Shutdown is a wake-up call for attorneys who are still not on board with today's technology.

As an older lawyer, the lesson I have learned from this coronavirus shutdown, and other numerous quarantines, is that the future of law is not knowledge, advocacy or trial skills. It is technology. Am I right?

Samuel C. Stretton.

Unfortunately, you're probably right. If there are any writers like this lawyer who are still resisting technology here and there, they were certainly hit hard by the stay at home order. If one doesn't scan their files, or have office staff that have computers at home that are able to access electronic filing and office matters, these stay at home orders and quarantines have proven disastrous.

For older lawyers—like this writer—who don't type that well, this is a wake-up call to get Dragon Dictation, learn how to fix things on a computer and learn how to electronically file motions with the court without relying on secretaries and paralegals to do so for them. It is a rude shock to realize how vulnerable a modern law firm is. This would be particularly true if one realized, during the next crisis or disaster, that perhaps their electronics did not work. If electronics did not work, most firms would go totally out of business, and run out of revenue very quickly.

Winston Churchill once said, "Never let a good crisis go to waste." What he meant was one could learn and grow from a crisis. The use of technology in the modern law firms and in the modern courts are phenomenal. It makes a crisis like the coronavirus expose those who have chosen not to keep up with technology, and still operate as if it were the early 2000s or late 1990s. What does this say for the modern practice of law? Clearly, technological people are going to be in the forefront in this generation of lawyers, but where does it leave one? This writer had the opportunity to talk to a young graduate from a top law school that works for a very large firm in New York as a first-year associate. The firm is preparing for major, major commercial and federal litigation in another state against another large and trial-oriented law firm. This young lawyer has spent hundreds of hours reviewing documents, electronic discovery, the works. There has been research on top of research. There are teams of people working on trial preparation and reviewing documents since the trial is in about two months. What this young lawyer pointed out in the conversation was that the case is being poorly prepared and tried. The issues aren't crisp. Discovery is not focused. Briefs on motions are not well done.

Of course, it is easy to draw conclusions from one example, but it would suggest that the old-fashioned skills are not placed in great value anymore, i.e., trying a case. For a case of that magnitude, one would presumably want their top trial lawyers to each have had several hundred trials under their belt, but apparently, that is not the case. Apparently, people still write out their questions. Apparently, openings are going to be read more as opposed to spoken contemporaneously. That, of course, is sad. The old-fashioned trial skills have disappeared while technology has sort of taken over, even for the pretrial preparation.

Obviously, this story might not be the story for many other major aspects of litigation. Perhaps, it is just an aberration, but even if half true, it tells a sad story about what is happening in law firms where trial skills, advocacy and old-fashioned skills are thrown away while technology takes over. Technology is the future, and, at least, for an older lawyer like this writer, perhaps I am glad my role in the future is going to be more limited. Law has always been a very personal human business, whether it is interaction with clients, jurors or jurists; that is one of the wonderful aspects of law. In this modern era of advanced technology, that aspect is slowly being lost, or disappearing.

I am further concerned about the increased use of technology, which all lawyers must now get on board with unless they want to be totally left behind, because there is a loss in confidentiality. It is illegal to text or email anything of substance. The reason is no one can ensure its confidentiality. Yet, the modern practice of law where lawyers, paralegals and secretaries are working from home, is filled with opportunities to breach confidentiality. Breaching and not protecting attorney/client confidentiality is a very serious violation and can result in the malpractice of law. It is not something that should be ignored in this technology binge that almost all lawyers are a part of.

In conclusion, certainly the quarantines and shutdowns should be a kick in the pants for all older lawyers, or procrastinating lawyers, who still need to get into the game of technology that practicing law now requires. Whether this game is sustainable and should be the future remains to be seen, but right now, it is. In the push for some firms to get into modern technology, or for those who already have and want more advanced technology, everyone should take a step back and think about the old-fashioned trial skills and advocacy, at least, for the litigation side of the practice of law. One can say to the contrary, but if an attorney hasn't tried at least 50 fifty to 100  jury trials, they still don't have their trial sea legs in place. It takes a long time to get those skills.

Lawyers who participates in list servers with other lawyers should remember to keep confidentiality.

A writer and lawyer does criminal defense and joined the Pennsylvania Association of Criminal Defense Lawyers (PACDL). I find it very fulfilling and helpful, and I particularly like their list server. It appears to help young lawyers. There are often detailed discussions of cases. My question is, is there anything wrong with that?

The answer is there can be. First, the Pennsylvania Association of Criminal Defense Lawyers is an excellent organization. It provides camaraderie and unity for lawyers who are handling criminal defense matters, which, in years past, was not available. Oftentimes, the criminal defense lawyer was the only person standing up, and often, subject to much hatred and criticism in a community when they were just doing their job and representing individuals charged with crimes. There is now a network of lawyers who will assist each other. There is an amicus committee that helps lawyers who are having problems. Experienced lawyers will respond to questions regularly on the list server, which is particularly useful for younger lawyers. The only caveat is that one might not want to show what little they know to their colleagues. One of the aspects of being a lawyer is, at times, figuring it out yourself so no one really knows how limited your experience is until you get the experience.

On the list server, at times, an attorney might give detailed case studies and ask for help or guidance. Obviously when figuring out the county the lawyer is in and perhaps checking court records, it becomes pretty clear what case they are talking about or what judge. Then the question of confidentiality arises. Rule 1.6 of the Rules of Professional Conduct is a very broad confidentiality rule. This rule is often honored in a breach. Anyone who goes to legal seminars, particularly trial seminars, has these wonderful and sometimes very useful war stories about cases where much can be learned. The problem is much is also revealed and part of that is confidential information, or confidential issues. A lot of lawyers learn from this experience and benefit, but the problem is if the lawyer breaches the confidentiality of their client in the case. If the lawyer's client was sitting next to them, the client might not be as well pleased as the lawyer may be of their talk once the client heard what the they might consider personal information being discussed as part of their lawyer's war story.

The same thing can happen on these list server questions. The questions have to be sanitized. Perhaps, they should just present the legal issue, but to get into detail, oftentimes, they expose more than might be necessary.

On the other hand, to be able to ask questions and have extremely experienced lawyers provide detailed answers and assistance is very, very useful. Years ago, as a young criminal defense lawyer, there was nowhere to turn. This writer remembers trying his first death penalty case in 1980 and there was no one to ask questions of. There was no such group as the Pennsylvania Association of Criminal Defense Lawyers in 1980. The organization wasn't created until 1989 or 1990. This writer remembers calling the NAACP Legal Defense Fund asking some basic questions about voir dire and death qualifying jurors, and told they had no information to provide. That was 1980. Now, one could ask these questions and get very complete answers on the list. Further, Mark Bookman and the Atlantic Capital Defense Association also would provide excellent help and service.

The bottom line is, participation with the Pennsylvania Association of Criminal Defense Lawyers is a real bonus for both young and old attorneys. It has filled a void, which once existed, and provides a support system that lawyers sometimes need. This writer, as a young lawyer, experienced irrational anger such as receiving death threats repeatedly, and witnessing law office windows being smashed, etc., while working on unpopular cases. Nowadays, one has an organization that will assist and support the lawyer that once did not exist. Despite the good, every lawyer who participates in the list servers with other lawyers has to remember to keep confidentiality. The confidentiality of clients must be protected even when one is seeking answers as to how to properly help to represent a client.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.