[Ed. Note – Please welcome back Jessica de Perio Wittman & Kathleen (Katie) Brown as guest bloggers. – GL]
In case you didn’t know, the National Conference of Bar Examiners (NCBE) will release a brand-new version of the bar exam in 2026. The NCBE conducted a study in 2018 and asked practicing attorneys and non-licensed lawyers about basic technology tasks in their law practice. Attorneys said they expect proficiency in word processing, research platforms, electronic communication, desktop publishing, and document storage, including the cloud. This should not be a surprise because D. Casey Flaherty has been talking about minimum tech expectations in the practice of law since 2012. His technology audit proved that many attorneys do not possess basic technology competency per Model Rule 1.1 and Comment 8. Over 10 years later, we are still talking about the importance of technology competency in the legal profession and highlighting ever-present shortcomings in basic technology skills. Flaherty himself stated that “lawyers in general are woefully deficient in using the software tools at their disposal – e.g., Word, Acrobat, Excel.”
Joseph Lawson, Law Library Director at the Harris County Robert W. Hainsworth Law Library, identified that a lack of time and training opportunities prevent solo and small firm practitioners from accessing legal technology. The 2019 American Bar Association Tech Report confirms Lawson’s hypothesis: only 28 percent of solos report the availability of technology training, while more than 95 percent of attorneys at large firms reported access to training.
Some may argue that law firms should not spend their time and money on offering basic technology training because the training should be offered in law school. We address how law schools provide technology training in our 2023 article, “Taking on the Ethical Obligation of Technology Competency in the Academy: An Empirical Analysis of Practice-Based Technology Training Today”. In our longitudinal study, we found that 670 technology courses were offered in the technology space. Now, 670 courses may sound like a large number, but this number includes every e-discovery, cybersecurity, law office management, and law practice and technology course in the country. This results in an average of 3.38 technology courses at each of the ABA-accredited law schools. This statistic also includes the University of North Texas, which is currently the only ABA-accredited law school that mandates the completion of a Practice-Related Technology requirement for all J.D. candidates. To learn more about how law schools are attempting to address the disconnect in technology training, we encourage you to watch the recorded version of the University of St. Thomas Law Journal Fall 2022 Symposium, A Roadmap for Law School Modernity: Teaching Technology Competence (available at https://youtu.be/hILd5qJ1G4I).
Today, the “next big thing” in legal technology is ChatGPT and generative AI, and we recognize that, in contrast, it’s not sexy to talk about basic technology skills. Or the fact that many attorneys still do not possess them. But we need to continue having these conversations about basic technology training and possessing the requisite skills for efficient legal practice. All attorneys should know how to:
- Download forms from databases
- Use formatting styles
- Create tables of authority
- Use Quick Parts and Autotext
- Save Word documents as efile-ready PDFs, and
- Set up shortcut keys to insert a section symbol.
Some believe that our law students were exposed to these basic skills because they grew up surrounded by technology. Iantha Haight disproves the assumption of native technology competency in her article “Digital Natives, Techno Transplants: Framing Minimum Technology Standards for Law School Graduates”. She claims that the term digital natives “lulls educators into thinking students need no additional training in technology to be prepared for the workforce.” Even though we have started to dispel the myth of the digital native in the legal classroom, we must now deal with a new generation of law students who went to “Google School”.
What does it mean to be a Google School student? These students were handed a Chromebook or an iPad with some (or all) of Google G Suite for Education. Today, some colleges and universities have been using Google Workspace for Education (previously called G Suite for Education) for at least a decade. In 2017, Google reported that about 15 million primary- and secondary-school students in the United States use Google Classroom. By this time, Chromebooks accounted for 58 percent of mobile devices shipped to primary and secondary schools in the United States. In 2019, Google reported that all eight Ivy League schools use G Suite for Education as a productivity tool of choice for their faculty, staff, and students. For a discussion on how Google Schools are impacting the law school classroom, you can listen to this podcast: https://www.geeklawblog.com/2022/08/teaching-and-pressuring-law-professors-to-teach-technology-katie-brown-tgir-ep-171.html.
Law schools have the challenge of minimizing the use of Google products in the classroom because most law firms don’t allow employees to use Google apps on their work devices. Microsoft and Adobe productivity tools currently have a large footprint on the legal academy and the legal profession. As a result, there is a disconnect in technology knowledge and skill when you compare what students were accustomed to prior to law school and what they’ll be expected to know when they head into practice. If the next gen bar exam is intended to simulate scenarios in modern-day practice, then the NCBE must also award points to test takers for successfully completing basic technology tasks that they would be expected to use in practice. The NCBE can ask test takers to:
- Create documents with specific margins, page numbers, and styles, like the formats expected from local court rules
- Create a table of authorities or a table of contents
- Draft an email using mail merge skills
- Convert a Word document into a PDF and
- Remove any metadata damaging to their client
We recognize that this is not a complete list, but it provides examples for how the NCBE could test basic technology skills that are expected in modern-day law practice. Only then, can bar examiners determine whether test takers have the requisite knowledge and skills for entry-level practice.
Author Bio:
Jessica de Perio Wittman (UConn) and Kathleen (Katie) Brown (Charleston) have been friends since their law school days at Seattle University. Although the two have lived in different states for the past 13 years and now serve as Law Library directors at their respective schools, they still manage to hold Zoom marathon writing sessions on a weekly basis.
