Document Analysis in Criminal Litigation

 

Steven Keeva

ABA Journal,  May 1990


 

When Houston attorney Ed Mallett agreed to represent a defendant in the criminal antitrust case of U.S. v. Allstar, he knew he needed help. And he knew where to get it.

Enter Sam Guiberson, another Houston lawyer with a passion for giving criminal defense attorneys a technological edge in large, document-intensive cases.

Allstar was just such a case, the kind both Guiberson and Mallett point to when discussing the government's intrinsic advantage in criminal litigation. "Unlike the government, the defense is not entitled to obtain prior testimony of government witnesses, nor are they allowed to take their own depositions," Mallett explains.

Guiberson sees it as his job to redress this balance by using both the latest technology and the analytical expertise he has developed in the course of several complex cases, including the I-30 savings and loan case and several labyrinthine electronic-surveillance cases.

"We were confronted with more than 300 boxes of documents stored in a depository in Houston," Guiberson says. "We had to classify and develop the evidence and create a system that would be lawyer-centered and would ultimately serve Ed and me at trial."

To do that, he started building a database, using teams of paralegals to code and input the information.

Guiberson says that he tries to break down every conceivable component of the case into "a hierarchy of techiques and analysis. We do this all beforehand, so that by the eve of trial we are working with the by-products of computer processing, rather than still coping with the processing itself." The computer system Guiberson installed in the federal district courtroom in which U.S. v. Allstar is currently being tried is arguably the most sophisticated ever used in a criminal trial. "We asked for the judge's permission to wire the courtroom," Mallett says, "and he said that as long as it wasn't noisy, it would be okay."

The non-intrusive nature of the technology which includes lap-top computers, a laser printer and a fax machine'has so far performed to the judge's satisfaction. "The jury simply sees a lawyer with a lap-top," Mallett says.

"They don't realize that it's wired into the network back at the office, which is staffed with paralegals who have access to all kinds of information" that can be faxed or sent by computer back into the courtroom immediately.

The case, which concerns allegations of price-fixing in the specialty pipe industry, is particularly well-suited to the "macro-analytical" capabilities that Guiberson says automation makes possible before and during trial.

"We're able to take whole industries, entire years of sales, and model how these transactions occurred," he explains.

"We can look at how organizations related to one another through correspondence and transactions over the years. By doing that, the litigator is able to evaluate the merits of his case or of his opponent's case through modeling realities, creating an organized system that measures the effects of the evidence."" This, he says, is new.

"In the past, we've always had to deal with the details, but now we're able to deal with a whole universe of facts and test whether our understanding or interpretation of those facts is supportable in the information itself," he notes.

But computers, Guiberson stresses, do not do this highly complex work by themselves.

"Most lawyers approach computers as if they were microwave ovens and apply them to cook old recipes more quickly," Guiberson says. "But what's needed is really a new chemistry of thought.

"So the question is what computer or what software to buy is really not the crucial question. The questions that matter are, How do I have to change my process of trial preparation, my process of organizing and relating to my staff? How do I teach people to analyze documents succinctly? A whole new approach has to be developed out of the necessity of using these new tools."

The system used in U.S. v. Allstar represents the pinnacle of Guiberson's techno-analytical knowledge so far, and as such may be a precursor of new ways to work with evidence in complicated criminal litigation.

Ed Mallett, for one, has no doubts about the value of Guiberson's approach. "The government gave us the key to 300 boxes of material, but no road map or guide to them, Sam had to build that guide. We'd have drowned a long time ago without it," he says.