The following article by Abby Moscatel of Blacktail Law Group was first published in the Montana State Bar magazine in July of 2023.
Duty of technological competence extends to understanding impact of disruptive forces
We tend to overestimate the effect of a technology in the short run and underestimate the effect in the long run.
-Roy Amara, futurist
By Abby Moscatel
The State Bar of Montana adopted Comment 8 to the American Bar Association’s Model Rule of Professional Conduct 1.1 (Duty of Competence). “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in its law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing education requirements to which the lawyer is subject.”1
By now, you are probably familiar with using social media evidence in trials. As an insurance defense lawyer in Southern California, most of my defense verdicts or good outcomes were directly linked to impeachment evidence found on social media platforms. As a plaintiff attorney in Montana and California, I carefully monitor all parties’ social media presence.
However, our duty to be competent with technology clearly spans beyond social media searches. Disruptive technology and its impact on our practice are changing daily. Here are a few types of technology we need to know about, along with examples of how they can sneak into our cases:
Blockchain is a decentralized, distributed, public digital ledger that records transactions across many computers, so they cannot be altered retroactively.
Most people associate blockchain with cryptocurrency, and the buzz around distributed ledger technology continues to make news. Samuel Bankman-Fried of FTX Trading is being prosecuted for allegedly using this tool to defraud investors worldwide out of billions of dollars.2
However, blockchain is becoming more relevant to our damage analysis. For example, I have a case involving lost opportunity costs, and my client invests in cryptocurrency. To get the correct information to the economist expert, I need to understand what it is and how my client invested in it before I know how to identify and craft record subpoenas. By knowing what it is and how my client uses it, I can more easily prove damages during trial.
2. Smart Cities
Smart Cities are technologically modern urban areas, often municipalities, that use several digital technologies, like sensors, to collect specific data.
When I was researching smart cities in preparation for writing a book on disruptive technology, I interviewed the CIO for the City of Burbank about how he is using technology to make the city safer and more efficient.3
Three takeaways: First, our cities are collecting mass amounts of data related to traffic accidents and crime. Second, nearly everything a municipality does can be acquired with a public records request. Most of the time, video coverage of a traffic accident is long gone when my client walks through the door. But, with the record retention schedules cities abide by, I can get the data I need about the crime statistics and traffic development proposals for the scene of an accident. And third, smart cities are a growing trend because it allows municipalities to be more efficient.
I predict that cities will increasingly collect and utilize data, leading to a treasure trove of data ripe for our use.
3. Health Information Technology
Health Information Technology (HIT) is the application of information processing involving computer hardware and software that deals with storing, retrieving, sharing, and using healthcare information, data, and knowledge for communication and decision-making.
Yes, we must understand how electronic medical records are generated and edited for medical malpractice or injury-related cases. However, we also need to understand Health Informatics because it impacts the standard of care.
When I spoke with the Credentialing and Peer Review Committee Chair at L.A. Care, she told me they are using data to analyze fraud. If we understand a little bit about how data is being collected and analyzed in this space, we can ask for the correct information in discovery.
For example, suppose I have a medical malpractice case against a physician involving opioid addiction, and that physician is working for a large hospital. In that case, I determine if the physician has been flagged for writing excessive or fraudulent prescriptions.4
4. Other Emerging Tech
Other types of emerging technology are creeping into our practice, requiring us to think outside of our standard interrogatories. Here are a few:
- Artificial Intelligence (see article on page 17)
- Big Data & Internet of Things (IoT)
- Information Governance
- Digital Ethics and Privacy
- Cyber Security
- Digital Preservation
- Records Management and
- Library Science
The bottom line is that it is no longer enough to work a keyboard and back up our client files when it comes to technology and our law practice. Social media reports are not sufficient, either. We must take a close and hard look at our client’s cases, determine what information we need to ascertain, and then be able to apply traditional discovery methods to get it during discovery and ultimately admitted in trial.
Abby Moscatel is the author of the best-selling business book Tomorrow’s Jobs Today: Wisdom and Career Advice from Thought Leaders in A.I., Big Data, Blockchain, the Internet of Things, Privacy and More! She is a Martindale-Hubbard AV Preeminent-rated trial lawyer practicing in California, Montana, and in some federal Jurisdictions. She founded Blacktail Law Group, PLLC, in 2021 and can be reached by email at email@example.com or by phone at 406.318.7223. You can learn more about her firm at http://www.blacktaillaw.com.
2. Tomorrow’s Jobs Today, Second Edition, by Abby and Rafael Moscatel (2023)
4. Thompson., T., and D. Brailer. “Health IT strategic framework.” DHHS, Washington, DC (2004)