It’s easy to get discouraged about the state of e-discovery education in America. Within the bar, we trot out the same high level platitudes and shopworn caselaw at brief CLE sessions, omitting the technical content that lawyers desperately need but resolutely ignore. So, it was heartening to be part of a weird and wonderful event this evening that restored a bit of my optimism.
Bill Hamilton, the Quarles & Brady partner from Tampa, is also Dean & Chairman of the Department of E-Discovery at Bryan University. Bill has quietly and modestly made major contributions to e-discovery education in the United States, and I think it’s fair to label him the brains behind Bryan University’s flegling E-Discovery Project Management Certificate program. It’s a splendid distance learning program, and whatever you may think about bricks-and-mortar universities versus their online counterparts, Bill and his distinguished Board and faculty have made sure that their classrooms of electrons preserve all the rigor of the ones made of atoms.
Dean Hamilton invited me to deliver the commencement address to the graduating class. I was both flattered and flustered as I’d never given a commencement speech before and wasn’t sure how one would address the students and their proud family members and friends in a virtual environment. I supposed it would be like a webcast, and it was, complete with my customary PowerPoint slides (Yes, it’s true I can’t sneeze without accompanying digital imagery).
The first challenge was figuring out a suitable background for the image, so I settled on my back patio for the lovely trees. Then I needed lighting. So, now I’m dragging floor and desk lamps outside and stringing extension cords.
When I speak, I never use notes because my PowerPoint images are the only mnemonics I need. But this was a first-time, one-off presentation, leaving me no choice but to rely on a script. Since I’d be speaking to the webcam, I had the “brilliant” idea to print my five page speech in a big font and tape the pages over and around the screen so I could read them looking in the general direction of the camera. I had to improvise something on which to tape the pages and ended up laying a chair sideways on the table behind the laptop. By now, I’m making Rube Goldberg proud (and my neighbors are having their worst fears confirmed).
In the end, I couldn’t see a thing and resorted to using a handful of notes while trying to look into the camera and advance the slides–managing to lose my place and omit an entire page of the stuff I most wanted to say. Doh! Yet, I muddled through and the students couldn’t have been more gracious. It felt surprisingly intimate and engaging, notwithstanding that I was sitting alone in the back yard, in the dark, talking to a table lamp.
Here is my speech to the E-Discovery Project Management Certificate program graduating class (or at least what I intended to say). I offer it in case any of the graduates might like to see what I muffed and as a memento of their achievement:
I want to thank Bill Hamilton and the faculty and officials of Bryan University for inviting me to join them, and to join with your proud family members and friends, in congratulating you on your achievement today. As someone who has delivered well over a thousand presentations to a hundred thousand lawyers, judges, legal assistants and law students, I confess that few of those events have kindled in me so burning a desire to say something profound and pithy as this august occasion. I want to say something profound to you on this milestone day.
I want to be full of pith.
And yeth,–I mean YET– as I think back on the commencement speeches made at my high school, college and law school graduations, I can’t remember who spoke or a word they said. So perhaps that’s what commencement speeches are meant to be: mercifully brief and eminently forgettable.
I promise you both.
But while you may forget what I say, let’s all hang on to the memory of the joy and pride and relief you feel in this moment. Let’s recall the many nights taken from family and friends, from beer and ESPN, to attend classes and study. I know most of you hold full time jobs, so completing this demanding program underscores your dedication, effort and grit. As a law professor, I see students head to law school just because they don’t know what else to do with themselves; so, it’s inspiring to see you juggling all the demands of busy lives, families and jobs to acquire the credentials you’ve earned today– distinguished credentials in an exciting new discipline. I am impressed, too, by the focus and drive that got you here. You’ve earned the right to say it, so say it with me now: Damn! I am GOOD!
This is also a time to celebrate your accomplishment—to revel in how few have achieved the distinction you’ve earned today and to indulge yourself in a hefty measure of justifiable pride, for you are truly trailblazers in a brave new world, possessing highly specialized expertise to equip you for a career that simply didn’t exist as a specialty even ten years ago. So, say it with me again, because you’re earned the right: Damn! I’m GOOD.
Now, before I become “that guy—ol’ whatshisname who spoke at my graduation,” let’s share a moment to ponder tomorrow and your future. For some of you, this program has been a chance to add to your already prodigious skills in business and litigation support. For others, it’s a gateway to brand new careers. You’ve arrived just in time.
