Bio: Sam Guiberson is a
consulting attorney based in Houston. He advises lawyers across the nation in
the management, analysis and trial tactics of complex document, digital and
recorded evidence cases. His e-mail address is sam@guiberson.com.
by Sam Guiberson
In the single
generation since computer ltigation support became commonplace in American firms,
the role of the lawyer as the primary agent in the organization and analysis of
pretrial discovery has faded from foregone conclusion to marginal factor.
Ostensibly, this
shift away from lawyers personally conducting their own trial preparation was
made necessary by the vastly greater scale of information now found in
discovery. As electronically generated communications and documents became the
mainstay of personal and corporate communications, word was that lawyers couldnÕt
keep up with so much information and that computer litigation support technologies
would solve the problem of analyzing so many documents.
After wading neck
deep in electronic discovery for the last decade, lawyers have realized that
there is a gap - more like a chasm- between what a string of binary code can
make a computer do with information and what a dual hemisphered lawyerÕs brain
needs to accomplish with it in preparing for trial. The honeymoon with legal
computing is over, the giddy days when technology was the object of everyoneÕs
desire, adored but never to be judged. What kind of meaningful relationship is
ahead in the marriage of litigators and computers, now that lawyers want
technolgy that respects their intellect and not just flaunt a trophy PC?
Twenty years ago,
technology advocates, myself included, told every lawyer who would listen that
litigation technology could even the playing field for smaller law practices.
Any lawyer would be able to take on cases of massive scale by harnessing
digital technology to cope with legions of facts that only the largest firms
could handle before the advent of the personal computer. Implicit in those
promises was the empowerment of individual lawyers to try complex cases without
a coterie of associates, paralegal and contract employees. Trial technology
would make it possible to try a difficult case as long as a lawyer had the
will, even if he didnÕt have the wallet.
What has become of
that idealism almost 10 years into the new millennium? While there are
certainly more complex criminal and civil trials today featuring millions of
documents sprung from computers and countless file storage boxes, has
technology delivered on its promise to democratize trial law, as it has
democratized video and print publishing, the Web and Internet commerce? Can the
average lawyer with an average budget master a big case with the aid of
technology? The answer is clearly ŌNoĶ, or at least ŌNot yetĶ.
Before
the era of personal computing, large corporate firms employed IBM mainframes in
litigation, along with a posse of technologist intermediaries to feed and care
for them. Today, after a generation of digital technology revolution, large corporate
firms hire legal technology companies with scores of technologist
intermediaries to provide them with litigation support. How did the legal
profession go forward right back to the same place?
Lawyers
didnÕt grasp that it wasnÕt just affordable technology that we lacked. We also
lacked an understanding that technology becomes effective only when people
become effective using it. Although trial lawyers today can buy computers, hire
computer experts and invest in Web based mega database applications until they
run up a litigation support tab large enough to pay for the next lunar mission,
we havenÕt learned much about the creative process of turning a computer-organized
array of facts into a persuasive argument. It
has become a common and expensive folly to believe that organizing information
is the same as exploiting it. Any farmer can tell you that having your seeds
planted in a row is not the same thing as a successful harvest.
Since
the advent of litigation technology, lawyers have been so preoccupied with
applying new technology that we have given little attention to simplifying the
equally essential process of assessing the potential value of our discovery documents
as evidence. No digital taxonomy
of electronic discovery can substitute for the venerable human craft of
creative synthesis that causes a narrative of facts to persuade a jury. That is
the part of being a trial lawyer that has to be mastered, not master-charged.
It
is hard to see the sublime creativity of trial preparation while staring at
500,000 e-mails. There is no dismissing the need to classify, code and database
discovery documents, but lawyers waste such efforts with expectations that computerized
document coding is trial preparation. Computers can only prepare lawyers to start
preparing for trial. Lighting up the keyboard with a clever six-part Boolean
search term never won over a jury. Lighting up a jury with six exhibits that
added weight and meaning to a lawyerÕs courtroom advocacy has been winning over
juries for as long as lawyers have tried cases.
How
can organization lead us to inspiration? Lawyers have to focus more upon
understanding how our creative processes translate information into persuasion.
A trial lawyer in the next technological era will need digital resources that
unify facts into theories about those facts. Computers should assist lawyers in
visualizing patterns and recognizing themes in facts, rather than just
presenting documents that share similar data.
Without
a theme, information is like stacked bricks - static and inflexible. With
theme, information is dynamic, like a string of ants who organize themselves
into a living chain to cross a puddle.
The next generation of litigation technology will organize around what
purpose may be found for a fact, rather than the mere organization of text. Search
engine prototypes using this model of organization are in development.
To
make the jump from building data-descriptive tools to building data-intuitive
tools, the legal technology industry needs to retrofit its products with Ōinsight
ergonomicsĶ – making software fit the way the human mind forms
ideas. We canÕt settle for less
than new technology that will empower computers to follow in the footsteps of creative
human processes rather than march lock step with machine logic. To produce
useful tools for litigators in the future, legal technology 3.0 will have to
mimic how good teachers, good storytellers and good lawyers bestow meaning upon
the most subtle of observations, rather than build products that only imitate
how bean counters separate the brown beans from the green ones.
There
will be much more strategic value and better economy in using technology that
organizes only those facts a lawyer thinks would win a case, rather than
organizing all the case facts, blind to their effect on the caseÕs outcome. If
we can take this extra step in the evolution of digital analytical tools, power
over information returns to the lawyer who can envision a trial strategy within
a digital haystack of voluminous discovery. Once we donÕt have to count all the beans, but just the
beans that really count, information of massive scale will be within the reach
of every lawyer who is able to see what is valuable within it and use technology
to pluck it out for a jury to see.
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