D.C. Roundtable
Excerpts from a presentation given at Litigation Support Managers Meeting
Washington, DC February 27, 1998
Samuel A. Guiberson
Well, imagine yourself lying in bed, staring up at a ceiling, eyes as big as plates, thinking these thoughts: Today I am pretty much solely responsible for the design, the implementation, and the management through trial, of all computer litigation support and court technology, to be applied in what was said to be the most historically significant criminal trial of the modern era. And, oh yes, you also have to double the size of your own organization and train them. You have to figure out how you're going to organize discovery ranging in the, maybe, the low mil. You're going to have to choose and install hardware and software, train an ad hoc law firm created for the purpose of doing one case. Most of whom have never worked together before and some have never practiced before. And all of whom, with the exception of one or two, are novice level computer users. You're going to have to do that in six months. And then your going to have to manage the continuing litigation support work from the courtroom, while you're conducting all the defense communications in and out of the courtroom while trial is in progress. And you think, I know my first thought was, this is the experience of a lifetime. And as I drug myself through the outskirts of Denver, leaving after the trial was over, I thought this is an experience that I want only once in a lifetime. And I want you to know that all, all to the last one, of the medical professionals who are helping me to recover from post McVeigh trial stress syndrome, thank you for allowing me to speak. Since I've been out of physical restraint they want me to get out and talk about it.
I do think I that came away with a lot of lessons that apply to all the other cases, in the sense I came away with generic lessons and learning that I was pleased to find as a result of that ordeal. And that's, well that's the sort of thing I want to talk to you about today. I think there, it was not what I expected in the sense that I on that, you know, as I was in there in the bed staring upward, I was obsessed with the hardware and software. What choice of what program? How would I apply applications? And lost in that naivete that hardware and software are really what computer litigation support in this dynamic organic process of acquiring information, structuring it, learning it, and advocating with it that. That really has anything to do with hardware and software. It really is of course a human process as all of you know. I'm not telling you anything that you don't already know. It is a human process. It is an organizational process. It is an intuitive process. And those are the factors, which are difficult to quantify, difficult to take from one case to another. I think that I've learned in that process of moving through, matriculating through the extraordinary demands that that case put on all of us at every level, that the fundamental lesson is always the human factor. It is understanding how people work. How people collaborate using the medium of technology and how the technology medium can enhance their capacity to collaborate. To share ideas and to develop a sense of unity.
Don't underestimate in a trial, certainly with political and culture impact, media impact the power of, shall we say, the way in which that external pressure introverts an organization. You have to be very conscience in any case that has a public profile and how the impact of that external influence effects the team. You have to be prepared for that, of course. And I think that occurs in cases of far less public profile than ours was in this particular case. You have to let an organization adjust to the idea of living with each other in effect for six months. Any big case requires a level of physical and intellectual intimacy over time which is very demanding. And again, that is one of the human dimension of this that you have to consciously prepare people for the change in relationships as you proceed through the ordeal of trial in mega cases, in long cases. That they must expect the stress of long hours, and close proximity, and sometimes limited privacy to impose upon them changes that they might, personal changes that they might not expect to occur. The technology you discover, the technology is scalable in the sense that no matter how large these cases get, the application of the basic set of computers and software tools continues to apply. There is no point in which, at least not that I have encountered yet and I've done, I don't know, several over million document cases, that we have never really met the threshold where the applications ceased to meet our expectations. What we did find is that the human experience is not scalable, the bigger more complex the case, the more the physical and emotional toll that it inflicts, to some extent, upon the people who participate. So, even as, and I am strong on using, I guess, technology as a catalyst for everything. So we try to structure the technology, to provide for collaboration and interdependence early on so the people appreciate that they are part of a coherent whole that is striving together to accomplish something.
