Technological Competency: Good for Lawyers, but Bad in Court?

To lawyers, technology can be a 4-letter word, especially in the courtroom. Tech can be an amazing tool to present a case or story, but it can also be fatal. What if the tech fails – whether through system failure or operator failure? Poor implementation of technology can doom a trial – the lawyer can look buffoonish, the jury disengages, or worse, the wrong image is shown at the wrong time!

I thought of this recently when I saw a number of articles/posts/blogs commenting on the rise of technical competency as a required standard of bar associations. According one commentator, more than half of the states (56%) require some level of technology competence as part of a lawyer’s professional duties and obligations. (H/T Law Sites by Robert Ambrogi).

According to Comment 8 of Rule 1.1 of the ABA’s Model Rules of Professional Conduct:

Maintaining Competence

[8] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

(Bold added).

Georgia doesn’t have similar guidance, as Rule 1.1 lacks a Comment 8. Instead, Comment 6 contemplates “Maintaining Competence,” but simply says:

“[6] To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education.”

But does a duty of technology competence carry over into the courtroom? I don’t know – but I don’t think it should. There are too many technologies, too many variables in what courtrooms offer as available resources, and too much relies on the presiding judge’s acceptance or familiarity with the use of technology in courtrooms.

But this is totally different from requiring technology competence from business litigators. We deal with technology on an ever-growing scale; it has become the standard, rather than the exception. Business litigators must be familiar with tech terms, concepts, and applications. It is everywhere now – e-discovery, client interaction, and even document drafting. Settlements are swapped in various versions and it is bad form not to mark changes.

So if you don’t know basic technological terms or concepts, I suggest you look into them. And perhaps even go to a boot camp or two.

When is a Loser a Winner?

Normally, when a jury finds for a claimant, but then awards no damages, then that is viewed as a defense verdict.  After all, damages are generally a required element of a claim.

But if the jury finds for a claimant, but awards zero damages – are they a “prevailing party”?  At least one panel of the Georgia Court of Appeals says yes.

In HA&W Financial Advisors LLC v. Johnson, an employer (HA&W Financial) sued an employee (Johnson) under an employment agreement.  A15A2298 (Ga. App. April 19, 2016).  The contract had a contractual attorneys’ fees provision that entitled “the prevailing party” to recover fees if either party sought to enforce the agreement. Continue reading