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Judges Know Nothing About Technology, Judge Says

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By Casey C. Sullivan, Esq. on July 31, 2015 11:58 AM

While the NSA is out training 13 year olds to "hack the planet," all those olds on the bench are still struggling to get by without their gramophones. At least, that's the idea you might get from tech journalists complaining about the tech illiteracy of an ever aging judiciary. They're not alone in their assessment, however.

Federal Judge Shira Scheindlin, from the S.D.N.Y., agrees, telling attendees of Bloomberg BNA's Big Law Business Summit that judges are struggling to remain competent in evolving technologies. Appellate judges? They "know nothing about it," according to Judge Scheindlin.

Not a Unique Complaint

Older practitioners, for all their wisdom and experience, have long been accused of being "behind the times" by the youth. Plenty of judges -- and lawyers, too -- have struggled to come to grips with the role of technology in modern life. The Supreme Court gave a great example of this just a few years ago, when it heard oral arguments in City of Ontario v. Quon, which focused on who "owned" text messages.

It was not a shining moment for the High Court, showing that many Justices struggled to understand the basics of very common technology. Kennedy asked what happened if two texts came at once: "Does it say: 'Your call is important to us, and we will get back to you?'" Scalia wondered whether someone could "print these spicy little conversations and send them to his buddies?" Sorry, Justice Scalia, texts can only be forwarded via telegraph.

Not a Meaningless One, Either

It can be fun to chuckle at a judge's ignorance of modern technology, but that ignorance can have serious consequences. Some commentators have blamed the Supreme Court's tech illiteracy for at least some decisions viewed as "anti-innovation." The High Court doesn't seem to be in much of a rush to catch up with the times, either. Justice Kagan has stated that the Court hasn't really "gotten to email" yet.

That's a shame, given the increased role technology is playing in litigation. As Judge Scheindlin noted, technology and eDiscovery have reshaped the way many lawsuits play out, resulting in a "tremendous decline" in trials. Luckily, those trial judges who deal with such issues on a day-to-day basis are adjusting to the changes, Scheindlin said. The rest of the judiciary may someday catch up -- or retire.

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