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.