Blawgletter®

"Predictive Coding" in E-Discovery

Blawgletter gets calls each work day from people who want to sell something. It happens to you, too. When you pick up the phone, you hear dead air for a second or two before a person comes on the line. The "agent" often asks if he can speak with "[your name here]".

The tell-tale lag means that the caller forms part of what Blawgletter knows as "outbound telemarketing" -- and that the agent used a "predictive dialer" to reach our line. Our source for all facts whose accuracy doesn't matter -- Wikipedia -- tells us:

Predictive dialers use statistical algorithms to minimize the time that agents spend waiting between conversations, while minimizing the occurrence of someone answering when no agent is available.

The dialer raises the time when an agent speaks with a callee from about 40 minutes per hour to around 57.

What, you demand to know, does that have to do with e-discovery. Just this: A growing number of fancy-pants e-discovery vendors claim that their software programs vastly enhance the efficiency of looking for stuff -- in this case, hot documents instead of hot prospects for buying Veg-a-Matics, credit repair services, and hair-weaving devices.

But does the hype match the True Facts? Because if it does a lot of lawyers will spend a lot less time searching through terabytes of electronic documents to find things relevant to lawsuits. And clients will spend a lot less money paying for all that doc-review time.

Call us slightly more on the side of the hypers. Slightly.

Using algorithms to locate hot docs makes a ton of sense for that first cut through the Great Mass of E-matter that you image from your client's gargantuan server. The process does better than having lawyers do "keyword" searches, not least because keyword searches can go on and on and on. The big gain from using the software should come from having more faith that the program will catch the right documents. If you do it over and over again, though, you haven't done much more than find a new way to waste time.

And yet you just might do that. Per the ABA Journal:

Essentially, the software works by delivering results based on a barrage of keyword inputs, which are tweaked by a seasoned attorney who then continually refeeds the best resulting documents back into the system as examples until the software “learns” what the attorney is really looking for.

So you still need someone who can teach the software what types of docs to sort into the human-review pile. But one person instead of dozens. Which should improve consistency but makes the value of the whole effort depend on how hard and well the one person does the job.

Who should play the role? We say someone who has Tried a Case. Because we don't care how smart a lawyer you have culling through the docs that make the first cut. If that person doesn't have a good idea of what you can do with the hot docs in front of a judge or jury, you'll likely get a big pile of docs that will never see an exhibit sticker.

So, we like the tool. Sort of. But like any tool it will save time only if you use it with planning and discipline.

How to Value Settlements (By Richard Posner)

Seventh Circuit Judge Richard Posner likes to riff on things that tickle his fancy. He does it a lot in his legal writing, of which he does a great deal. Just this week he wrote about how to tell if you should take an offer to settle:

Determining the reasonableness of a settlement requires comparing the amount of the settlement to the net expected gain of seeking a litigated judgment. The "expected gain" is the gain if the judgment is favorable, discounted (that is, multiplied) by the probability of a favorable judgment. The qualification "net" signals the need to subtract the cost of pressing ahead to judgment in order to estimate the value of litigating to judgment rather than of settling. Suppose the setttlement is $1 million, and a litigated judgment favorable to the plaintiff would be $4 million but the probability of obtaining the judgment would have been only 10 percent and the cost of obtaining it (the litigation cost) $100,000. Then the net expected gain from litigating to judgment would have been only $300,000 ($4 million x .10 = $400,000; $400,000 - $100,000 = $300,000) -- much lower than the $1 million settlement. And so the settlement would be reasonable.

In re Fort Wayne Telsat, Inc., No. 11-2112, slip op. at 7-8 (7th Cir. Nov. 23, 2011) (affirming bankruptcy judge's okay of trustee's settling of claim by debtor).

Why Does the NYT Hate Law Schools

Today the Paper of Record printed a long item on How Law Schools Cheat Their Students.

Not really. The thing tells how poor a job lawyer-mills do at teaching their toils how to "lawyer". It says the schools worry so much about trade school stigma that they commit the unbusinesslike sins of teaching people how to think instead of how to work and hiring profs who churn out goofy papers rather than teach the little law tykes how to keyboard a motion to dismiss.

