One Exhibit You NEVER Want to See
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Can you recall watching some case where an exhibit like this might
be appropriate? This is one trial exhibit you never want to see – at least as the
Defendant in your own trial. I can tell you that I’ve seen plenty of cases
where a client might have had a decent chance of prevailing, had they decided to
try filing something like this.
With Florida recently joining, over half of the States have now
adopted the revised version of Rule 1.1 in the ABA Model Rules of Professional Conduct. The original Rule 1.1
states: “A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.” Fair enough.
The bonus comes in the “new” added language, which includes:
“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.”
The exhibit shown here is not part of an actual Complaint.
It was created specifically for this article. However, the risk is very real,
given the significant advances and advantages of technology, coupled with the
relatively slow adoption of state-of-the-art legal technology. That risk
applies to its use in “competent representation.” Whether it would be something
like dismissing the capabilities of e-Discovery, failure to search social media
accounts, or suffering a devastating loss in trial because you didn’t have
enough time to present your entire case (without using technology), this is not
where any attorney wants to be – in the Defendant’s chair.
Note that Rule 1.1 doesn’t state that the attorney must know
everything, but it does imply that counsel should at least know about everything. You don’t have to be
an expert, but you may need to call one. There are readily-available experts in
nearly every facet of legal technology.
Some language included in many complaints filed states the
following at some point: “…knew, or should have known.” It can be pretty hard
to get around that – especially when it is so clearly stated by the ABA.
Now, if you’re still looking for some good excuses, you
might want to check out ten of the best I could come up with: “Why You Should NOT Use Technology in Your Trial.” Otherwise, please don’t be
THAT attorney!
