Applying Advanced Analytics & Visualizations
Advanced Analytics & Visualizations
The strangely quiet, stunningly dramatic, and unstoppable, Technological Revolution in Trial Practice
Robert Eisenberg, Esq.
Barrister Digital Solutions LLC
Prior to focusing my professional endeavors on Litigation Support and then eDiscovery I was a trial lawyer in NYC. Although I came to the profession ignorant of, and uninterested in, the application of technology to litigation I eventually learned how such systems can be a critical, and often a transcending element, in developing counsel’s case. (Actually, early-on, I had been captivated – as so many of my generation and those before mine – in crusading, technology-devoid and romantic culture-justice courtroom combat; found in iconic cinema, such as Gregory Peck’s “To Kill a Mocking Bird”, Paul Newman’s “The Verdict” and Al Pacino’s “…And Justice for All” – not to mention, in a somewhat different vein, Joe Pesci’s priceless “My Cousin Vinnie”, with his Oscar-winning “expert witness”, the scene-hijacking Marisa Tomei.) Nevertheless, I am chagrined to say that it seems that most litigators today do not come close to fully appreciating the stunningly revolutionary manner in which advanced data analytics – such as the email threading and other visualizations generated by KCura’s Relativity and other systems – are capable of advancing their tradecraft. I am speaking of fundamentally easy-to-adopt, and potentially trial-shaping, technical capabilities, that are at counsel’s disposal, and not the more complex tools of the practice support technologists steeped in the technical wizardry and arcana of Technology Assisted Review (TAR).
The tools I speak of should be considered, first and foremost, the domain of the trial attorney; although, of course, they, may, at first blush, seem not to be.
In this respect, I speak as both a former trial lawyer and someone who works closely in helping to craft training in eDiscovery for both trial practitioners and practice support professionals.
When I labored as a trial lawyer and I recall the tremendous commitment of time – often of the wasted variety – and stress devoted to learning all the practitioner needs to know to proceed aggressively and effectively in litigation or other adversarial proceedings, and I compare those antediluvian days to the efficiencies, productivity, speed and striking prospective that advanced analytics and visualizations can provide the litigator, I am, rendered, even still, awe-struck. (Although, again, it is difficult to fully appreciate the stunning difference in trial practice if you are not a member of my generation.)
Advanced Analytics often permits the litigator to divine everything she or he needs to know about a matter without having a wealth of previously acquired information or, even, on occasion, having practically no information, whatsoever, about a particular matter. One may only know, in very general terms, that there is a dispute; with that cursory understanding alone, such tools may allow the trial lawyer to, often swiftly, determine the key players, the custodians of vital evidentiary material, the time lines, major themes and sub-text, and virtually everything else, however granular, that the zealous advocate needs to absorb.
In fact, with these tools the litigator need not approach the investigation of a matter armed with key words or phrases, and need not perform an initial culling of a data collection using such information. Indeed, doing so may be counter-productive, since one may be introducing predilections and prejudices, such as “word bias” (not to mention those sibling barriers: “confirmation and desirability bias”) into a process that can be more safely and comprehensively approached as the proverbial clean slate.
Ultimately, optimally utilized, what such analytical tools can accomplish is to render the practitioner – and the practice support professional, as well – better, more effective advocates; indeed, more passionate story tellers, raconteurs and, yes, thespians – actors – in the staging of their particular cause. Visualizations, such as the revealing information generated by Relativity’s Dashboard Widgets, are, in reality, tools that, in some form, a novelist, or movie director, stage manager or actor would yearn for in their own vocations.
Think of the actor; in the theatre, the playwright gives the actor a play, but the actor has to tell the story. But how can that be effectively accomplished, when, in fact, the actor, at the beginning of rehearsal, is often almost completely lost? At the start of production, he or she has not internalized the traits of the play’s characters at all, and is often devoid of a feel for the all-important contextual environment in which the characters must interact. I submit, that the internal clarity that a talented actor will realize by working hard in rehearsal is provided to the litigator by the visualization-generating analytical tools we speak of here.
Used effectively, and, yes, used with a dash of panache, these tools – which are basically intuitive – open doors to the realization and propulsion of a story to be told. That’s what they are made for – even though the technical jargon, the bells and whistles and the nomenclature of the software engineer may, inadvertently, becloud their real purpose; story-telling is their ultimate raison d’etre.
And, fear not, for one can be either a “Fuzzi” or a “Techie” (terms invented at Stanford for soft and hard science individuals, respectively.) It does not matter. This nimble, de-mystifying, software is, ultimately, configured to be used by the trial practitioner, as well as the practice support professional.
It may be an over-simplification, but, none-the-less basically true, that for lawyers, actors and others in the “performing arts” (and, certainly, novelists, as well) whoever tells the best story wins. The difference is that litigators (hopefully) take and mold into a convincing, and, ideally, captivating, story facts as they exist instead of inventing them. In fact, when you think of it, these age-old trades go hand in hand, together improving and driving forward the noble cultural process that makes all of us civilized. And, truth be told, for trial attorneys, the unlikely collaborator in this effort is the realm of Advanced Analytics.
Recognizing the fact that this is true may cast these technological tools into a wholly different, and wholly illuminating, light for the trial practitioner that is fiercely devoted to her or his calling.