The legal profession and our system of justice need you. Badly. We need your skill, your insight and your judgment. When I think of the American trial bar, I can think of no other group of professionals where project management skills are so sorely needed yet so thoroughly absent. We need you, and we are indeed fortunate that you graduates can honestly say–and let’s say it together again–Damn, I’m GOOD!
As never before, we face a crisis of competence in law. Lawyers are lost, frustrated and vulnerable when it comes to electronic discovery. Many imagine this “digital stuff” will pass like a kidney stone. They dream that if they just pretend it’s all basically still paper, they’ll wake up one bright morning to find that everything’s gone back to the way it used to be. But we know better. That’s not Auntie Em, that’s Schira Scheindlin; and we’re sure not in Kansas anymore. Today, we all live in Digital Evidence Land. And who among us is getting less digital? Who’s getting less wired or less dependent on information technology? There is no path back, and I, for one, love what technology makes possible. I wouldn’t want to go back if I could. Would you?
Yet, lawyers squander countless millions of dollars trying to ignore electronically stored information (our beloved ‘ESI’), they search for it using methods we know don’t work and convert it into forms it was never meant to occupy, like TIFFs and load files. When these poor choices are challenged, Luddite litigators get cranky, confused and rigid, frozen like deer in headlights. They genuinely don’t “get it,” and that’s really hard for lawyers accustomed to believing they’re the smartest people in any room. Litigators live to be seen as noble gladiators, bravely leading the charge into battle. Yet, when it comes to ESI, they’re unarmed and looking for the nearest foxhole.
Luddite Litigators need you desperately; but, handing over the reins, even to those with your expertise in e-discovery project management, won’t be easy for them. As hard as you’ve worked to graduate, it will demand even greater effort, patience and ingenuity to drag these Luddite Litigators into the 21st century. But, together, we’ve got to do it. We must help Luddite Litigators see the world has changed, and that they must change with it. You don’t need to become more like them so much as they need to become more like you. Because, let it be said once more, Damn! You’re GOOD!
You’re also the newest unknowns in the justice equation. The legal profession isn’t entirely sure where you fit. But there’s no doubt we need you, no doubt your hard-won new skills will be invaluable and no doubt a crucial role awaits you in the service of justice.
You are e-discovery’s newest pioneers. You are destined to be the trusted guides who will—who must–help lawyers, judges and litigants evolve. You will transform electronic discovery from an ugly, expensive task we endure and bungle into an efficient, effective tool wielded by craftsmen.
In trying to learn more about the nine of you I read each of your profiles. You’re an impressive group. Rolesha Brown’s profile particularly caught my eye because it featured a pithy and profound quote attributed to “author unknown” that went, “The reality of electronic discovery is that it starts off as the responsibility of those who don’t understand the technology and ends up as the responsibility of those who don’t understand the law.” The nine of you are destined to help bridge that gap and put the lie to that profound and pithy observation.
By the way, Ms. Brown, that quote comes from an article I wrote seven years ago called, “The Perfect Preservation Letter.” So, thanks to you, Rolesha, I managed to get something profound and pithy into this speech, even if it’s an observation long past its “sell by” date! Thank you!
We live in an exciting, fast-paced time. Information technology is miraculous. The quantum and quality of probative electronic evidence that surrounds us is astonishing. We are the fortunate few who’ve broken through the apprehension. We aren’t afraid of complexity or numerousity. We embrace the information deluge. We’ve learned to navigate those rich rivers of digital evidence. We know all those gigabytes and terabytes and petabytes aren’t a burden but a boon that bring us closer to the truth. They make us less hostage to self-serving testimony and pliable memories. We shall know the truth, and the truth shall set us free.
We who surf digital seas are poised to lock up more bad guys and set more good guys free. More digital evidence and better managed digital evidence will foster more equitable outcomes and greater predictability in litigation. More digital evidence and better managed digital evidence promises to make justice more accessible and more affordable for all. More digital evidence and better managed digital evidence is a very good thing. It’s very much your thing. And Damn! That’s GOOD!
So, congratulations, graduates. Welcome to the spare-but-growing ranks of digitally-evolved legal professionals. Thank you for all your hard work and thanks in advance for the fine work you will do tilling the rocky but rewarding fields of justice. Be proud of yourselves, for I know I’m proud to call you “my colleagues.” Because–let’s face it–Damn! You’re GOOD! Thank you.