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ANALYSIS: Should Legal Tech Knowledge Be Tested on the Bar Exam?

Aug. 6, 2021, 9:00 AM

Lawyers are currently using more legal tech than ever before. Many law schools offer legal tech training to students. And yet, we currently have no industry-wide standard method of establishing and measuring a lawyer’s legal technology skills, understanding, and competence. This made me curious: Is it time for the bar exam to begin formally testing knowledge of legal technology?

I asked experts in law and legal technology for their opinions, and here’s what I learned.

There Are Good Reasons to Test...

There are several solid reasons why testing knowledge of legal technology on the bar exam would be a good idea.

For starters, legal tech plays a large role in the profession. According to preliminary results from our 2021 Legal Technology Survey, all legal organizations and departments utilize technology to some extent, so it’s not that radical an idea to propose objectively assessing the skills that are becoming more indispensable each year.

After listening to retired U.S. Magistrate Judge and Georgetown Adjunct Professor of Law John M. Facciola in a recent podcast about e-discovery and social media, I thought his opinion on this topic would be insightful, so I reached out to him.

“Not testing a gigantic part of a lawyer’s life seems strange to me,” he said during our conversation. I imagine that it may seem strange to other lawyers as well.

Dauna Williams, founder of The Williams Group 5 and adjunct professor at the Northern Illinois University College of Law, focused on the practical aspects of adding legal tech to the bar exam. “The bar has to demand it because our clients are demanding it,” she said. “It’s a necessary step to ensure that lawyers know how to evolve legal analysis into technological problem-solving.” A valid assertion, especially since both the American Bar Association (Comment 8 to Rule 1.1) and 38 state bars have addressed lawyers’ obligation to be technically competent.

Why can’t lawyers just get third-party vendors to handle their tech needs? They can and they do. Nonetheless, the failure to understand how to utilize legal technology and interpret the information gained from it could have wide-ranging (and possibly catastrophic) consequences for that lawyer—from missing or misinterpreting crucial information to inadvertent disclosure of confidential and privileged material. After all, as Judge Facciola asked: “If you don’t know technology, how can you make a good decision about choosing a vendor who has reliable data security?”

...But There Are Also Potential Drawbacks

There are concerns around testing legal technology on the bar exam, such as adding even more anxiety to already stressed-out test-takers. However, most apprehension revolves around whether it could effectively be accomplished.

Using the bar exam to gauge legal tech proficiency may be too tall of an order, according to Uma Everett, director at Sterne, Kessler, Goldstein & Fox. “It would be difficult to test this on the bar exam,” she told me. After all, legal tech evolves swiftly, unlike the black letter law present on all bar exams.

Casey Flaherty, lawyer and co-founder of law tech training company Procertas, said that “it would be hard for the bar exam questions and curriculum to keep pace with the newest tech offerings.” That would be challenging indeed, keeping in mind that to do so bar examiners would need to stay current with emerging technology while simultaneously testing it agnostically.

Other Options to Ensure Legal Tech Proficiency

The concerns listed above contribute to the counterargument that attaining legal tech competence is a task best tackled outside of the bar exam. Perhaps implementing a mandatory curriculum of technological training would be more effective than testing yet another subject in the dreaded crucible of the entry exam.

Flaherty is a proponent of embedding some basic tech training in well-established core law school classes, contending that “core tech training can be directly integrated into doctrinal courses today.” For instance, he suggests that Word training can be incorporated in first-year legal writing and contracts classes. In civil procedure, he says, course instruction could include PDF training to teach law students how to prepare a conformant e-filing.

Everett shared with me her view that to instill legal tech acumen in lawyers, “it’s perhaps better to just have CLE requirements instead.” Point well taken: the respective state bars of Florida and North Carolina are doing just that.

Another premise is that lawyers’ technical proficiency may be inevitable, with no systemic changes necessary at all. Professor Ray Brescia, the Honorable Harold R. Tyler Chair in Law and Technology and professor of law at Albany Law School, told me that the “disciplinary machinery of the state bars and the threat of malpractice lawsuits, coupled with the market’s preference, are likely to go a long way towards promoting the ultimate goal of having tech-savvy lawyers.” His argument is that mechanisms already in place, in combination with a laissez-faire approach to supply and demand, are sufficient to ensure that lawyers have the legal tech knowledge they need (and that clients deserve).

Conclusion

Efforts to train aspiring and current lawyers in legal technology are well under way. While there are other avenues to ensuring competence, formally testing legal tech knowledge would enable prospective employers to be confident knowing that state bar examiners have already confirmed the aptitude of successful test-takers. And let’s face it: if the bar exam is already the final obstacle course that law graduates must conquer to officially join “the club,” how much more difficult could it be to add one more hurdle?

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To contact the reporter on this story: Robert Brown in Washington, DC at rbrown@bloombergindustry.com

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