A few weeks ago, I wrote about the powerful and suggestive smoking gun document. At the risk of repeating myself, a smoking gun document is the Holy Grail of document investigation. And you should certainly put yourself in the best position to find them. But like the cup, the smoking gun can be elusive; and perhaps, expert investigators should work with legal teams on more productive areas like identifying material that proves or disproves the elements of a case, that solidly support crucial case themes, or that are the foundation for the story you want to tell the jury. And so, last week’s conclusion is this week’s segue to a topic near and dear to my heart: storytelling.
We all have our favorite stories. Whether it’s a folk tale from childhood; a classic novel; or the story of how your grandparents met. A well told story can leave you sitting in your car, in your driveway with the radio on, just so you can hear the ending. A well told story can make your day, break your heart, or maybe even change your life. Gifted storytellers make it seem as if words spring spontaneously from their lips; but of course, this is rarely the case. More often, but much less romantically, hours, days, weeks, months of painstaking research, writing, re-writing and editing lie at the heart of a well told story.
Nowhere is this more true than in litigation. After all the filings, discovery, depositions, motions, settlement conferences…it basically comes down to who can tell the best story. And of course, since the story told in the courtroom, it must be based on the facts. As a good story teller, you have to make sure you are in the best position to have the facts you need as the foundation of your story. Obviously, there’s a lot more factual evidence than that which is found in a document production. But it should come as no great shock that I’m going to speak to that great wealth of storytelling fodder, the multi-million page electronic document production.
If you do it properly, or if you are very lucky, you can find the facts that will help you (1) set the stage of your story; (2) describe your characters; and (3) deliver your message via your overall case themes.
Some of the things I like to look for include:
TO SET THE STAGE:
What is the corporate culture like?
How is employee morale?
Does the team work well together?
TO LEARN ABOUT THE CHARACTERS:
Find out what your custodians are talking about; what they are expressing negative sentiment about; what advice did they give?
Look beyond produced custodians to third parties; email confidantes; non-human “players” like committees or agencies and other entities.
And of course, find out what did the characters know, when did they know it, and what did they do about it?
TO DELIVER THE MESSAGE:
Did they put profits over people?
Did they lack the resources to do the job well?
Was it a one time mistake?
Did one bad apple spoiled the barrel?
The reality is that this type of investigation — one in aid of crafting a great case winning story — can be really hard to do when you are using a large, disparate team to review the collection. Traditional methods don’t accommodate both the granular and the over-arching views of what is actually happening in the collection. The smartest, hardest working reviewer is only able to develop this knowledge over the course of the review…over week, months or even years. A critical document, a smoking gun document, could easily be over looked if encountered in early days of the review. That reviewer can only make connections between the documents she’s read, and some of the patterns, like communication networks or topical trends for example, can be hard to spot: Without insight into the email communications of the deponent and an unproduced third party consultant, you might not get the opportunity to ask a critical question during the deposition. You might miss your opportunity to tell a great story.
So instead of relying on traditional document review, we suggest building a team that specializes in targeted investigation. They should understand the substance of the matter. They should understand your goals (which may be as disparate as finding support for an element of the case like “intent” or understanding the key admission you need from a deponent) and they should understand that the goals may change during the course of discovery. The team should be savvy enough to not be distracted by “juicy” but ultimately needless details. It’s also important that the team knows it is ok to say that the supporting documents that you are hoping for simply do not exist in the collection. Don’t waste time searching for something that isn’t there. Finally, your investigative team should be armed with the proper tools and have the expertise to use those tools.
You know what I’m going to tell you next: You need language/linguistic expertise in order to deal with the complexity of ESI, which is mostly unstructured text, created for the sole purpose of expressing ideas and communicating information, which are the essential building blocks of any great story. In the same way a writer will pluck ideas and facts out of every day life and use them as the foundation of a compelling story, the language/linguistic expert will pluck the most important facts out of a sea of ESI so that the attorneys can do the same. And to be sure, every collection tells a compelling story, if you have the right expertise and tools to tease it out, that is.
Finally, obviously, but very importantly, you can’t tell these stories if the documentary evidence is never produced, so be sure to craft your discovery requests to insure the most qualitatively robust collection. Dedicating the time and expertise at the beginning of discovery will pay off when you have the evidence to tell a case wining story