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An Interview with Sam Guiberson

By David Bilinsky

This article appeared originally in the Spring, 1997 LITIGATION APPS Newsletter, published by the Law Practice Management section of the ABA, Law Practice Division.

You are a trial lawyer with your own firm, Guiberson Law Offices in Houston. Tell me a bit about your practice and yourself.

SG: I am involved mostly in complex criminal defense work where the prosecution relies on technologically oriented evidence, such as digital or communications surveillance, or where the defense must develop high-end computer litigation support to make its case. Because I have been involved in large-scale cases for 17 years, my practice is organized around using a broad array of technology to investigate, manage and present the facts ,what I call "litigation information tactics."

How would you describe your cases?

SG: We tend to get involved in cases that have some notoriety, usually in federal court and most always large-scale operations in terms of the numbers of investigative documents, tapes, videos, phone records or business records that find their way into the case. These days, I think the term is "mega trials", cases that involve hundreds of thousands, even millions of documents.

How did that kind of practice evolve?

SG: In the early 1980s, I participated in a series of cases that involved defending against tape-recorded evidence, ranging from a few minutes to a few thousand hours of taped conversations. The language we use in conversation is far more complex to analyze than is testimony given in court or in deposition. I realized early on that if I was going to continue to use the language analysis techniques that had helped win these cases, I was going to have to apply computer applications to help me cope with the scale of information I was being asked to master. Necessity was the mother of invention. In some cases we had to write our own routines to produce the kind of topic analysis and text retrieval that is so commonplace today. From electronic surveillance cases, we expanded to large-scale, document-intensive cases in which the sheer size of the thing compelled a lawyer to find unorthodox methods to gain intellectual influence over mountains of facts. In the Judge Wood assassination case, the big S&L and antitrust cases we did in the '80s, and most recently with the McVeigh case, I've been asked to design the means by which lawyers can isolate their best defenses from massive amounts of information. That process is part technical planning, part trial experience and part intuition about the best case strategy.

Would you describe your background?

SG: Before entering law school I was a documentary filmmaker, so I came to law with a working knowledge and understanding of filmmaking technology, but with no experience in computer technology. I had to learn computing as I went because I felt that if we were going to win these kinds of cases, we had to do it with litigation computing. I knew that in my practice the analysis and development of case strategies had to be driven by computing and not by pencils. So that's how it is that we came to focus so much attention over the years on how computing gives trial lawyers the kind of influence they need over the facts of a case in order to forge a winning strategy. My law office became known for being aggressive in the application of technology to these cases, and so now we consult and advise other lawyers about the information architecture that we think is a prerequisite for success in these complex cases. 

Do you use any canned applications or are your applications custom designed?

SG: I believe in the synergy of shrink-wrapped softwares. I am past the stage of picking particular products, I feel that it is largely insignificant today what products the lawyers choose. Word processors do not win cases; what does make the winning difference is how those products are woven into a process. I make my decision on which applications to use based on the software experience of co-counsel and my own trial experience. I look at the proficiency level of the people who are working with me. I also let the case tell me what software and equipment to use to make the other lawyers more effective. I believe in the power of process. We do what we need to do to make the structure of our case preparation become an overture for our trial process. We think of the ends in order to prepare to begin. The litigation computing strategy mirrors whatever is the best interpersonal strategy for successful collaboration between the team members. I believe you have to overlay the technology on the venture. Look to the people first who compose your trial team. The discovery will take a particular form, and that tells me what type of computer applications should be drawn into the mix. The information controls the applications that you will use to reach it.

You seem to believe in groupware solutions. What are your views on group software?

SG: I don't necessarily favor groupware; I just favor learning to use software as a group. Whether you use groupware or silverware has much less influence over how successful you are than does the attitude of the group. Again, my familiar refrain: it is not what product you use but how you use the product. The vitality of human interactions as we use computing sets the pattern for how you collaborate with computers; it doesn't matter what the trial teams use so long as they fuse as they use.

What do you see as the successful applications in the future?

