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Archive for April, 2008

In all aspects of life today, bigger is better, so why shouldn’t this apply in the courtroom? With many computer screens, projector screens, and televisions now featuring a 16:9 aspect ratio, rather than the 4:3 ratio, document treatments should fill the screen no matter what the screen size.

By looking at the image below, which overlays the two sizes, it is obvious how much more room you get with the widescreen pullout.

Both document treatments are from Nextpoint, the only web application on the market today to scale proportionally to the proper screen aspect ration. And when presenting evidence to jurors, bigger is always better.

It’s a difference you can really see! The individual images follow.

A 16:9 Pullout

Now, a 4:3 Pullout

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A recent post on law.com discusses the maturity of computer assisted search and review technologies. It describes some recent tests that were run comparing the predominant boolean search methodology with newer approaches such as concept searching, clustering, taxonomies, and um… Bayesian classifiers of course (calculating probabilities based on known relevant results). What they determined in summary was that no single search algorithm outperformed boolean searching, but when combined with boolean search more responsive documents were returned. Unfortunately, as you may have guessed more nonresponsive documents were also returned.

So is there hope for automated computer review technology? I wouldn’t get rid of your manual review process, but I’m a firm believer that computer assisted review will continue to improve and play a valuable role in the future of document review. One possibility is a hybrid approach along the lines of performing a narrow key word search, manually reviewing the results, and then implementing clustering and/or a bayesian algorithm on the remaining document set. Unfortunately, there are still some critical issues preventing this hybrid approach from taking hold.

First and foremost, we need transparency in the search algorithms. Transparency is really what makes boolean searching so powerful. If you could implement an alternative review algorithm with the same level of transparency, then it begins to work. For example, you could run a search that shows documents with a similar layout as those containing some critical keywords. Perhaps that helps you find other brochure documents that market tobacco as beneficial to your health but don’t explicitly state “good health” or “tobacco”.

Second, there needs to be an open platform for applying these algorithms in your evidence management repository. We run into occasions where it makes sense to implement a clustering algorithm for a case, but in doing so we need to port 10 million pages of documents into a separate repository. It’s difficult to justify the time and cost when a review team is readily available.

So keep your finger on the pulse of alternative search and review technologies, but I wouldn’t count on manual review going away anytime soon. Without transparency you’ll never reach agreement between parties on the scope of the review. And without an open platform for applying multiple approaches, you probably won’t save any money when compared to manual review.

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Capitalizing on some of our previous posts, and frankly stating the obvious, Microsoft is making clear that the company’s strategy is moving away from the desktop.

Not that this is news to anyone here. We’ve been focused on the web as the backbone for the delivery of all of our services. We think this internet thing is here to stay.

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Earth Day seems to be a good time to think about cutting waste. One easy solution is to use less paper. The following is a quote from the ABA page on Climate Change:

“Law offices tend to be paper-intensive, and the production and disposal of paper consumes substantial amounts of energy and generates significant quantities of greenhouse gas emissions. One large Washington, DC. law firm buys about 100,000 sheets of copying and printing paper per attorney per year, which is almost one page per minute of attorney billable time, and which amounts to a half-ton of paper per year. The life-cycle of a ton of paper, from production to disposal in a landfill, results in the generation of about 11 tons of carbon dioxide (CO2) – equivalent greenhouse gas emissions.”

There is an understandable reaction for trial teams to say, “This case is important to the client and the lawyers. There isn’t time to worry about sustainable approaches, especially if doing so would in any way compromise our ability to litigate this case effectively.”

Fair enough, but inevitably this leads to some wasteful decisions that do not improve the level of performance for the trial team. Instead, it will force us all to need some extra SPF 30.

Because winning is important, really important, we think about reducing paper as married to improving performance. Less paper is a natural by-product of efficiency. Instead of looking at paper reduction as a end within itself, we’re seeing that by working simpler and faster, we automatically use less paper. Some of these things include:

Better Performing Databases

Databases that are slow to boot, slow to search, and cumbersome to use, lead to printing. When it’s quicker to page through paper than electronically review, lawyers feel compelled to review in paper. We see conference rooms stacked to the ceiling on a regular basis. When “digging through the boxes” is the mode of operation, you can be sure trees have been harmed.

Secured Electronic Delivery

We used to print hundreds of slides to send as proofs, put them in a plastic binder, wrap them with packaging material, and ship them in an overnight box to be sent via jet fuel. Now we post a PDF to a secured website, where lawyers can access all of the work produced over a browser on their Blackberry.

Electronic Deposition Designations

Throw away the highlighters! The days of manually highlighting a deposition transcript are over. Sad news for the color copying companies who generate three or four sets of every page of the transcript — designation or not. Our web products are a simpler and faster way to deal with an incredibly inefficient and paper intensive process.

Electronic Exhibit Stamping

Stamping exhibits electronically reduces the need for an original and copy set of the exhibits. Paper sets for archival purposes (i.e. “originals”) cannot be used by polar bears to float on when their ice caps have melted.

Tagging Not Binders

Ah the white binder with the index. It’s the security blanket for the trial partner. Tagging documents electronically allows for quick generation of an updated set of documents, without needing to replicate multiple binder sets for all lawyers involved. Faster and more current, it’s also much easier to carry a Blackberry or a laptop on a plane than a gigantic set of binders. Your back and shoulders will thank you.

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Not be confused with Supply and Demand, Comply and Command is the way we’ve come to think about the eDiscovery and evidence management processes. No offense to the serviceable 9-step process laid out by EDRM.net or the many other eDiscovery survival guides. But in our experience working with law firms, corporations, and legal technology service providers there’s no magic bullet to tackling eDiscovery. So try breaking your efforts into two distinct components and make sure you are giving appropriate effort to both.