Call Blawgletter a skeptic. We think the legal academy does fine work in teaching law students the skill they need most -- how to think with pristine good sense when others can't, won't, or shouldn't even try. A knack for using logic to head off trouble or master it keeps on giving year after year, client after client, case after case. And you just don't get as much of a pure ration of thinking without feeling outside the law classroom.

As for training in stuff that calls for know-how more than wit or brains -- how to write briefs, draft contracts, respond to greenmail, answer questions from the Board of Sanitation, blog about Law -- we'd suggest two things, both of which law schools do more now anyhow. One: urge students to work in the Real World for a bit before buying a Black's Law Dictionary. Two: offer more chances to do real lawyer things for credit, maybe even require the doing of such things.

What about law firms, you say? Doesn't the NYT piece highlight their fading power to bill clients for teaching new law grads the nuts and bolts of law practice?

Yes, it does. And there lies the source of the title for this post. The question of whether clients will pay to train baby lawyers isses-may the oint-pay. Of course they'll pay for it. They have to. Because if they didn't the hits to law firms' profits would cause the law firm model to fall apart.

No, the question comes down to How Big a Share each cog in the machine has to bear of the training costs. The NYT suggests law schools should pay a bigger part of the cost. But the truth comes down to the fact that, in a time of more lawyers and firms chasing a stagnant supply of work that doesn't demand world-class lawyer work, the client trumps all. The newbies, the schools, and the firms must each take a hit. Econ 101, baby!

Quote of the Day: Douglas E. Abrams

Today Blawgletter can't resist giving credit for more than one quote to Douglas E. Abrams, who teaches law at the University of Missouri, the show-me state.

Professor Abrams's piece in the July issue of the Texas Bar Journal -- What Great Writers Can Teach Lawyers and Judges -- highlights such a Great Many pithy comments, on the hard but wondrous art of writing, that we feel sure you'd enjoy more than one or two. Here goes:

• "Brevity is the soul of wit." William Shakespeare, speaking through Polonius, the prolix dunderhead who also says "very like a whale" in Hamlet and dies of a stabbing by Hamlet himself due to Polonius's unwise hiding in curtains during the golden age of Danish sword open-carry laws.
• "The covers of this book are too far apart." Ambrose Bierce, in a book review that starts and ends with this sentence (and thus honors, briefly, Polonius).
• "This report, by its very length, defends itself against the risk of being read." Winston Churchill, who here shows the power of using short words.
• "The writer who breeds/ more words than he needs/ is making a chore/ for the reader who reads./ That's why my belief is/ the briefer the brief is,/ the greater the sigh/ of the reader's relief is." Theodor Geisel.

Amen!

We'll get a second dose of advice from Dr. Abrams next month. We almost can't wait.

Mock Trial -- Dare You NOT Do It?

Blawgletter's firm handles much of our work on a contingent fee basis. That means we share risk with our clients -- and earn no fee if we don't help our clients get a good result.

What counts as a good result will vary from case to case. It often involves a money inflow, sometimes not having to pay. In some instances, a particular outcome -- winning a motion to dismiss, to compel arbitration, for class certification, for preliminary injunction, and so on -- defines success.

Why do we mention the risk-sharing? Mainly because our firm has a rule that, before trying any case in which we have a contingent fee on the line, we must MOCK TRY it. That should tell you how much we believe in the usefulness of the mock trial.

But what good, you may ask, does the mock trial do? Do the results predict the real outcome? How could they? Cramming weeks of opening statements and witnesses and argument and PowerPoints and blow-ups and expert opinions and juror notebooks and sidebars and so forth into TWO OR THREE HOURS -- how could that possibly tell you anything worthwhile?

Okay. Listen up. We don't want to have to repeat this.

Mock trying the case forces you -- the lawyer and the client -- to prepare. It makes you think about the other side's strengths -- especially if you compel your lead trial counsel to play the other side's lead (in her or his own style, of course). And it fast-forwards your client to the main event, which he or she may have an unrealistic Hollywood-y image of.

Does the outcome predict actual results? Heck no -- by which we mean in the particulars. Mock juries often differ widely in their damages awards. That goes double for punitive damages. But the direction of their verdict -- you win, or the other side does, big time -- has a fair degree of reliability.

