Why does a lawyer need a linguist? Lawyers are master wordsmiths. We spend years honing the fine art of persuasion. Rhetoric, logic, oral and written arguments. We spend the first year of law school learning how to write persuasively, how to craft a legal brief that is a thing of beauty. I have known trial lawyers who could deliver a closing argument that had opposing counsel weeping with bitter frustration over the power of their words. To some extent, to be a lawyer is to love words. Whether spoken or written, words are the currency with which our profession trades. And yet here I am, telling you that if you are involved in any litigation that involves a large collection of text based documents, you need a linguist. I am. I am telling you this with the fervor of a religious convert. Once, I was just like you. Comfortable with doing it the way it had been done for years and years and years. Then, something changed. A decade ago this year, I met my linguists.
Ten years ago, when I was introduced to them for the first time, I was skeptical. Very skeptical. I remember thinking, “OK. Linguists. Cool. Great for translating these Spanish documents.” Then I met them and they were talking about corpora of communications and identifying potentially privileged communications and using language markers for expediting relevancy review. I thought, “Huh. This is different.” And I went away for a while. I was busy, very busy doing lawyerly stuff. Well, sort of… I was actually working for an eDiscovery vendor as a legal subject matter expert and was in the process of preparing for a big document review platform sales pitch. Part of my job was to find interesting (read juicy) and legally relevant material to use in the demo.
I prepared, using traditional review methods (using search to generate a stack of documents that I would then read through, one at a time, page after page.) I struck gold! I got lucky, finding a memo from a former employee, now a whistle blower. In the memo, the whistle blower indicates to the CEO that there is something rotten in Denmark and urges the CEO to do the right thing and set the company to rights. Great. I’d found the centerpiece to my demo. Now I just had to find supporting or refuting content to round out my document set. I had over 200,000 emails and e-docs to work with. I had a name, I had a project name, I had a time frame and I had a fancy search tool. How hard could it be?
Time was ticking away. I had one good document. I did NOT want to resort to searching for curse words in a last ditch effort to locate examples of juicy documents.
Then I remembered the linguists. I was getting pretty desperate (thank goodness it was just a sales pitch, not an actual deposition.) So I called them up and told them what I was trying to do. I didn’t want every memo in this collection. I didn’t want everything authored by the whistle blower. I didn’t want EVERY document referencing the project. I wanted material that supported the author’s claim that other, highly placed executives knew about this, or other questionable deals, and had reservations about the wisdom of proceeding. Oh, by the way, I needed these key documents really, really quickly.
They laughed at me. Ten years ago, they laughed. No, they didn’t, but they wanted to. They didn’t because they are from the South and are too polite. They spoke about the infinite variability of language and the dynamic nature of modern business communication. They told me that it would take years of language research to create a suite of linguistic markers that could reliably pull back the content I was interested in. They did help me come up with a pretty snazzy BOOLEAN search query that got me a respectable stack of demo documents. I didn’t have to resort to the curse words. The sales pitch went just fine. We maybe even got the client. I don’t remember.
But that experience was an epiphany. I realized that despite my ability to frame my legal needs, to pose my question, I didn’t have the linguistic expertise to reach into a massive collection of documents and reliably, let alone efficiently, locate the critical content.
I realized that reviewing documents for crucial information and important content comes down to a couple of key things: Luck and having an abundance of time, money and human-power to throw at this part of the discovery process. I don’t want to rely on luck. I don’t want to spend my time and resources this way. In contrast, linguists have insight into language and experience working with natural language data and can leverage these in productive ways to assist in document investigation of this magnitude. Why not partner legal and linguistic expertise? That, in combination with technology that can process massive amounts of data quickly is the ideal, multidisciplinary approach to discovery.
After a decade of working with legal teams, we are convinced that the collaboration potential for linguists and lawyers has only increased over time. The legal profession should be looking to fields like Natural Language processing and Corpus linguistics for solutions to dealing with these massive collections of text-based language. The collaboration should reach across all stages of discovery. We need to collaborate with language experts in a research and development capacity, in the best research environment, working with relevant collections to address the specific types of issues that the legal community deals with on an on-going basis.
Language expertise is paramount, but it’s the application of this expertise in this legal setting that matters. After all, the linguist isn’t making a model of language, or studying language for language’s sake. The linguist isn’t making a call about what is or is not legally relevant, or privileged or a smoking gun document. The linguist isn’t deciding which case themes should be argued. The linguist studies how people use language and patterns of linguistic behavior to impart specific information and intelligence, for crucial pieces of evidence as determined by the legal team. The linguist is working with a legal expert—a trial lawyer, a litigation specialist—and applying their expertise in order to winnow down the pool of evidence to uncover documents that have the most potential and/or legal import with respect to a case. The linguist is able to leverage patterns of communication, control for extra-linguistic variables, as they co-occur with legal case themes in ways that not only contribute to the investigative process, but in ways that shape that process.
The legal community stands to gain a lot by utilizing the expertise of linguists. After all, we employ forensic accountants, accident reconstruction specialists, epidemiologists and jury consultants. Why wouldn’t we use linguists when we need to find language-based evidence? After a decade of experiencing what can happen when one small group of lawyers and linguists work together, as the exception to traditional discovery practices, I’d like to spend the next decade watching as wide scale collaboration becomes the rule.
*Suzanne is founder and CEO of Illocution Inc.