Comply.

Overview. Bottom line, you need to follow the rules. Although eDiscovery gets talked about in a lot of different ways, Comply is the more traditional Discovery process applied to electronic information (ESI). Collection, preservation, identification, lit holds, deduping.

Success factors. Maintaining active searchable archives of email and docs makes it easy to place lit holds, search, enforce consistent data retention policies, and export. Otherwise, prepare to extract 5 years of email backups, get them indexed for search, and then remove duplicates. The key to mastering eDiscovery compliance is to get proactive. Help is on the way with hugely promising and affordable services such as Google’s Postini.

Command.

Overview. We talk about it all the time on Frank ( check out The Copacabana Rule). Honestly, most folks that we meet are doing a very poor job of command. Perhaps due to exhaustion from the Comply phase. Command is about knowing your evidence and more and more of our customers are spending the majority of their time focused on this step.

Success factors. Consolidate your evidence (from all sources) in a secure but accessible location. This means, all documents (image and native), transcripts, and depositions. Make sure to use a tool that is powerful and flexible enough to import your different file types and watch out for the services that charge extra for processing and converting those file types. Bring as much related information / meta-data into the repository as possible and get it all under a single searchable index. If you have multiple programs or files (or even printouts) to open every time you need to run a search, do a document treatment, or exchange designations you will never feel in command. Make sure that it’s easy to run reports and exchanges. Easy in / easy out is critical. Our TrialManager platform was born from the lack of evidentiary command that we experienced working on large trials.

With the exponentially growing amount of data that gets produced, it seems that eDiscovery is bound to get more and more difficult. But if you get proactive in eDiscovery compliance and build a consolidated command environment you’ll be ahead of the game and ready for the next, even bigger, case.

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Complexity’s inevitable result is failure. No matter how it’s dressed up packaged and sold, too much complexity is a bad thing. We develop really creative ways to simplify complex concepts for juries. Our technology lab makes software that simplifies really complicated data management processes.
When people ask us about the value we can add, to me its simplicity. We break down really difficult and complicated problems – visual, narrative and technology quagmires – by getting really simple about it. It has to make sense and it has to work immediately. That’s always our end goal.
There seems to be a lesson in the dangers of poorly understood complexity in the current credit crisis. I was watching Henry Paulson’s statements about policies the Treasury and the President’s Working Group were developing in response to the recent turmoil in the financial markets. Here’s an excerpt, and it was fascinating how much of the language between developing software and financial instruments are the same.
Innovation is a hallmark of our capital markets. Securitization of credit is one example of an innovation that has made more, more flexible and lower-cost capital available to consumers and companies, and stimulated competition. Financial innovation has brought these and other benefits. Financial innovation has also brought, inevitably, the challenge of complexity. In my judgment, some financial products have become overly complex. Excessive complexity is the enemy of transparency and market efficiency. Investor sentiment has swung hard to risk aversion, and now markets are punishing not only complex, but non-complex products as well.
This is exactly what has happened in legal technology. A lot of money is being invested in overly complex systems that are difficult to understand, are poorly understood for their return on investment, and in the end not used by lawyers. They require support staffs, they require IT staffs, they require platform specific resources to maintain and manage them. One look at the number of services installed on a law firm laptop and it’s obvious complexity is not only embraced — its the actual strategy.
What’s the solution? Let’s look back to Secretary Paulson.

One, stronger transparency and disclosure. The challenges of complexity were exacerbated by opacity. The best antidote to opacity is transparency and disclosure.

Is your technology strategy transparent enough to avoid turmoil? Now is a good time to ask.

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We’re often asked what are the steps involved in getting a great presentation together. What does one do first? There is no shortage of advice so we’ll add another list and tailor it specifically to the litigation.

1. Develop the trial themes.

Aim for four to six. This is where it starts its that simple. Don’t bother moving ahead without doing this, it will waste a terrific amount of time.

2. Get command of every piece of evidence in your case.

Period. Hard to imagine how you move forward without this if you are a lawyer. Somehow this has become acceptable to compromise on. That’s a mistake. Every piece of evidence must be available to be searched at a moment’s notice. This is our Copacabana rule of litigation.

3. Make a slide with each piece of evidence.

Use PowerPoint or Keynote or just cut them up with scissors and paste them on a sheet. The only rule is each piece of evidence can only be on one slide, and each slide and can only contain one piece of evidence. If the evidence requires a lot of setup or a lot of explanation, then the evidence is probably too circumstantial to be useful in court.

Oh and text slides of legal analysis, reasserting the four additional parameters that the evidence does not meet, are not evidence. Documents, deposition testimony, photographs, voicemails. Evidence, not analysis. We see trials with literally millions of pages that come down to 5 documents. This process is meant to figure out which 5 documents you want it to be about.

4. Organize the evidence by the outline

Every item in the story outline from #1 should have at least one slide but probably more from #3 with a piece of evidence on it. Rearrange the deck until its in the order of the story. If there are story lines with no evidence, leave them out, no one will care about stuff that can’t be proven. Like that the plaintiff as a history of mental instability. These make for fun stories over a beer after a late night at work with your cohorts, but that’s about it.

Of course, unless you are skilled enough to get it in. Good lawyering counts for a lot. Then it’s a great slide! This is where great lawyers spend their time, getting good facts for their case into court.

5. Practice out loud

Don’t worry it will be terrible. Don’t do this in public either, do it by yourself where your humilation and anger at the world won’t be seen by others.

6. Cut the bad stuff, keep the good stuff

7. Go back to #4

8. Show up early on game day

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