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November 1999

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Trial Takes

Information that Shows Up, Not Shows Off

Information, by itself, is useless. It takes skill and craft to discern the patterns revealed by litigation data.

by Sam Guiberson

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.

Sam Guiberson is a Houston litigator and consulting attorneyin cases involving the use of technology in complex litigation, technology crimes and law enforcement technology.




mis@Habbas, Amendola & Nasseri

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