With some new technological marvel emerging every 6 to 8 hours, there is no shortage of legal technologists imploring lawyers to get on the train before we’re left behind.  Whether they get a third of all sales they generate isn’t clear, but their adoration of innovation is beyond dispute.

The problem with being contrary is that you’re immediately labeled a Luddite, dinosaur and hater. Using a great analogy,  Mark Bennett provides a particularly cogent argument as to why this is nonsense:

Buy a standard 10mm combination wrench at Sears, or at Harbor Freight, or off the Snap-On truck, and it’s going to be about the same length: 6.25 inches. You can get a longer 10mm wrench, but it is “long-pattern,” not standard. A standard 10mm box wrench has evolved to the length it is so that you can’t comfortably apply more torque than a fastener with a 10mm head can handle (around 10 ft-lbs, so 20 pounds of pressure in a small area on the palm of your hand); if you apply a long-handle wrench to a standard problem, you can easily apply more torque, and you are likely break something.

In other words, things evolve for a reason, and stop evolving for a reason as well. It’s not about hating innovation at all.

What I know best is criminal law; in criminal defense there is little room for innovations to fail. If I try something radically new in the courtroom, and it flops, someone is liable to go to prison. (Nobody has to know that it was my innovation that lost the case, which creates another problem for courtroom innovation: it’s difficult to measure success.)

This is not a paean to the old ways, but an obligation not to let the use of unproven innovative techniques, what we often call shiny toys, cause harm to another.  Despite technology, the core job remains unchanged, to zealously represent our clients. The only purpose to technology in the courtroom is to allow us to do that job better.

Will it?  Does it?  Which of your clients is willing to put his life on the line to find out?

Despite the youthful arrogance that presumes that old-timers know nothing about innovation, we too were raised with it in our own way.  I never ate a fresh vegetable at dinner growing up, as every piece of brocoli was freeze-dried by Clarence Birdseye and my morning orange juice came from a jar called Tang.

It was the space age, and if it was good enough for our astronauts, it was good enough for me.  It took decades to realize that most of the good things about vegetables were lost in the process. It was quick and easy to make, and time-saving innovation was all the rage.

What old-timers also know, however, is that we often fail to appreciate what we give up in the process of embracing innovation.  We know how many times innovations that seemed so promising eventually failed, or were revealed as a fraud.  We know that the trade-offs that once seemed worthwhile later turned out to be less than fair; Tang was simple to make and less expensive than orange juice, but it tasted, well, lousy. This was not the hey-day for food, as Swanson TV dinners were considered the height of haute cuisine.

This is not to suggest that innovation is bad. Not at all. In the past two decades, lawyers have adopted far more by way of innovation than in the five decades before.  We use copy machines rather than carbon paper. We use computers, allowing us to crank out 37 page contracts where two page contracts used to suffice. Okay, that may be a bad example.

We communicate today with near immediacy, whether by email or cellphone, when before we sent a letter and anticipated a response within two weeks.  On the plus side, we can reach each other when we need to. On the minus side, we can be reached when we don’t want to. Pick ’em.

In the middle there was the fax machine.  Remember them? They were all the rage for a while.

While those of us who aren’t first on line for the next gen iPad have to endure the sneers of the techno-razzi, the underlying assumption that every device with an “i” before its name is worthy of adoption is flawed. They may well be, though I suspect many will admit in confidence that they really can’t figure out a use for some of them or how they are any better than last week’s toy.  As Bennett notes, a lot of products have to fail before one emerges as offering an advancement that we can rely on to improve our ability to zealously represent our client.

You want to use the newest iToy for your personal enjoyment? Knock yourself out. If it impresses your friends and neighbors that you are the first on your block to have the latest innovation, all shiny and glimmering, and you’re not inclined to move to a better neighborhood, then be first on line at the Apple store and flash it around while the other hipsters drool.  This post doesn’t mean that you can’t have any toy you want, and can afford, given how many techno early adopters seem to be perpetually short on rent money.  But it’s your life.

The difference for lawyers is that we do not have the right to place our client’s lives in jeopardy in order to see whether any particular innovation will pan out.  This isn’t a matter of discussing, or arguing, whether some new device is the coolest, most innovative thing ever. This is a matter of putting the client first, even if it means using the dreaded yPad because the computer froze and your notes for cross-examination were lost.  Try explaining that to your client.