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One of the biggest, yet untapped advantages the digital age has brought to the legal world is access to technology and electronic evidence during the trial preparation stage of a legal matter. In the past, lawyers had no choice but to pore over endless stacks of paper to find a case’s key documents. Today’s post-production case work is not much different, swapping stacks of paper for a mountain of electronic documents.
For most lawyers dealing with e-discovery, document review and compliance is the focus. Yet post-production, a large dataset remains, which needs to be tapped repeatedly for information that will help inform case strategy and support counsel’s positions in court. Once the burden of discovery has been fulfilled, the work of understanding the information produced—often hundreds of thousands or millions of documents—can be equally cumbersome. Without an efficient way to identify and analyze the subset of truly relevant information, attorneys can become buried in post-production work.
While analytics technology is fairly widespread in the main part of the e-discovery reference model (EDRM), lawyers often are less comfortable using it for trial prep. But using these same techniques to quickly identify key facts to assist with preparing for depositions or simply to support court presentations, can make a world of difference in the cost and outcome of a matter.
When combined with the insight and experience of attorneys and expert advisors during post-production casework, analytics can offer insight into a case’s strengths and weaknesses, as well as potential strategies opposing counsel may pursue. The ability to find a particular data point in a production set quickly is something all attorneys would appreciate, but few know how to do it on the fly. Below are three instances where advanced analytics can bring serious benefits to the trial prep phase of litigation.
Deposition prep: Without thorough preparation, depositions can go sideways fast. A lot of strategy is involved in knowing what to ask, how to answer questions about documents and the key points of contention that apply to each deponent. At this stage in the game, counsel is working to out-maneuver the opposing side to shape the direction of the case in their favor.
Leveraging analytics alongside people who understand how to use the technology for depositions enables counsel to take all of the produced material surrounding each individual and narrow it down to the facts. This includes understanding key communications involving the individual, who the person communicated with and other activities that may be relevant. This level of detail—and the ability to access the information in real time as new topics or themes become more important than others—ensures counsel is prepared for anything the opposing side might try.
This approach is invaluable in highly complex matters that require help from an outside provider. For example, one client engagement involved production sets of 80 million documents from around the globe, and it wasn’t clear who needed to be deposed. With a skilled team applying analytics tools, even in these extreme circumstances, counsel can identify likely deponents, prep them and fully understand the relevant data in the short time between when data is produced and when meetings begin.