This is a live blog post from the Masters Conference session, A Discussion about the Emergence of Electronic Discovery Related Certifications. Good, bad, Indifferent? The panelists are Magistrate Judge John M. Facciola, DC; Charles Intriago, ACEDS; Tom O’Connor, OLP; and Allison Skinner, ACESIN.
[I have tried to capture accurately much of the discussion. I hit “post” as the session ends. Any editorial comments will appear in square brackets.]
Judge Facciola observes that lawyers historically prided themselves on being generalists. The rule requiring “competent representation” has traditionally been interpreted as a lawyer could pick up whatever expertise he/she needs on the case. Tells the personal story of family members, not in legal, who had sat for multiple certifications. He asks, do we need this in the legal market.
Skinner is a professor of e-discovery in a law school and a “e-neutral”. As a professor, she has encouraged her students to look into both ACEDS and OLP. She says either would distinguish the test-take and demonstrate interest in e-discovery. But the “verdict is still out” on the value.
Intriago explains his background in developing anti-money laundering materials and training and how it is relevant to developing a certification exam. 300 have taken the exam to date; pass rate is 70%. Test takers must answer 145 questions. Lawyers and staff have taken the exam, from both law firms and big corporations. Says ACEDS helps people do a better job, stay out of trouble, reduce risk, helps careers, and network.
The Judge asks O’Connor why, after all the formal education, someone should have to do more. O’Connor says law schools have failed to provide e-discovery training. He and another well-known EDD expert talked to law schools, which respond by saying “we train architects, not carpenters”, meaning that law schools view EDD as too much in the trenches and not conceptual enough.
The Judge asks if there is something wrong with law schools that they do not teach e-discovery. Skinner says data she has seen shows that only 5% of law schools teach EDD. Most civil procedures do not cover e-discovery. Skinner says law schools should teach EDD.
The Judge asks how many in room have appeared before judges who did not appear to know anything about EDD. Many hands go up. Participants report a variety of problems from lack of technical know-how to unrealistic sense of how long tasks take.
Nigel Murray comments that the only thing worse than a litigator who knows nothing is one who knows a little. He asks, how can we (writ large) train large numbers of lawyers on EDD. O’Connor’s view is that law schools have a responsibility to teach EDD as part of civil procedure. Some discussion of corporations contributing to education on EDD; Intriago thinks that would create conflicts.
The Judge asks if purely online training suffices. O’Connor says the world is moving that direction and that people learn in different ways. So he sees this as one option.
The Judge comments that some argue that licenses lead to monopoly. Should there be government licensing? Or will that drive up prices? Should courts require that lawyers have passed an exam.
One participant explains how privacy community faced training issues and now CIPP is a widely recognized credential.
Discussion about how generally we should know if someone is competent and the limited number of recognized (by special words) legal expertise. [Editorial commentary: I think this is the key question and the right way to think about the EDD training and certification question. The lack of EDD know-how is painfully apparent today. There is undoubtedly lack of know-how in many aspects of law practice that we just don’t see so easily. This is why I think the market will eventually have to decide.]