By David Hobbie, Litigation Knowledge Manager, Goodwin Procter LLP
I recently read David Weinberg’s Too Big To Know (2012), which investigates the changing meaning of knowledge in our age of ever-increasing connectivity and collaboration. (The full title is “Too Big to Know: Rethinking Knowledge Now That the Facts Aren’t the Facts, Experts Are Everywhere, and the Smartest Person in the Room Is the Room.”) In the opening to Chapter 2, “Bottomless Knowledge,” Weinberg digs into the pre-internet days of obtaining answers and, at the same time, points out an unavoidable feature of information gathering and use that I had not thought of in the same way before — the need to weigh the amount of certainty to which we need to know facts.
Weinberg takes us back to 1983 and asks us to suppose that we want to know the population of Pittsburgh. To find out, we would not conduct our own census; instead, we would likely go to a library and find a (paper) almanac with a population list. We would comfortably rely on that figure for nearly any purpose, particularly if the almanac relied on US census data. Weinberg notes that our need for some degree of validity continues in the internet age, even though our sources and techniques, not to mention the speed of retrieval, are radically different. Nowadays, we would likely start with Wikipedia, and follow links in the Pittsburgh article to online US Census data if we wanted greater certainty. His main point is that the internet has changed even this fundamental aspect of gathering and assessing information — we no longer need to rely on the one source before us; we can follow or find the direct source on our own. This changes the nature of fact-finding and knowledge.
With this simple example, Weinberg raises the idea of factual uncertainty and verification, an idea well worth following into the context of our litigation system and dealing with our legal organizations’ internal information. Simply put, we need to establish facts and collect knowledge with varied degrees of certainty. All kinds of standards for certainty exist, for instance, that needed to establish mathematical facts, scientific facts, proof beyond a reasonable doubt, or simply that something is more likely than not to be true.
The US Litigation System and Verification
The US court system reflects our varying need for certainty for different types of decisions. We perceive our system of statutes, regulations, and case law as an essentially unvarying set of rules. The facts of a given case, combined with the case’s procedural posture, control which standard should be applied and the outcome (e.g., when a judge rules on a motion or a jury gives a verdict). Many cases are won or lost as a result of a court’s determination of precisely which legal standard applies to a given set of facts.
By way of example, under the civil procedure rules, the standards for surviving dismissal, or to put in Weinbergian terms, the degree of certainty with which a plaintiff needs to establish facts, increases as a civil case proceeds. The following discussion is a gross oversimplification, does not relate to any particular US jurisdiction, and should not be taken as my (or my firm’s) position on the legal standard of proof with respect to any particular case.
|Civil Litigation Stage
|Motion to Dismiss
||Facts plaintiff pleads (states) are assumed true
|Motion for Summary Judgment
||Facts plaintiff can put at issue or contradict by affidavit, document, or discovery statement can lead to denial of summary judgment
||Plaintiff must prove facts with admissible evidence that establishes that a fact is, more likely than not, true
Motion To Dismiss
A defendant can attempt to avoid liability very early on in a case, before even obligated to respond to a plaintiff’s complaint, through a Motion to Dismiss (called a demurrer in some jurisdictions). In that procedure, a plaintiff need do no more than “plead” the facts, meaning state the facts as the plaintiff reasonably believes (and sometimes merely hopes) they are. Courts generally must accept all facts pled in the Complaint as true (with a few exceptions, such as facts in the guise of legal determinations and facts pled that are contradicted by unquestionable documents associated with the Complaint). To avoid liability and obtain dismissal the Complaint’s dismissal, the defendant essentially need only establish that even if everything the plaintiff claims to be factually true were true, as a matter of law the plaintiff has no valid claim and is not entitled to recover anything from the defendant. The court needs no factual certainty at this stage.
Later in the case, perhaps after losing a Motion to Dismiss, a defendant may challenge a Complaint through Summary Judgment, which usually comes after gathering facts through the discovery process. Summary Judgment can lead to dismissal of all or part of the plaintiff’s case in the same way a Motion to Dismiss can. At this stage, the defendant may contradict the plaintiff’s alleged facts bysubmitting alternative facts by affidavit, documentary evidence, or the plaintiff’s own responses to discovery, such as interrogatories. If the plaintiff cannot rebut the defendant’s proposed facts through its own affidavits or documents, the court may take them as true for purposes of the Summary Judgment motion. If, however, two incompatible accounts of a conversation, document, or other fact exist (if it appears as “he-said she-said”), the court will not choose whom to believe and will not grant reasonable inferences in the defendant’s favor; the facts are determined to be in controversy and Summary Judgment is not granted (assuming that the facts in dispute legally must be established for the defendant to avoid liability). At this stage, the court requires uncontroverted facts to make a ruling. However, the plaintiff need not prevail in a credibility fight; the plaintiff merely needs to have a credibility contest.
