16 July 2013

Commercial Litigators Know How To Find Needles In Haystacks

Statisticians are special because, deep in our bones, we know about uncertainty. Economists know about incentives, physicists know about reality, movers can fit big things in the elevator on the first try, evolutionary psychologists know how to get their names in the newspaper, lawyers know you should never never never talk to the cops, and statisticians know about uncertainty. Of that, I’m sure.
From here and previously blogged at Wash Park Prophet on July 20, 2011.

I am a lawyer and I do indeed know that you should never never never talk to the cops.  But, only because they teach you this in law school, not from personal experience.  I practice law and need to advise clients not currently facing criminal charges of the risks, but the extent of my experience as a criminal lawyer in criminal proceedings for clients is limited to a couple of ordinance violation cases, one traffic violation plea bargain, and occasional quasi-criminal contempt of court cases.

Lawyers with non-criminal law practices in small and medium sized law firms representing mostly middle class to affluent individuals and small and medium sized business in litigation and transactional matters do have our own kinds of special knowledge and skill sets.  

One of the less well known skill sets of lawyers who litigate complex and commercial cases, as I do, acquire is the ability to find what they need from massive amounts of paper.  We know how to find needles in haystacks.

A banker's box holds roughly 3,000 pages of letter sized documents which is also about 1 gigabyte in the fattest file formats, although in compressed or memory efficient file formats, a gigabyte can hold as many as 30,000 black and white letter sized pages of text documents.

For example, there is a universe of about 200,000 to 1,000,000 pages of documents in one of the lawsuits that I am currently litigating, by which I mean all documents that in theory could be obtained from the parties or third party sources that could conceivably be related in some way to the case.  So far in the case, about 3,000 pages of documents have been exchanged by the parties (most of the universe of documents in the case are in the hands of third parties) and the total number of documents exchanged by parties in the case as additional documents are secured by third parties could easily extend to 30,000 to 60,000 pages worth before the case is over.

A typical college English major might read 1,200 pages of novels written with the goal of making people want to read them for fun in a week.  In contrast, a commercial litigator may need to make sense of more than 12,000 pages of business documents that are no one's idea of pleasurable entertainment in a week.

I've been an attorney, in this case, and in many other cases, leading a team of non-lawyers and junior lawyers in the process of making sense of a large share of the total universe of documents, figuring out where else we need to search for documents, and ultimately determining how to boil down that universe of documents that are available or could be made available down to the several tabbed binders of motion exhibits and trial exhibits that are presented to judges and juries in the case.

Often, in these kinds of cases, the outcome can hinge largely on a few sentences each in fewer than a dozen documents out of the total mass of information available so finding those materials is imperative.  

The "more true" set of facts revealed in the process of reviewing these documents and conducting pre-trial interviews or examinations of witnesses, clients and non-parties frequently reveals truths quite different from those set forth in the initial complaints and counterclaims and answers in the case, and quite different from the case as explained to you in an initial phone call with a potential client and first office meeting with a client.  

But, the path to truth is full of rabbit holes.  Often a large group of carefully reviewed documents that seemed at one time to be important, when illuminated by a little extra information and context from someone familiar with the facts, turn out to have been superseded or irrelevant for some reason.

The process of deciding what to look for, instructing people regarding what is or isn't likely to be important, getting a sense of what kind of documents are present at high frequencies in the universe of documents and how to organize them, and of seeing the important of materials that you hadn't expected to see is more art than science.  It is more of a bundle of potential approaches to try than it is something that can be reduced to a science.  Some groups of documents need to be summarized.  Others need to be examined with a fine tooth comb.  Some documents can be clearly separated into distinct groups, while others defy easy categorization.  The question of how to present the information that the documents contain clearly and efficiently is an ever present one.

Criminal cases (other than "white collar" cases) and personal injury cases typically involve the actions of a small number of individuals, in a single place or small series of places, in a very compact time frame - often just minutes.  Apart from the documentation of the medical treatment obtained in connection with these events, there is often little documentation that is relevant to the event itself.

In complex and commercial cases, in contrast, the whole often involves a complex web of many, even hundreds or thousands of distinct transactions or events, each at a different time, involving large numbers of people, often in many physical locations, over periods of years or even decades.  

Even a simple case of a default on a purchase money residential mortgage often involves hundreds of pages of paper, often multiple closings if loans were ever modified, a history of monthly payment transactions spanning many years, a sheaf of formally required and informal debtor-creditor communications, and at least one or two changes of bank ownership and changes in the relevant regulatory and legal requirements in the interim.  The complexity of a case involving a default on a construction loan for an apartment building or commercial building in invariably far more complex.  If it happens mid-project it can give rise to mechanic's lien litigation involving hundreds of parties and scores of lawyers, and this is often complicated by construction defect claims.  Mastering the detail is essential and involves a skill set particular to commercial lawyers and project managers.

No comments: