeating the maxim of his PhD advisors about the cutting-edge tools of library research of the time. Overall, it is laudable that a contemporary student familiarize herself with ‘un-emerging’ technologies, but this should never be done so at the expense of gaining competence in emerging (or even current) technologies.

Technological Competence
When polled as to what type of graduates they prefer, Law firms the world over are saying the same thing. . . we want practice ready lawyers. Law school education, which is driven largely by bar passage requirements, has problems accommodating this obvious professional need.
One competency which can demonstrate a lawyer’s practice readiness is her ability to work with technology. And Legal Writing and Research are two areas which are positioned to provide what some have referred to as the “Duty of Technology Competence”

The American Bar Association recognized the need for technology competency when they added comment 8 to Rule 1.1 of the Model Rules of Conduct. As of this posting, 39 state bars have adopted Comment 8 and explicitly recognized the need for their lawyers to be technologically competent with, “the law and its practice, including the benefits and risks associated with relevant technology.”

It is important that information specialists confront the myth of the digital native. Academic Law Librarians are best poised to help educate law students about technology competency. For this, and other reasons, I think that it is important that those charged with educating the younger generation, should lead to effort in ensuring the useful implementation technology among the digital native generation. This is because the older, more experienced information specialists are often best posed to provide the contextual origins of the technology that younger students often take for granted.
Requiring technology competence as a part of Law School curriculum is one of the best immediate ways to ensure that law schools can turn out practice ready lawyers. And, one way in particular, is adding technological competence to legal research and writing courses. Given these courses are not doctrinal, but they are still the backbone for every law school’s curriculum.
A desirable law school technology curriculum would also include courses such as:
Online Legal Document proficiency; Research and analytics & document integration, E discovery, and Data Security to name a few. Currently many Law Schools offer such courses. In fact, The Legal Technology Laboratory identified over 1,000 courses focusing on the intersection of law and technology. While this is a fine start it demonstrates there is still some confusion between the “Law of Technology” course and the “Technology of Law” courses. An argument can be made that “Technology Competency” for lawyers is about being competent with the Technology of Law. But, to represent clients effectively, lawyers also need to be fluent in the Law of Technology. What is still lacking is a true definition/explanation of what we mean by technology competency and an industry wide standard for how to measure competency.

This deficiency has led some advocates to call for the testing of technological proficiency on the Bar exam. The advocates for bar testing are correct in their prediction that this is the most surefire way for ABA law schools to fully implement a standardized training curriculum which includes, inter alia, Legal Technology competency. Among possible drawbacks, however, would be reconciling the seldom-changing black letter law subjects on state bar exams, with the ever-changing trends of technology.
Directors of large law firms, like Uma Everett, of Sterne, Kessler, Goldstein & Fox, instead advocate for technological competency certification processes to be met through CLE’s. This is a common-sense approach. Recent applicants for the Bar are more likely to be familiar with the latest emerging technological trends, while long time members of the bar may be most in need of a technological refresher as time passes. But this addresses the practicing lawyer. More focus and attention must be brought to the problem of creating practice ready technology competent law graduates.

Here lies a true opportunity for the LIT-SIS on leading the way in creating standards for achieving technical competency within the rubric of law practice, to ensure that the law practitioners, educator, researchers, and information specialists create the right programs for an ever-changing technology landscape so that law graduates can practice today and for the rest of their careers.