Learning Case Facts From Documents
I’ve observed four basic phases to document review: learning the basic facts, learning the details, answering advanced questions, and then discovering that the vast trove of knowledge they studied has become almost entirely useless when the case is over.
In an earlier post, I shared some tips I learned from my experience looking for evidence by reviewing documents in discovery. But now I’d like to discuss my experience digesting tens of thousands of documents and using their contents to help my clients.
Why should you continue to read this post about the four stages of document review?
You are a client and want to know why your lawyer spends time reviewing documents throughout a litigation
You are concerned that this post may not be adapted as an easier-to-consume film
The only thing more exciting that reading documents is reading blog posts about reading documents
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Phase One: Learning the Basic Facts
At the start of a case, a lawyer often knows very few of the important facts of the case. She may only know what the client told her, or what a supervising attorney’s summary of what the client told her. This is often a great place to start, since a client probably knows what the main conflict between the parties is and can generally identify the relevant parties. But a client may not have the full story, nor may she have a perfect recollection.
At first, an initial review of the documents may be disorienting since it is often like reading a random page of a book. The lawyer reviewing them is usually unsure of the context in which the documents she reviews were drafted or sent. But over time, the reviewer becomes familiar with who the people identified in documents are, who does a lot of talking, who is just copied on documents, and where any individual document falls in the timeline of events.
The most helpful documents in this phase are emails and contracts, which usually provide a narrative that an outsider can read and understand. The relevant information in other documents, like spreadsheets and PowerPoint presentations, may not be apparent yet.
After this phase, a lawyer is usually able to identify questions whose answers may require more documents or interviews, and often can speak with some (but not total) confidence about specific discrete issues of the case.
Phase Two: Re-Reviewing Documents to Learn Details
Once a lawyer has reviewed all of the documents, she may re-review them with the knowledge she gained from reviewing other documents. In this phase, e-mails and documents that did not seem to provide information before may seem very different. For example, once the reviewer learns how rarely the president of the company writes about a subject, and email from her may seem more important than it seemed at first.
When re-reviewing the documents, the lawyer may be able to more precisely determine whether they support various legal theories. For example, once he reviewer knows when a contract was signed, she can appreciate whether a statement made before that date could be the predicate for a fraud claim. In another example, once the reviewer learns the general course of conduct between a buyer and a seller, she can better assess whether a particular transaction deviated from that course.
At this phase, a lawyer has a pretty good sense of the facts of the case. This is because most commercial transactions leave a detailed trail of emails and documents that provide a real-time account of negotiations and statements. So if three people email five times each day about an agreement, a reviewer has fifteen data points about what each them understood at various times.
Also at this phase, the lawyer may begin to learn more about the case than the client. This is because the client is limited by her own recollection, which may have faded years after the dispute’s underlying events. And, as the client shares the facts, it may be difficult to describe her changing understanding of the facts over time since many people cannot perfectly recall when they learned various facts. Lastly, a client may not be aware of the relevance of certain facts, or may not emphasize facts that are unhelpful for the case because she believes they are not important. By contrast, document review provides a fuller picture.
Phase Three: Answering Advanced Questions
As litigation proceeds, the parties may advance theories or make arguments that raise questions that a lawyer had not previously considered during document review. Opposing counsel may claim that an important witness had not yet worked at the company when an incident took place or that an unrelated incident caused the plaintiff’s injuries.
Lawyers can use search terms in a database of documents, or consult reference documents like spreadsheets, to answer these questions.
At this stage, the lawyers become very familiar with details about the parties’ business. As they approach trial, lawyers often know where a company’s employees live, what the employees’ salaries are, what projects they were working on, what their writing style is like, and how long they worked at the company. This level of knowledge often surprises witness at depositions, and even clients, because the connection between those facts and the dispute is often not immediately apparent to someone who is unfamiliar with all of the arguments raised by opposing counsel.
Phase Four: Forgetting Everything
After a case is over, a lawyer is left with a ton of knowledge about the parties to the dispute. Unfortunately, those facts are rarely relevant to future disputes, especially since they usually concern events that took place years in the past. Nor are these facts interesting to anyone, which may make the lawyer feel silly for having found them very interesting during the course of the lawsuit. In my experience, lawyers begin to forget these facts quickly, much like they often forget a lot of the laws they crammed into their memories while studying for the bar exam.