Recently Law Technology News published a set of articles on e-discovery certification. I stated my views in my post Calming the E-Discovery Certification Waters – Comments on LTN Articles. Subsequently I had an interesting e-mail exchange on the topic. I share here, with his permission, comments by my friend Bill Speros. Bill’s thinking is his own but was influenced by Tom O’Connor and me.  

Thoughts regarding Evidence Management Certifications by Bill Speros

The “Sham Exam” problem emerges with (some) people’s expectations regarding the meaning of the word “certification.”

The evidence management “Sham Exam” controversy doesn’t turn on free enterprises offering courses concluding with students taking examinations.

Certainly, the rising tide of knowledge elevates our industry, helps focus scarce resources on valuable pursuits or, at least, the matters’ merits, etc. So what can be wrong with obtaining an evidence management certificate and hanging it on the wall?

What the controversy turns on is this: Normally certification is awarded by an entity that has an unassailable claim to deep knowledge about a clearly defined technical domain and by an entity that has an unambiguous incentive (beyond simple test-related revenue) to insure that certification is awarded only to people competent within that domain.

Normally, to use a dated example, a Certified Netware Engineer was awarded by the Novell who developed and supported Netware.

Evidence management, by contrast, is less domain-specific technology than it is project management art. This art employs some general rules that emerge from law, some common industry expectations, various techniques and technologies, and a lot of ducking and covering. While CNEs demonstrated knowledge and skills to configure manage and troubleshoot a particular version of Novell’s network management technology, evidence managers manage.

Beyond evident management’s vague content, the certifying entities’ position is subject to another criticism- though this may be more of a private haunt than a public outcry. The criticism is that the certifying entities’ bona fides to offer certification emerge from their offering certification exams. It is a circular – or is it spiraling – assertion: “I am certified to certify because I certify.”

Beyond evidence management certifiers having a difficult position asserting their unassailable knowledge, they have a difficult position in demonstrating a larger incentive to offer certification beyond, of course, selling more certifications. By contrast, Novell had a vested interest in awarding certification only to people who could make and keep Novell networks working. After all, if a CNE couldn’t make a Novell product work, then Novell’s flagship product would be torpedoed. Absent such strategic incentives and synergies, evidence management certifiers may be criticized for offering glorified infomercials and self-affirming junkets.

All of that would be avoided or, at least, ameliorated if instead of using the word “certify” or “certification” they had used the words “graduate” and “diploma.”

But none of that addresses this prospective problem with attorneys being “certified.” This concern is not that it may be a waste of attorney time: local bar rules are likely to preclude attorneys from advertising the evidence management certification—deemed an unauthorized specialization. Attorneys’ learning is its own excuse for being.

Instead, the concern is that once attorneys are certified with respect to a particular sponsor’s standard, the attorneys may be held to account for why in real-world matters he didn’t conform to the curriculum’s high – I have heard “impractically high” – standards. Seems as though such evidence would be persuasive to a jury in a malpractice case: “You, Mr. Attorney, took a course certifying that you understand that it is necessary to [fill-in-the-blank with marketing puffery and even course content], but in this case you didn’t do that, did you?”

This is the same risk that prompts me to caution attorneys with whom I serve on a public e-discovery panels at conferences: What you say (and the certifications of which you boast) may be used against you…

I still stick with my prior post on this subject: let the market decide. The OLP Board discussed on several occasions the issue of ‘lawyer certification’ and is aware that ethical rules make this difficult, if not impossible. I agree that ‘evidence management’ entails much art. My hope is that certification, along with training and experience, will help standardize “the art” as much as possible.