Asking For ‘The File’
A fundamental aspect of law practice is maintaining a file. And even though paper files are a long way from vanishing, digital information is changing what remains in paper files.
Here’s an analogy: A business client in a city with many hills asked his postal carrier why his mail, which used to be delivered in the morning, now comes in the afternoon.
The response? “I used to go up the hills in the morning, when I was fresh, and down the hills later, when I was tired. Now I am told the order of my route and required to periodically swipe a bar code to record my progress.”
Just as technology is changing how the mail is delivered, it is changing the delivery of legal services.
Eventually, all files will be primarily digital—like it or not. Paper files will be archival or demonstrative, but not working files. So what will happen when your client demands “the file”? What if you inherit a case from another lawyer? If all you get is the paper file, you will have little of what is truly there.
Even now, the paper file is becoming less and less of “the file.” Some examples:
• Years ago, we used to print out all e-mail. Now we store e-mail in databases.
• We take digital photographs of testators signing wills. They are not part of any paper file.
• Photocopying used to be the name of the game when it came to legal research. Not anymore.
• Telephone conference notes and phone messages are totally digital in our office. The same is true with in-person conference notes. And few of our faxes are printed. But these examples don’t begin to touch the magic of digital storage. Not only do you have more information available, but you can view it from all kinds of angles. You may remember a typical paper file: all documents clipped in order of filing or service, a numbered tab on each document, and an index on top with the numbers and titles of the documents. An electronic file would have an equivalent view but would also have views for documents by party filing, by sender and so forth.
You can’t just bury your head in the sand if you are the successor counsel and say, “I can function with just the paper file. I’ve been doing it for years.” That is because the more digital that information becomes, the more degraded the paper file will be. For instance, our paper files used to be meticulously tabbed and indexed. Now the paper is put in order, but that is usually it.
So let’s say you are savvy. You are taking over a case. And you request not just the paper file but also the digital information. Does that solve the problem? Not really. What if you don’t have the software to view and manipulate the digital information? What if you don’t have the digital expertise? About all you can do is try to get what you reasonably can and deal with it. What is at stake will dictate the resources it makes sense to devote to the process. What is important is that you understand the issues and try to get all you should.
What if you are on the giving end? A client asks for the paper file. Do you have a duty to volunteer to supply digital information? The answer, probably, is maybe. To the extent you know that digital information may be critical to the client, you probably have a duty to at least make the client aware of its existence.
Much like the carrier delivering the mail, the digital age can result in more control over the way we are required to do our work. That can be good or bad, uphill or downhill.