![]() 6 And in an age of escalating use of technology by bad actors for everything from revenge porn to cyberstalking, cyberbullying, and adopting false internet personas, it has become critical for judges to have a working knowledge of the technology underlying such causes of action. A comment to Rule 2.5 broadly defines judicial competence as requiring not only legal knowledge, but also the “skill, thoroughness and preparation reasonably necessary to perform a judge’s responsibilities of judicial office.” In the Digital Age, this could encompass everything from an awareness of cybersecurity risks such as ransomware and how court systems might be affected, to the competence needed to assess the quality of counsel’s internet legal research, 5 and to knowing how to ethically use social media in one’s professional and personal capacities. Perhaps the closest that the ABA Model Code of Judicial Conduct comes to supporting such a duty can be found in two provisions. Yet while lawyers have their own model code of conduct, this code doesn’t contain a counterpart duty of technology competence for judges-and individual state judicial codes of conduct don’t either. Much has been written recently regarding the revision to comment 8 of American Bar Association Model Rule of Professional Conduct 1.1, which states that lawyers have a responsibility to stay abreast of changes not only in the law and of practice, but also to be conversant in “the benefits and risks associated with relevant technology.” 4 To date, 38 states have adopted this language or a variation of it. 2 Seventy percent said federal judges should receive more training and education on e-discovery technology and practices, while an additional 8% called for “extensive increases” in such training. In a 2019 survey of federal judges conducted by tech vendor Exterro and EDRM at Duke Law, 56% agreed that lawyers’ tech competence in e-discovery matters was adequate, but only 30% of those surveyed were satisfied with their own level of tech training or education. Judges themselves are aware of the problem of insufficient tech competence. As the executive director of the Alaska Commission on Judicial Conduct observed in 2014, “Both the effectiveness of an individual judge and the imperative to promote confidence in the judiciary require technological literacy.” 1 From overseeing technology being used in courtroom presentations, to ruling on discovery and evidentiary issues involving digital sources, to ethically using technology like social media themselves, a judge’s role demands tech competence. And it’s not simply a matter of a judge not understanding how texting or cloud storage works court operations from docket management to the courtrooms themselves are increasingly driven by technology, and indeed the issues that judges must rule on frequently implicate matters of technology. ![]() ![]() ![]() Yet despite this warning, some judges are not up to speed on the technologies around which modern life revolves. You don’t have a clue what’s going on in the world today.” He then explained how slow, incremental changes would not stave off the exodus to alternative dispute resolution and arbitration because the “economy’s moving too fast, and you are moving too slow.” ![]() Browning And Xavier Rodriguez 07:50:03ĭuring a conference of state supreme court chief justices, after hearing a discussion of how judges can’t be told what to do, a guest (counsel to a large corporation) is reported to have said: “I’ve got to tell you, you just don’t get it. Texas Bar Journal - April 2020 Should Judges Have a Duty of Tech Competence? ![]()
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