How Staying On the Cutting Edge About New Technology Can Avert a Fate Of Dressing Up Like Thomas Jefferson Pleading For Your Law License

“I had no idea that cellphones had GPS capabilities at that time…if I had known it, I’d have been on it like a dog on a bone.” [26:19]

A recent Forbes article reports on a case out of Calgary, billed as “the first known personal injury case that will use activity data from a Fitbit:”

The young woman in question was injured in an accident four years ago. Back then, Fitbits weren’t even on the market, but given that she was a personal trainer, her lawyers at McLeod Law believe they can say with confidence that she led an active lifestyle. A week from now, they will start processing data from her Fitbit to show that her activity levels are now under a baseline for someone of her age and profession.  It will “back up what she’s been saying,” says her lawyer, Simon Muller of McLeod Law…

“Till now we’ve always had to rely on clinical interpretation,” Muller says from his office in Calgary. “Now we’re looking at longer periods of time though the course of a day, and we have hard data.” His plaintiff will share her Fitbit data with Vivametrica for several months as part of an assessment period. “We’re expecting the results to show that her activity level is less and compromised as a result of her injury.”

Of course, using a client’s Fitbit data to reinforce her claims is just the tip of the iceberg. The possibilities for use of Fitbit and other wearable tech data are endless: insurance companies could demand an plaintiffs’ Fitbit log to assess the veracity of claims that an injury prevented them from engaging in physical activity; a criminal defendant could present Fitbit data showing that he was in the midst of a vigorous ten mile run at the time the alleged shooting went down.

Right now, all of this sounds very futuristic. So much so that many lawyers are likely to ignore the potential impacts of Fitbit and wearable technology, dismissing it as a shiny new fad –  like social media or mobile technology –  that real lawyers needn’t waste their time learning about.

Fair enough. Because that’s how wearable technology looks today.  But the real question is, how is that outlying, seemingly nutty tech trend going to look tomorrow? 

If you want to know, you can find an answer in the last place you’d think to look:  the oral argument (video above) before the Kansas Supreme Court of the disciplinary hearing for Dennis Hawvner, recently disbarred for inexplicable incompetence. Set aside for a moment the fact that Hawvner is dressed like Thomas Jefferson and fast forward to around minute 26 where one of the justices asks Hawver why he didn’t hunt down GPS data from cell phone towers to reinforce his client’s alibi in a capital murder trial. Hawver responds:

I had no idea that cellphones had GPS capabilities at that time…if I had known it, I’d have been on it like a dog on a bone.

In today’s context — a world where my 8 year old nephew has a smartphone, and where my teen daughter was able to trace the location,  of an iPhone stolen from her purse while at the mall down to the perpetrators’ exact address  — Hawvner’s protestations seem utterly preposterous. But truth is, he’s not entirely off base, at least on that one discrete point.  The capital trial that Hawvner botched took place 2005, and the slayings themselves occurred in December 2003.  At the time of these events,  cell phones did contain GPS functionality – but it was relatively new, and not universally known – as suggested by this August 2003 article warning of potential privacy consequences of cellphone ownership created by the new GPS feature.

Sure, Hawvner is a complete incompetent. But I would bet that a decade ago when he tried that capital case, there were lots of other capable lawyers who like Hawvner, didn’t stay abreast of technology trends and likewise may have compromised their clients. Ten years from now, do you want to be the lawyer clad in Jeffersonian garb pleading for your license because you turned up your nose at new developments like social media or wearable technology and what they might mean for your clients? I sure don’t.