In her September 30 column in Slaw.ca, Tackling Technology, Prof. Amy Salyzyn argues lawyers’ ability to use and manage information technology is now an element of professional competence. Technology is now a driver of client service, effective lawyering and access to justice. The flip side of this argument is that screen-based technology is an inhibitor of contextual literacy. Contextual literacy is a core legal skill, without which our services are worthless to clients. Technological literacy will probably look after itself, with the passing of generations. Loss of contextual literacy, however, will be a more serious problem from the perspective of legal education and training.
I have recently encountered this phenomenon when hearing a young lawyer maintain that a contractual limitation period for an acknowledged obligation starts from the date of subsequent repudiation and not from the date of acknowledgement. This lawyer’s assumption, based on the spatial pattern of the way limitations work in breach of contract cases, had to be dispelled by mapping out the operation of s. 13 of the Ontario Limitations Act, 2002 and reading each word as defined in the statutory architecture. Once you see it, it follows the former common law on the subject, and there’s no other way to see it. Until then, it seems a wordy mess and the mind’s eye is tempted to read it the way other limitation periods are structured. In the intervening period between acknowledgment and repudiation, the limitation period changed. The significance to the lawyer, who thought he had started the action a day before it prescribed, was that he may actually have missed the limitation period by several weeks.
A significant generational divide in lawyers’ literacy is the widespread variation of spatial cognition skills among Baby-Boom and Gen X lawyers compared to Millennials. The older lawyers tend to be better grammarians and the younger ones are better at reading charts. This is a human factors issue for our profession similar to the way in which the use of a big red stop button is important to operators of heavy equipment. We need to be better cognizant of the way technology amplifies both our strengths and weaknesses. Instead of hiding our weaknesses or making light of them, we have to learn how to teach ways of overcoming them. So it is more than requiring lawyers to learn to use PC Law, Excel, or collaborative web solutions. We must develop strategies for overcoming the loss of ‘artisanal’ skills resulting from technological innovations.
We complain that people can’t read or write any more, but teaching grammar like they did in the one-room school house is no longer useful or efficacious. In law, the search for clarity and precision requires us to develop ways of teaching new lawyers that words have meaning depending on the linear order in which words appear. An example I have used is to ask a young person learning French the difference between the phrases, “neuf nouveaux bateaux” and “nouveau neuf bateaux.” Until one introduces a spatial explanation, it is not easy to see the difference between “nine new boats” and “new nine boats,” except that the latter appears simply to be an awkward way of expressing the former. In fact, the latter implies a pre-existing context in which boats are already organized in groups of nine (eg. a marina in which each pier docks nine boats), whereas nine new boats implies only an undefined number of previous boats (eg., nine new boats entering the marina). We see blindness to this type of issue more and more. Unless we teach how to overcome it, lawyers are going to be making mistakes all the time and not understanding the mistakes they made.