Industry Standards of Care
Law schools around the country have taught the TJ Hooper case1 for over fifty years. In that case, two barges carrying coal in 1928 from Virginia to New York sank during a severe storm. A claim was filed stating that had the tug boats towing the barges carried radios on board, a practice not yet standard in the industry, they would have received news of the storm and been able to avoid it.
This case is a great example of the far-reaching effect of shifting industry standards of care over time. That is, as new technology is embraced within an industry, a particular business’ decision to forego the use of that technology can—and will—result in accidents, failures, losses, and, ultimately, liability for negligence.
Adopting Available Technology
This basic idea has ramifications for all U.S. (and multinational) law firms on the way they approach ediscovery—the collection, review, and production of electronic data. Most medium-sized and large law firms have adopted various forms of ediscovery technology within their firm. But, far too many solo lawyers and small law firms have not yet done the same. They may see the long-term value of adopting modern solutions but don’t think legal technology provides any solutions for their current needs.
Recognizing that all U.S. law firms—of any size—involved in litigation must have systems in place to deal with ediscovery does not mean that solo lawyers and small law firms must immediately throw open their checkbooks. It requires more care, judgment, and discernment.
But it does mean that every law firm, no matter how small, has a duty to keep up with available technology; the goal being not simply to impress clients with shiny tools, but to meet basic quality service standards. As Ivy Grey wrote in Law Technology Today, under the ABA Model Rules of Professional Conduct, “lawyers can no longer be proudly unaware of technology and still claim to ethically serve their clients’ needs.” The clients of solo and small law firms increasingly expect their lawyers to have basic technological capability and, in the not-too-distant future, courts will impose it as a fundamental obligation of legal service providers in all civil litigation.
Legal Technology throughout History
In the 1930s, one can imagine a law firm rejecting the installation of telephones. No doubt there was a firm that did not trust the technology, or security, and did not think that telephones were particularly critical to getting work done.
In the 1970s, one can imagine another law firm’s resistance to computers for similar reasons.
In the 1990s, there were large U.S. law firms that rejected electronic document management systems, again, with similar skepticism and misgivings.
The stated concerns and resistance to new technologies are always the same: the cost, a disbelief in the need to change, and a fear that these technological changes may harm rather than help provide professional services. Over time, though, those that don’t jump on the new technology trains with both feet are inevitably left behind.
But unlike the costs of phone service, computers, and document management systems, ediscovery presents a much larger challenge to solo lawyers or small law firms. The entry cost of many ediscovery solutions can be overwhelming. Perhaps most challenging, for many ediscovery solutions, firms not only need both expensive software and hardware, they also need trained IT staff to run the systems. They also need to commit up front to specific storage space within their hardware, running the risk that they have—and are paying for—too much or too little storage space at any given time. Investments of that size—for needs that may be too transient and unpredictable to warrant a full-time employee (or even a regular part-time one)—are simply out of the question for many solo lawyers or small law firms.
Choosing an Ediscovery Solution
Does this mean the days are numbered for solo lawyers or small law firms—or at least those who offer services in civil litigation? Or, will smart and hard-working solo and small-firm lawyers be able to compete against larger law firms that have far greater resources?
With Everlaw, the answer is unequivocally “Yes.”
Everlaw is a cloud-based ediscovery platform, providing customers with the ability to upload, review, and produce their own data. The solo lawyer or small firm buys no software. No hardware. The solo lawyer or small firm has no need to hire an IT staff. They avoid many of the ongoing costs—such as open-ended, hourly “technologist” fees—that other ediscovery solutions charge. In addition, Everlaw charges a competitive and transparent per-gigabyte price, allowing solo and small firms to predict and manage their costs based on the data storage they are actually using.
What does this mean on a day-to-day basis for solo or small firm litigators? It means the ability not just to survive, but to thrive. The court in TJ Hooper held, in essence, that radios on tugboats were not optional, they were prerequisites to doing business. With Everlaw, litigators can take advantage of all the upsides to litigation in a modern world without the added burden that might sink a small firm. No need to suffer the same fate as those tugboat captains, or their barges.
1(60 F.2d 737 (2d Cir. 1932) (Hand, L., Judge)) (S.D. Cal. Nov. 3, 2016)