e-Discovery Team Training

Welcome to Module 4-E.

How To Practice Law Like Abraham Lincoln – Be an e-Discovery Lawyer!

Did you know Abraham Lincoln was quite the techie lawyer in his day? He used to give lectures on the latest technologies. If he were alive today, I’m sure he would be an e-discovery lawyer.

The cover story of the ABA Journal in February 2009 was How To Practice Law Like Lincoln.Abraham Lincoln was born on February 12, 1809, making 2009 the Lincoln Bicentennial. He was probably our greatest President and serves as the perfect exemplar of a U.S. lawyer. It is true, as the ABA Journal article points out, that all lawyers of today would benefit from emulating aspects of his Nineteenth Century legal practice. He was honest, diligent, a deep thinker, and ethical. This class shows how Lincoln was a high-tech lawyer of his day. If he were alive today he would certainly be a master of our favorite subject.

The Journal points out how much in common we lawyers of today have with lawyers of the 1800s. Indeed that is true, but that is not necessarily a virtue considering the vast changes in society; changes that the profession and most law schools have been unable to keep up with. In fact, most law schools today seem to be stuck in the 1800s and are preparing students to practice law in the days of scriveners and paper documents. They teach trial practice, but not negotiation and litigation. They barely mention “discovery” and are clueless about the retrieval and use of electronically stored information. Even though 98% of the writings today are computer generated and reside in computer systems, not filing cabinets, most law schools today ignore this fundamental fact. Instead, they pretend like it is still Lincoln’s day and all of the writings are paper. They also pretend like you prepare for trial just like Nineteenth Century lawyers, with virtually no discovery. Their trial practice teams rehearse trials with no more than twenty pages of paper exhibits. They also pretend like most disputes are resolved by jury trials. In fact, only 2% of cases in the federal system ever go to trial. Almost all cases today are won or lost by discovery, not juries.

Fortunately, some schools are starting to open their eyes and introduce discovery and negotiation into their curriculum: Georgetown, the University of Florida, Cumberland, and several others come to mind. More power to the few schools that are starting to catch up with society. But this is not going to be another article on the relevancy failure of most law schools. Instead, I want to focus on the indisputable fact that, if Lincoln were alive today, he would be an e-Discovery lawyer!

Lincoln Was a Technophile

Lincoln was as obsessed with the latest inventions and advances in technology as any techno-geek e-discovery lawyer alive today. The latest things in Lincoln’s day were mechanical devices of all kinds, typically steam powered, and the early electromagnetic devices, then primarily the telegraph. Indeed, the first electronic transmission from a flying machine, a balloon, was a telegraph sent from inventor Thaddeus Lowe to President Lincoln on June 16, 1861. Unlike Lincoln’s generals, he quickly realized the military potential of flying machines and created an Aeronautics Corps for the Army, appointing Professor Lowe as its chief. See Bruce, Robert V., Abraham Lincoln and the Tools of War. Below is a copy of a handwritten note by Lincoln introducing Lowe to General Scott.

At the height of his legal career, Lincoln’s biggest clients were the Googles of his day, namely the railroad companies with their incredible new locomotives. These newly rich, super-technology corporations dreamed of uniting the new world with a cross-country grid of high speed transportation. Little noticed today is one of Lincoln’s proudest achievements as President, the enactment of legislation that funded these dreams, the Pacific Railway Act of 1862. The intercontinental railroad did unite the new world, much like the Internet and airlines today are uniting the whole world. A lawyer as obsessed with telegraphs and connectivity as Lincoln was would surely have been an early adopter of the Internet and an enthusiast of electronic discovery. See: Abraham Lincoln: A Technology Leader of His Time (U.S. News & World Report, 2/11/09).