Third, the process reveals the One Fact. The One Fact that the lawyers know Has Importance. But that nobody realizes -- until the mock trial -- the Whole Case Turns On.

So mock try your cases. Spend your own money doing it, if you work on a contingent fee. Clients should insist on jury research. You'll like the results. 

Passive Voice Saves Embryonic Stem Cell Research

Blawgletter has a thing about the passive voice. We don't like it, no sir. Not at all. You might say it is hated by us.

[See, e.g., "They Will Be Killed by Us", "The Voice That Dares Not Call Its Name", "Passive Voice Kills Another Lawsuit", "Contingent Fee Hinges on What 'Recovered" Means", "Fifth Circuit Weighs Passive Voice, Holds Insurers Must Pay for Stanford Defense","The Hated Past Participle".]

Now and then, something will gratify our smugness regarding p.v. In April, the D.C. Circuit did just that.

The case involved an attempt by researchers who study human adult stem cells to stop federal research involving human embryonic stem cells. The district court, in the person of the Honorable Royce Lamberth, issued a preliminary injunction against federal funding of the research on the ground that "an appropriations rider" -- the Dickey-Wicker Amendment -- "bars federal funding for research in which a human embryo is destroyed." Sherley v. Sebelius, No. 10-5287, slip op. at 2 (D.C. Cir. Apr. 29, 2011).

The key part of the Dickey-Wicker Amendment excludes from eligibility for federal money any "research in which a human embryo or embryos are [sic] destroyed". Pub. L. No. 111-117, § 509(a)(2), 123 Stat. 3034, 3280-81. Note the "are destroyed" bit. Passive voice, baby!

The plaintiffs claimed that D-WA reaches any work on stem cells that came from embryos. That the federal researchers played no role in destroying the embryos and simply received the stem cells after someone else removed them from embryos did not, in their view, matter. The relevant "research" extended back in time to destruction of the embryos by others, they urged.

A 2-1 majority of the court of appeals disagreed, holding "that the text [of D-WA] is ambiguous" and that therefore the National Institute of Health's reasonable reading of the law bound the court. Sherley, slip op. at 12. The ambiguity, the panel ruled, made the plaintiffs unlikely to prevail on the merits. 

The dissenting judge invoked "Rube Goldberg" and alleged "linguistic jujitsu" in opining that the statute clearly bars federal funding for research that doesn't itself involve extra-governmental destruction of embryos. Id. at 22.

Who got it right?

You'll excuse us for taking the side of those who see ambiguity. As we like to point out, the use of passive voice allows the writer to avoid linking a particular actor to action, creating uncertainty about the actor's identity. In the case of "research" in which "human embryos are destroyed", you can't tell who "destroyed" the embryos -- the federal researchers or other people.

What will happen now? Barring an en banc rehearing or the granting of review by the Supreme Court, the case will return to Judge Lamberth for rulings on the merits. The majority opinion doesn't appear to allow the district court much room, if any, to re-interpret D-WA.

We suppose the plaintiffs could try to show that NIH induced others to derive embryonic stem cells for the purpose of supplying them to NIH for federal research and that NIH therefore knowingly evaded D-WA. But short of that -- and we have no reason to think such evidence exists -- Judge Lamberth will likely have little choice but to rule in favor of the government.

Grading Questions

On the Radio

Do you listen to radio programs whose hosts invite you to call in with questions for her or her guests?

Have you heard the host/guest respond to a caller's query with something along the lines of "that's a good question"? Or, perhaps, with one of these:

• Very good question.
• Excellent question.
• Terrific question.
• Superb question.
• Awesome question.
• That question renews my faith in the good sense of the American people.
• Questions like that make life worth living. God, I love you.

Doesn't that make you cringe?

Queries from the Bench

If you have a law license and, in the normal course of your work, find yourself in a court room, you'll from time to time get a question from the bench. It may come from a single trial court judge or from a member of a panel. But, no matter what, you'll feel the tug of the same egomania that prompted those radio show hosts/guests to patronize the folks who inquired by grading the judicial question.

