When I learned to practice law in the mid-1980s, copies were cheap and email was non-existent. Big firms working on big cases took a uniform approach to documents: copy them all and review them all. A lawyer formulated his strategy based on the documentary evidence, after a complete review. Witnesses were prepared by lawyers to testify in accordance with the story told by the documents. Not looking at every document was simply malpractice.
However, every associate figured out pretty quickly that no matter how big the case, all of the important documents would fit in a binder, even if it was a big binder. Every associate also knew better that 50% of those documents came from your client when they sent the case to your firm. Older lawyers shook their heads. Back in their day (i.e. the 1960's), they sat in their opponent’s office, reviewed the documents, took notes and copied only the critical ones. In the “old days,” a lawyer learned the story of the case from his/her client and focused on the documents that advanced or refuted that story.
Today is different. I am in the middle of a $10 million case. The facts are not extreme. Fewer than ten witnesses had important roles. Fewer than twenty depositions will ultimately be taken. At its core, it is simply a breach of contract dispute. However, on one side, the first cut at a document production resulted in 800,000 documents. Our opponent announced a modest 400,000 documents. Most of the documents identified by both sides were emails and spreadsheets, and much of it was duplicative. No one ever boxed it, but the documents for both sides would probably have approached 1,000 boxes. To make matters worse, we were on a judge mandated fast track; all discovery was allotted six months.
Using 1980’s thinking and methodology, it would take forever to look at all the documents. At current associate rates, it would also have been punishingly expensive. Even if you did review all of the documents, how would you effectively communicate the results of the review to trial counsel?
How do you solve this problem? The answer has two parts. First, effective use of technology – the subject of part two of this article. The second is a change in mind set. The 1980’s must go the way of the bag phone. Surprisingly, we are in the neo 1960's. (Do you want a martini and narrow tie to make you feel more at home?) Managing a functionally limitless database of evidence means effective searching. (Remember the guy with the yellow pad sitting in his opponent's office?) Effective searching means knowing what you are looking for when you formulate your search. We are back to interviewing witnesses, focusing on the story and documents they give you, and searching based on their story.
In a mega paper case, you cannot find the story after reading the documents. You must know it before you attack the documents. The problem with very large quantities of documents is that even with limitless paralegals and associates, a bottomless wallet, and unlimited time, a review of all the documents is meaningless unless the team reviewing knows what to look for and what to report or tag. Winnowing 500 boxes or even 1,000 boxes down to 50 doesn't help; 50 boxes is still too many for a lead lawyer to absorb. Even worse, these documents are not helpful if they are the wrong documents.
From a big picture standpoint, what should a lawyer do? Talk to the witnesses at your disposal. Look at the documents the witnesses say are critical. Hire experts early. Test your witnesses’ stories with the documents available and the help of your experts. Do targeted searches to see if your witnesses’ stories hold up to the "paper" evidence. Formulate a tentative trial strategy and attack the documents with that strategy. Finally, monitor what the searches are discovering and adjust your strategy as the evidence changes. Working hard once meant long hours looking at documents. Working hard now means thinking critically about the case and making important decisions early in the case. Copy it all, read it all, and produce it all was a lazy lawyer’s early case strategy. Email has killed the lazy lawyer strategy.
The law is going back to being a people business again. This time it’s because of technology and also in spite of it, and this time some of those people are your electronic discovery vendors.