SG: The ones that will succeed will incorporate a Web metaphor and integrate with the information on the Web. I also believe that applications that are more adventurous in the integration of audio, images, video and text will prevail. Text-based-only applications are not long for this market. What the legal computing community wants now is the synthesis of all media applications that acknowledge that voice, video and image components are all part of what I call "total communication." We are moving away from relying on advocating with words alone and the limitations of the word's narrow bandwidth. We now appreciate that human communication has many simultaneous channels. Broadband advocacy requires trial lawyers to become voice smiths and image smiths in the same way that they are, traditionally, wordsmiths.

How do you build what you call your litigation support "palette"?

SG: I start from the baseline experience level of the litigation team. How can we build on the past practices of case preparation and trial performance among the legal team? How can I arbitrate a common set of expectations for the way we'll choose to use computers to organize the case? Then I work the practical side: How can I bring this case to trial with the resources available and the constraints in place, be they time, money or lousy facts? This process puts me at odds with the approach typically taken in organizing litigation. I build the pyramid from the top down. I assess what the needs are, what must be done from an advocacy standpoint to win the case, and then decide what it will take me in time, talent and technology to get there.

How have you applied this in practice?

SG: One good example is a case from last year involving fraud in the scrap industry in which we were associated with a group of lawyers representing the company executives and they were all acquitted. I consider that a good application in practice. Seriously, about all I can say is that no two cases are alike. What I would tell you about how I applied my approach in practice in one case would be the wrong application for the next case. It really is like trying to catch the same water in a stream twice.

What was the lever that technology brought to the case?

SG: It brought lawyers to a common technological ground in defense of their clients. It was an example of how lawyers can evolve from skepticism about court technology to having confidence in it. It also taught me the importance of bringing the process of litigation support and the presentation of evidence in court into a single continuity. If you can teach yourself about your case through your litigation computing, then you can parlay your own experience of how you best learned what you learned about the facts of the case into a better knowledge of how to be persuasive with a jury.

Was there any particular application that you used in that case?

SG: I've been very impressed with a program called Ask Sam (no relation). It seems to have nearly unlimited capabilities to do complex searches in an uncomplicated way. It is very results-oriented, simple, immediate and effective. It is a program that I use regularly. We also employed it in the McVeigh case.

Tell me about your consulting practice.

SG: As to how I do it, I try to merge my experience as a lawyer into my consulting work because nothing less than wearing both hats seems to work; information tactics and trial tactics aren't separate tracks or even separate talents. They influence and respond to one another in every phase of litigation. I know it gets a little metaphysical, but over the 20 years I've done trial work, my experience has been that you can't find a trial strategy in computerized information if you don't organize it in a way that allows you to find what you didn't necessarily know was there. You have to somehow know from experience what you are likely to reap before you sow it. As to what I enjoy doing most, I love complex cases. I find them to be an intellectual challenge. The cases I've had the most fun with have been the ones that involve much information, many people, many parties and, occasionally, many countries. It doesn't hurt for the odds to be against us, either. My team enjoys that kind of work and I think we do it well.

What advice do you have for those seeking to use this type of technology?

SG: My advice for working in many media is to keep it simple. To become gilded in the technologically baroque is a waste of money. You can do so much with freeware and shareware downloads off the Web today. The instant and ubiquitous availability of human and technological resources that teach us to express ideas and become agents for change has only just begun. We have just won the revolution. Here comes the renaissance.

What role do you see for lawyers in the future?

SG: We'll see a restoration of the lawyer as the liberally educated and broadly experienced advisor. We will be shifting emphasis from producing retail legal products to establishing learned relationships, the craft of being counsel. Personally, I hope to become more learned and creative in using the arts and sciences as tools of advocacy. I think the future of law practice is bright for those who are creative, can accept change and love learning.

One last question: What do you think is the prime threat to the practice of law?

SG: The retrenchment of a corporate mentality. Changing practice models rooted in changing technology are on the verge of liberating lawyers to do more satisfying work in a more independent and self-defined way. The future is rich for our profession as long as we don't lose confidence or patience with the fruits these changes will bear.

Sam Guiberson can be reached at his offices in Houston, Texas, at guiberson@guiberson.com

The views expressed in this article are those of the authors and not necessarily those of the American Bar Association or the Law Practice Management Section. Reprinted from the Litigation Applications newsletter, Spring 1997, published by the ABA Law Practice Management Section. Copyright 1996-98, American Bar Association. All rights reserved.