One of the problems we faced, of course, was first trying to double the scale of the organization that we were to deal with the scope of what we were confronted with. And how, what we do, in my office, to try and acclimate people who have not had the kind of highly collaborative, digitally based method of collaboration and exchange of information and sort of group building that we do is based upon very, let's say, information rich communication with one another so we bring in four or five new people that we're going to try to educate very quickly to our somewhat unique methods the first thing we do is throw them down in very close proximity to each other, each with a different monitor and tell them to communicate with each other only through the computer. So we begin build a sense of an ensemble, the digital ensemble. The ability of people, not to turn around and communicate with each other verbally, but to use the computer network, an old phrase these days, you know, the network is the computer. Well, not only is the network the computer, the network is the organization. The organization of the defense team in a complex litigation case is based upon the collaborations and exchanges of info, the sharing of resources that exists in the network. Anyone who is not totally immersed in a networking environment, not just, I'm talking, not just wires, but a true lateral, circular democratic and egalitarian exchange and access to all the information that relates to trial, is not going to grow. The hierarchies attending to be anti-competitive in legal organizations and in business organizations, hierarchy within network design is a also tending to be counterproductive, because the more you compartmentalize the knowledge of an individual member of the defense or of the team, in our case, of course, the defense, the more you narrow their capabilities to reach broadly through a large body of information and educate themselves about what is significant. One cannot see the sunrise over the ocean through a hundred different portholes on side of a ship. One must see it as a whole. Holistic integration of the human resources with the information in trial is essential if you want smart people to do smart work, to advance your cause.
Don't design how you are going to utilize technology in the courtroom abstractly. Don't try to do it back in your offices if it is not done in the court space with an eye to the trial dynamics then you're going to end up with something that doesn't work for you. And I don't mean simple things like a little more glare on your screen as you would want, I mean problems like there are two monitors at each table but there are four or five people sitting at each table. And because you have this necessary and primary dynamic between people like clients and lawyers and which lawyer sits to which side of the client and which lawyer needs to sit next to which other lawyer and those parts of the professional functioning of a legal team in court, that kind of take precedent over where the monitors are, you invariably find the least technologically adept lawyer sitting at the seat in front of the monitor where the keyboard has been placed. And the result is what? The effective denial of the resources made available by, in court or by the defense team, because all the lawyers who know about computers may not be sitting in front of them and you know that really does put a damper on what you do with your litigation support system. Trying to whisper ALT F5, move the mouse, missed it! Back. You know, so great design, great architecture-...the pyramids collapse after youve built them because the wrong lawyer is sitting in front of the right monitor. These are real problems. So what you end up with is a lesson to take with you that I have yet to see frankly a courtroom that was better for being planned by someone who was not a lawyer working in it.
I found that one of the problems one encounters in a particular courtroom setting where the counsel are not in control of the performance of the technology there are certain problems emerge that can hurt each and every side in the lawsuit. And that's why there is a tendency I think, in some courts, to presume that the introduction of a novel and of a dimension of advocacy that is computing and digital display, and digital components of evidence of one media or another, poses a threat to the court's authority over the course of the proceedings. In fact, my experience has been that it doesn't. I mean, if one is a renegade lawyer, one can jump up and blurt something out and the court does not have a button that he can turn you off to can prevent this untimely untoward, you know, excitation in the middle of an otherwise dignified proceeding. The likelihood that the technology, in fact over several dozen tech cases, hi tech cases I've done, is that the technology in and of itself will result in some disturbance in the proceedings is really no different than some lawyer going ballistic in the middle of the courtroom. The judges of our courts trust lawyers to remain composed they might also, by extension choose to believe that the technology those well composed lawyers use will also remain composed and allow, say except for some sort of kill button, allow the technology to be in the control of both sides.
I'm sure that everyone in this room has a case which is large enough and, to be let's say, put the principle attorneys in court and essentially displaced from the law office based decision making processes for long periods of time. So what we did by making the virtual law office and the virtual court office was allow lawyers, who were the principles in the case, to maintain communications and connections to the ongoing processes of work being performed in the office and in the field and of course online and more importantly between ourselves. Because as a criminal defense lawyer we always worry, we all worry about, well let's put it this way: sometimes everybody sitting at the table with us is not necessarily a nice guy. Now my clients always are, but sometimes there are people sitting over there who are not pleasant. I do not necessarily want to be seen going, taking a piece of paper and going, here pass this to Fang Tooth's lawyer. And you know this I mean this is an easy pantomime. They get the sense that there in fact may be a conspiracy between us just because of the way the lawyers act. So I didn't want to have a lot of paper shuffling around because I always thought it works against you. And so, the ability to use chat functions quite discreetly over Local Area Network is something I found quite useful, tactically useful. It limits the amount of ya-ya between lawyers of course that way your opposition can only sense the moment of panic. You know, look at each other, (unintelligible) "I didn't say that, what do you mean?" When we can all, I can accomplish the same state of utter panic and despair by going. So, by having ongoing chat capabilities between lawyers, you see, we can get a lot done. We can get a lot done in the office and we can get a lot done on the Internet. We can do all those initial things, like research if we need to. Ha, too late for that!