Don't give in! You'll only hurt your case!!

Avoid Sucking Up

You see, a great many judges can spot a suck-up. They may like a bit of flattery; they may even enjoy a lot of it. But sucking up gets you only so far. And, really, it doesn't persuade anybody. It may even anger the other judges on a panel -- not to mention the trial judge who doesn't suffer fools gladly.

That doesn't mean you can't comment on a question. If the judge asks something that gets to the heart of the fight, don't say "great question". Say he just asked a "key question", an "important question", a "decisive question". Then give your best answer.

Grading questions marks you as presumptuous and kind of a jerk. Talk with judges instead about the importance of their questions to the case. That will help them make better decisions. It will also save you from losing the essential thing you must keep at all costs -- your credibility.

Webinar on Class Certification in Antitrust Cases: A Brave New World

A couple weeks ago, if you found yourself in downtown Philadelphia, you could've stopped in the U.S. courthouse there and seen Blawgletter argue a Rule 23(f) appeal to an impressive panel of the Third Circuit Court of Appeals.  The appeal challenges an order certifying a class of Philadelphia-area cable subscribers.  Behrend v. Comcast Corp., No. 10-2865 (3d Cir.).  The judges asked lots of questions.  We like that.

Anyway, the appeal and the trial court proceedings that preceded it gave us a fair grasp of the State of the Law on class certification, particularly in antitrust Cases.  And this coming Tuesday we'll have the chance to share what we've learned in a Practising Law Institute webinar.  For info on the program and how to sign up, go here.

We wrote a paper for the webinar.  Email us or post a comment if you'd like a copy.

The Third Circuit panel directed the parties to provide a transcript of the argument.  We'll send you a copy of that, too, if you request it via an email or comment.

A Lawyer Loses Her Kudos, Lawsuit to Regain Them

State bars like to reward lawyers who do great work, and they should.  Although they bestow praise erratically, they do so in lots of ways.  Methods include public embrace of those whose wondrous skills, in the opinion of the kudos-givers, set them apart from run of the mill license-holders.

A case involving a Florida lawyer raised the question of whether losing the acclaim of the Sunshine State's bar gave the lawyer a basis for suing it.  The Eleventh Circuit held that the bar did nothing wrong by choosing not to renew the lawyer's status as a "specialist" in marital and family law.  Zisser v. The Florida Bar, No. 10-11974 (11th Cir. Jan. 19, 2011).  The panel pointed out that the lack of praise didn't bar the lawyer from the practice of law.  It added that "failure to convey a badge of distinction is not stigmatizing."  Id. slip op. at 17.

Put Me In, Coach

Blawgletter got back last night from a trip, to Philadelphia and New York, that put us in touch with long-time lawyer friends we don't see often enough.  We enjoyed our visits. 

But one of the friends told us about something that disturbed us, even seemed bizarre.  Big firms, the friend said, don't value trial lawyers very much.  Because they don't value trials.

My friend said, among other things, that many colleagues don't get cases ready for trial.  They don't know how.  They've never tried a case!  My friend added that many don't want associates to get trial experience for fear that it would get others' hopes up!  And that some partners who call themselves litigators have never taken a deposition!

Yikes!

The surprising news stayed on our mind this morning.  But then John Fogerty's Centerfield came on.  It cheered us right up.

The song tells of a baseball enthusiast.  The chorus says:

Put me in, coach.

I'm ready to play, today.

Put me in, coach.

I'm ready to play, today.

Look at me, I can be, center field.

We've found over the years that the associates who become partners have the same attitude (towards trial work) that Mr. Fogerty sings about (towards baseball).  Some of them even say the same thing -- put me in, coach.  That never fails to impress us.  Even if we have doubts, the request -- and the desire behind it -- overcomes them.  We can't remember saying no.

So, all you new and newish lawyers out there, don't shrink from asking for a chance to do something that goes beyond your experience.  Tell the partner you can take that key deposition, cross-examine a trial witness, argue the jury charge.  Explain why the partner should believe you'll do a great job -- and bring the partner and client glory.  Say put me in, coach.  I'm ready.

As the Great One said, you miss 100 percent of the shots you don't take.