Information, by itself, is
useless. It takes skill and craft to discern the patterns
revealed by litigation data.
INFORMATION is not power. Power
is in knowing what information means. To gather information with
computers is useless unless you have influence over the
information you gather, the ability to discern what matters from
what doesn't. That capacity is the byplay between your intellect
and your information.
Data is always tasteless,
colorless, odorless, and pointless. Information does not care
how it is used, it is only the use to which you put the
information that matters. All information is ordinary except as
an answer to a question - it isn't data collation but data
interrogation that takes craft. The questions are the hard part
of the information equation because there is not a single answer
to any question put to information. Rather, there is a stream of
answers to a stream of questions. Even complex litigation
support is a child of chaos theory: the consequence of the
information you assemble is always changing because the way
information is assembled alters what it can reveal.
You gain influence over
information by discerning what patterns it reveals. What's
important are data points, not data patterns. They are important
because they are the primary way in which human beings are
cognitive.
So, how do we reveal patterns in
information? How do we mind what really matters? The only way I
know to hear what you want the information to tell you is to
organize it in the same ways in which human minds work:
recollection, pattern analysis, and the logic of association.
Recollection is simply
remembering that something is there and not being able to but
your finger on it, such as remembering some factoid from out of
the blue-the name of your sixth grade teacher. You know you have
the knowledge, you just can't remember where you put it. Then,
once you recall that the name was Ms. Jackson, many other
memories of Ms. Jackson come to mind.
Now, our obvious parallel in the
world of litigation support is a text retrieval capability. When
we want to find what we know is there, but don't know where
"in there" it is, we use text retrieval to locate
every occasion a name, place, or thing is referenced in all the
information we have. Computers have made this interaction with
information so easy that we don't predicate our search on the
presumption that the reference we seek -- "the hit"--
is even there. There is so little time and effort invested in
the search that we reflexively test the data we have influence
over to see whether it has no incidence, one incidence, or a
thousand incidences of the place, name, thing, or action we seek
(after all, one can search on all tenses of the verb
"ran").
Before the advent of litigation
computing, no one would have eyeballed 100,000 pages of
information in boxes, in search of the possibility of a
reference to Bali. It was impractical. Now, the search for an
unknown outcome in the unknown universe is commonplace
computing. It is the stuff of which Yahoo is made.
But, following the strings is not
building a cat's cradle. Our minds organize more than the
occurrence of words. They organize relationships between facts.
The classic database query, "In the five sales regions,
which sales rep sold more smidgets in March?" seems simple
to organize information around, once you know the question. In
the world of complex litigation, not everything is as obvious as
the commercial value of answering questions about smidgets,
regions, reps, and the Ides of March.
The art of the database is not in
the data, but rather in sensing what questions about
relationships in the data need to be asked. As in all endeavors,
only the obvious solutions will produce the obvious results.
A litigator needs to fathom not
only what will surely matter in the case, but also what might
possibly matter, and then capture from the information at hand
all those possibilities. A database can only be as good for
finding the unexpected as its design permits. Does it track
enough information to allow for the unimportant document to
become the most important document? Anticipating what to track,
what to record in data fields-long before you know how the case
will play out-is the key to database design.
You can't just review all the
discovery at the last moment for that freshly salient data point
-- that might take six months to capture a second time what you
didn't know was going to be important the first time. The
computing litigator has to spend the necessary time and pay full
attention to what will be sought out in the available
information. Where the global search works like a reflex in the
trial data, the classification of that information into a engine
of differentiation-a database-remains an act of reflection. What
separates the wheat from the chaff is a sixth sense for what
chaff will become wheat, and what wheat, chaff.
The third mechanism of humanity
to integrate into a litigation information system is
association. Connecting data by association isn't done in text
searches or in relational databases. Until the Web came along
with its links paradigm, litigators didn't really have a means
of exploiting the most creative way of thinking in their
preparative process. Now, we can use Web pages and the
relationships that grow between Web pages to capture a pattern
of thinking built on the nonhierarchical association of advocacy
points, ideas, and themes in the evidence.
Because Web pages organize much
in the way we organize our thoughts, building a Web site of all
our ideas about a lawsuit really just translates the traditional
trial notebook concept into something much more imaginative and
expansive than pages in a binder. Because we can connect
information in a nonlinear way in the trial Web, we can create a
path connecting significant points while allowing them to change
as the case changes.
The free-form quality of the Web
motif, coupled with the structure of a database and the linear
recovery of search engines, combines how we think with what we
need to think about in trial information. The more we exploit
the diversity of our intellectual resources in preparing for
trial, the more dynamic our influence over information can
become.
