Ride the Lightning

Should the Definition of Judicial Competence Include Proficiency in Technology?

August 31, 2015

I am pleased to offer my readers a chance to answer a timely and rather novel question posed by D.C. Superior Court Judge Herbert Dixon. To reply to the question which is the title of this post, please e-mail me at and I’ll forward Judge Dixon your thoughts.

Marla Greenstein is the Executive Director of the Alaska Commission on Judicial Conduct. Her article, “Judges Must Keep Up with Technology: It’s Not Just for Lawyers,” arrived with the impact of a lightning bolt. There is no requirement in the ABA Model Code of Judicial Conduct for a judge to understand technology. That code broadly defines judicial competence as requiring the legal knowledge, skill, thoroughness, and preparation reasonably necessary to perform a judge’s responsibilities of judicial office. By comparison, the ABA Model Code of Professional Conduct for lawyers requires them to keep abreast of changes in the law and its practice and understand “the risks and benefits of technology.” There is no similar requirement for judges, the people charged with the responsibility to rule on the admissibility of technology-related evidence and the arguments of lawyers related to those requests. The absence of any provision in the Model Code of Judicial Conduct requiring a judge to understand technology is not a unique omission. When I contacted Marla about her article, she advised that she is unaware of any jurisdiction that has adopted a Canon or Code provision that requires a judge to understand technology. Wow!

To make her point, Marla gives an example of a judge from the past that does not know how to navigate the uncertain magic of a typed message on a lit screen and solves the problem by dictating e-mail messages through an assistant, or in other situations, a judge that might be ignorant about the details of cloud computing or just how one is followed via a Twitter account, or a judge who needs to provide warnings and jury instructions on how participants in the courtroom may use social media, or a judge called upon to sign search warrants for electronic data in a huge database having significant privacy implications, or a judge who uses an iPad to work when traveling to or from home not understanding that security for documents on the device differs from that of a locked leather briefcase, or . . . well, you get the point. In addition, with the explosion of e-discovery issues in today’s litigation, is there a need for the judge to understand ESI, the definition of inaccessible, or OCR, deduplication, load files, cookies, native format, metadata, and so forth?

So, what do you think? Is it only up to the lawyers to “understand the risks and benefits of technology?” Or, should the definition of judicial competence be updated to include an understanding of technology? No one disagrees that technology is becoming more prevalent in our daily lives. No one disagrees that judges should be proficient in other skills that are crucial to their duties, including writing, researching, analyzing, and speaking. Since technology has become critical for much of our work, shouldn’t judges also be proficiency in technology?  Is the judge there merely to call balls and strikes based on the presentation of the lawyers? What do you think?

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