Abraham Lincoln loved technology and loved to think and talk about the big picture of technology, of how it is used to advance the dreams of Man. In fact, Lincoln gave several public lectures on technology, having nothing to do with law or politics. The first such lecture known today was delivered on April 6, 1858, before the Young Men’s Association in Bloomington, Illinois, and was entitled “Lecture on Discoveries and Inventions.” In this lecture, he traced the progress of mankind through its inventions, starting with Adam and Eve and the invention of the fig leaf for clothing. In Lincoln’s next and last lecture series first delivered on February 11, 1859, known as “Second Lecture on Discoveries and Inventions,” Lincoln used fewer biblical references, but concentrated instead on communication. For you history buffs, I have found and posted on this blog a complete copy of Lincoln’s Second Lecture, which, in my opinion, is much better than the first. Here are a few excerpts from this little known lecture:

The great difference between Young America and Old Fogy, is the result of Discoveries, Inventions, and Improvements. These, in turn, are the result of observation, reflection and experiment.

Writing – the art of communicating thoughts to the mind, through the eye – is the great invention of the world. Great in the astonishing range of analysis and combination which necessarily underlies the most crude and general conception of it, great, very great in enabling us to converse with the dead, the absent, and the unborn, at all distances of time and of space; and great, not only in its direct benefits, but greatest help, to all other inventions.

I have already intimated my opinion that in the world’s history, certain inventions and discoveries occurred, of peculiar value, on account of their great efficiency in facilitating all other inventions and discoveries. Of these were the arts of writing and of printing – the discovery of America, and the introduction of Patent-laws.

Can there be any doubt that the lawyer who wrote these words would instantly “get” the significance of the total transformation of writing, “the great invention of the world,” from tangible paper form, to intangible, digital form? Can there be any doubt that a lawyer like this would understand the importance of the Internet, the invention that unites the world in a web of inter-connective writing, where each person may be a printer and instantly disseminate their ideas “at all distances of time and of space?”

Abraham Lincoln did not just have a passing interest in new technologies. He was obsessed with it, like most good e-discovery lawyers are today. In the worst days of the Civil War, the one thing that could still bring Lincoln joy was his talks with the one true scientist then residing in Washington, D.C., the first director of the Smithsonian Institution, Dr. Joseph Henry, a specialist in light and electricity. Despite the fact that Henry’s political views were anti-emancipation and virtually pro-secession, Lincoln would sneak over to the Smithsonian every chance he could get to talk to Dr. Henry. Lincoln told the journalist, Charles Carleton Coffin:

My visits to the Smithsonian, to Dr. Henry, and his able lieutenant, Professor Baird, are the chief recreations of my life…These men are missionaries to excite scientific research and promote scientific knowledge. The country has no more faithful servants, though it may have to wait another century to appreciate the value of their labors.

Bruce, Lincoln and the Tools of War, p. 219.

Lincoln was no mere poser about technology and inventions. He walked his talk and railed against the Old Fogies who opposed technology. Lincoln was known to be willing to meet with every crackpot inventor who came to Washington during the war and claimed to have a new invention that could save the Union. Lincoln would talk to most of them and quickly separate the wheat from the chaff. As mentioned, he recognized the potential importance of aircraft to the military and forced the army to fund Professor Lowe’s wild eyed dreams of aerial reconnaissance. He also recognized another inventor and insisted, over much opposition, that the army adopt his new invention: Dr. Richard Gatling. His improved version of the machine gun began to be used by the army in 1864, and before that, the Gattling guns that Lincoln funded are credited with defending the New York Times from an invasion by “anti-draft, anti-negro mobs” that roamed New York City in mid-July 1863. Bruce, Lincoln and the Tools of War, p. 142.

As final proof that Lincoln was one of the preeminent technology lawyers of his day, and if he were alive today, surely would be again, I offer the little known fact that Abraham Lincoln is the only President in United States history to have been issued a patent. He patented an invention for “Buoying Vessels Over Shoals.” It is U.S. Patent Number 6,469, issued on May 22, 1849. I could only find the patent on the USPTO web, where it is not celebrated and is hard to read. So as my small contribution to Lincoln memorabilia in the bicentennial year of 2009, I offer the complete copy below of Abraham Lincoln’s three page patent. You should be able to click on the images with your browser to enlarge and download.

The invention consisted of a set of bellows attached to the hull of a ship just below the water line. After reaching a shallow place, the bellows were to be filled with air that buoyed the vessel higher, making it float higher and off the river shoals. The patent application was accompanied with a wooden model depicting the invention. