According to a recent Washington Post article, “government lawyers don’t understand the Internet.” This assertion is only slightly less surprising than the ABA waiting 138 years to make sexual harassment an ethical violation. While government attorneys’ misunderstandings about the Internet make for a pretty grievous set of examples, the problem isn’t constrained to government attorneys, or attorneys dealing with trailblazing technology issues. Mingling science and technology with laws and regulations creates risk.
But — why?
Lawyers are smart people. We’re trained to ask questions, including about our own preconceptions. We’re supposed to identify and analyze facts before we get to the step where we apply the relevant law. We’re supposed to be accurate. We’re supposed to know how to study and learn.
On the other hand:
- Law schools rarely educate students on critical areas where attorneys’ practices intersect with technology, like data privacy and electronic discovery.
- Laws that address cybersecurity or open records frequently were drafted decades ago.
- If an attorney can have a claim dismissed on a point of law, there may not be an incentive to understand highly technical, factual circumstances.
- At least in administrative courts, timelines can frequently be expedited, not leaving attorneys enough time to fully research technical issues.
- If the judge is out of their league, there may be a major risk in trying to educate them to the level where they can find in your favor.
- The types of technological questions that the article describes are often abstract and may not be immediately susceptible to analogy.
- In some cases, discovery concerns add complexity to the simple task of calling up an expert to ask for advice.
In my career, I’ve come across a number of important scientific or technical issues that I needed to understand to a degree that I could critically evaluate my options and make choices between them. In order to educate myself, I use the following tools:
- Read voraciously about diverse subjects. One of the best things you can do is understand what’s possible in science and technology. Take some of the futurists with a grain of salt, but understanding what could happen helps you understand where the immediate issue you’re facing sits on the spectrum.
- Learn some statistics. Please do not talk about averages anymore when you have non-normal distributions. Please do look up the definition of “risk” (it’s the probability of a negative outcome). How to Lie With Statistics is accessible and can walk you through the basics. A grounding in statistics is critical for attorneys dealing with scientific studies and data science.
- Read software specifications. Especially if you’re working on an IT issue, review the technical documentation: manuals, case studies, online support wikis. It isn’t more boring than state statutes, and it may actually answer some of your questions about a particular system’s capabilities.
- Look for terms of art. The law operates in a currency of terms of art, as do many other scientific fields. Repetition and context can help you identify what words and phrases you may need to research further or discuss with an expert.
- Use experts effectively. If you’re fortunate enough to have an expert witness, use them. Ask them about what facts stand out to them and why; ask them for metaphors and similes; and let them coach you on the vocabulary. An aspect of working with experts that I think is overlooked is understanding their decision-making framework. Lawyers cringe to hear engineers say “sure, we can build any variation on that, but it’ll cost,” but engineers are going to prioritize what’s safe over what’s cheap or expedient — their code of ethics demands it.
- Take online courses. Coursera and Udemy offer online courses on a variety of technical subjects, including free and cheap ones. I’ve taken two Coursera classes, and both were excellent introductions to technical fields (statistical modeling and accounting).
- If you can’t hire an expert, go to experts. Find networking opportunities to meet with professionals in the industry you need to learn about. Especially if you’re in a larger city, you should have options — there are at least five Denver Metro-area networking groups devoted to women in the energy industry. Talking to data scientists about programming over the years has been hugely informative to my understanding about how data can be obtained, cleaned, and analyzed.
There you have it — seven common barriers to lawyers understanding technical concepts, and seven steps for them to become more fluent in science and technology. It takes time and effort, but increasingly, the legal profession will be doing everyone else a disservice if it fails to educate itself on these issues.