By the time they arrive at trial, the parties have incurred great expense and intensively investigated the facts. While the plaintiff generally has the slight disadvantage of needing to prove the facts by a preponderance of the evidence (meaning just barely more likely than not),where facts are controverted or uncertain the decision-maker (either a judge or a jury) chooses whom to believe and essentially determines the facts. Even here, the system tightly controls how likely a fact or reliable an opinion must be to be introduced. This is a key aspect of our system of evidence, particularly expert evidence. The plaintiff can simply plead facts, or submit an affidavit or document making it possible that a version of the facts is true; but, it needs to introduce acceptable factual evidence that the decisionmaker believes more than the defendant’s version to prevail.
As the stages of litigation progress, in parallel with fact development over the course of the case, the plaintiff must prove the facts underlying the legal claims with more and more certainty and receives the benefit of the doubt as to certainty less and less.
Knowledge Management: Uncertainty and Verification Within the Enterprise
Working within the extensive constraints of this system inclines lawyers to very low tolerance for factual uncertainty and risk compared with other businesspeople (see, “I’ve Got You Under My (Thin) Skin: Personality and Motivation in Lawyers”). So, three of Weinberg’s lessons should be considered in creating and developing legal knowledge management resources.
One fairly obvious point is that our systems should be designed to clearly identify the underlying sources and provide other indicia of reliability, or at least indicate why the information is thought to be reliable. For instance, a system providing a firm’s judicial appearance information should identify the attorneys directly involved, along with information or links to the matter. Better still, the system could provide a way to quickly contact the attorneys. Lawyers are used to linking or citing authority; in principle, the whole common law system requires citation to previous authorities who have considered an issue, forging new ground only where none exist.
With work product (samples and forms), no single sample or form will consititute the “correct fact.” In that sense, factual reliability may be less important than proper context. Is the asset purchase agreement a buyer-friendly exemplar relating to a $100m+ Florida real estate? Or, is it a California biotech startup with two promising products in the pipeline? Is the Summary Judgment motion from a trademark dispute in the United States District Court for the District of Massachusetts or a contract dispute in the New York Supreme Court? Accurately portraying the context increases the work product’s utility.
Forms and samples should also readily identify the date to help attorneys quickly assess how likely they are to be accurate on the law. The “expiration date” on work product varies significantly depending on the area; for instance, contract law changes very slowly, while the law concerning noncompetition agreements and data security and privacy changes more quickly.
Generally, I am not a big fan of disclaimers (“Don’t use this work product unless you are a real expert or have talked to partner Jane Smith!!”). I find them both ineffective and condescending to the intelligence of our work force (in that we do not hire stupid law school graduates; if any made it through somehow, they should be fired). On the other hand, providing the context or origin of a resource or sample set can help the attorney determine the resource’s reliability (for instance, “This information is drawn from our matters database, which contains matters with time billed after 2005 and is updated monthly”).
Weinberg points to the dramatic change in the nature of knowledge resulting from the move away from the printed word to interconnected information. Legal knowledge management systems also should make use of interlinking. Are you creating a custom set of SharePoint lists and pages to manage unique information about a particular group of products liability cases; why not tie that system into your existing matter portal, document management, and communication systems? Are you setting up a work history report that shows the hours particular people have worked over time; why not tie into your matters database and experience systems?
Internal information can be linked through not only hyperlinks and related information, but also search. Enterprise search can pull together information about firm experience, work product, and attorney expertise linked only by a client/matter number and display it in one portal. A document management system search similarly can pull in information from the finance system to provide richer context for work product search result grids.
Another lesson from the internet age is the need for our internal systems to allow for extensive attributed contributions by people inside the firm. Lawyers’ need for certainty and risk avoidance have led them to disparage enterprise social networks and other systems where anyone in the firm can contribute knowledge; except in instances where lawyers feel secure in their expertise or are sharing “neutral” information, those same characteristics have tended to dampen the degree of internal sharing. But, there is no going back to an era of less connectivity, and the aggregate wisdom of a firm can be most efficiently and effectively shared through systems where many attorneys contribute and make their opinions known. Imagine the net effect of multiple endorsements of a given form or litigation checklist by a range of senior legal practitioners.
In other professional organizations, these kinds of systems increase the ability to find content and experts. They also lead to increased retention, as staff engagement from being able to contribute increases. We need to other attorneys’ ratings and knowledge of the experience and seniority of the contributing attorney lead to proper weighing of the certainty and relevance of contributions. Working with the internet or sophisticated intranets requires a different, but not inconsistent set of lenses with which to view the certainty of information.
We will never be less connected than we are now. That is normally viewed in the context of people-to-people connection, for instance with respect to mobile and remote access. It certainly is also true now with respect to accessible, verifiable information—a person in a rural area in 2014 with a handheld smartphone has access to more and better information in many ways than government leaders did fifty years ago. And, it is also true with respect to internal information and information outside the firm. Showing why we think something is true or useful within the firm can help us improve our legal organizations’ capability to leverage its collective wisdom.