Bar News - March 16, 2016
New Lawyer Column: Pondering Podcasts, Technology and Millennial Lawyers
By: Jamie Myers
The year was 1999. Cellular phones were only beginning to burgeon into the institution they are today, and the Nokia 3210 reigned supreme. On Jan. 13, 1999, Adnan Syed, an 18-year-old student at Woodlawn High School in Baltimore, Maryland, used his cell phone to make and receive several phone calls that would later serve as critical evidence in his prosecution for the murder of his ex-girlfriend, Hae Min Lee.
Some readers may recognize Syed as the subject of Season 1 of Serial, a widely popular 10-episode podcast series that reviewed and cast doubt on the evidence used to convict Syed of Lee’s murder. At trial, prosecutors argued that Syed was guilty based on a lack of a solid alibi and cell phone data placing Syed near the site of the shallow grave where Lee’s body was found. Syed was convicted and is currently serving a life sentence. On Feb. 6, 2016, about a year after the final episode, a Maryland court began a five-day evidentiary hearing to determine whether Syed is entitled to a new trial due to unreliable cellphone evidence and his lawyer’s failure to call a critical alibi witness.
The cellphone evidence is of particular interest because it underpinned the prosecution’s entire theory. The prosecution used Syed’s cellphone records to pinpoint his locations on the day of the murder through expert witness testimony analyzing the cell towers off of which Syed’s incoming and outgoing calls “pinged.” However, evidence at trial overlooked a disclaimer that AT&T had attached as a fax cover page to the phone records, which indicated only outgoing – not incoming – calls were reliable to determine location. The prosecution’s expert witness, Abraham Waranowitz, has since filed an affidavit stating that he had not seen the disclaimer, which would have affected his expert testimony. This begets a number of questions: How is it possible this disclaimer went entirely unnoticed? Why was Waranowitz permitted to give his expert opinion without even addressing the disclaimer? Why wouldn’t the judge screen it out as unreliable expert testimony? Why wouldn’t defense counsel highlight the weaknesses of that testimony? Was it due to the lawyers’ lack of technical proficiency?
In 1999, cellphones were a relatively new technology, and using cellphone records to track a user’s location was cutting-edge. Now, I can open my “Find Friends” app on my iPhone and tell you that my sister is at her house exactly 1,748 miles from my location. As Syed’s case demonstrates, the ubiquitous nature of technology today forces the legal profession to examine how it understands and uses ever-changing technology. To provide competent representation, lawyers must understand how technology can affect both the merits of their cases and their manner of practice.
Both the ABA Model Rules and the New Hampshire Rules of Professional Conduct recognize this essential understanding. The Ethics Committee comment to New Hampshire Rule 1.1, states that to provide competent representation “a lawyer should keep reasonably abreast of readily determinable benefits and risks associated with applications of technology used by the lawyer and risks of technology lawyers similarly situated are using.” This rule is elastic. As technology develops and expands, attorneys’ competence must also expand to keep pace.
The list of ways technology can impact legal practice is boundless. It can increase productivity, save money, and protect (or put at risk) privileged information. There is technology related to important aspects of legal practice, including cybersecurity, document management, e-discovery, contact management, time management, and marketing. Indeed, the legal technology field is rapidly expanding and will almost certainly revolutionize the legal profession. Moreover, as Syed’s case highlights, an understanding of technology can drastically impact the merits of a case and client outcomes.
For all of the articles bemoaning Millennials’ (generally defined as those born between 1980 and 2000) supposed faults, Millennials are uniquely technologically competent because they are “digital natives,” meaning they are the first generation to have Internet and other interactive digital media during their formative years. As digital natives, not only are Millennials more likely to exhibit natural technological fluency, but they also are eager to use technology in the workplace and are open to trying new types of technology. For example, a Pew Research Center survey found that Millennials use the Internet, cell phones, and laptop computers at a greater rate than any other age group. Additionally, they use social media more than any other generation; 75 percent have a social networking account, compared to only 50 percent of Generation Xers and less than a third of Baby Boomers.
Millennial lawyers’ distinctive technological competency can provide unique perspectives and opportunities to legal employers. For example, new lawyers can share their social media savvy to help create a low-cost, effective marketing plan or increase a firm’s “Google footprint,” which in turn increases the client base. Rather than scoffing at Millennials’ inability to part from their cell phones (admittedly, I am guilty of this), the legal profession can leverage new lawyers’ tech-savvy perspectives to positively affect client outcomes and the manner of practice. Or, at the very least, Millennial lawyers can probably provide a really good podcast recommendation.
Jamie Myers is a judicial law clerk at the Merrimack County Superior Court. She has been a member of the NHBA since 2014 and is a member of the NHBA New Lawyers Committee.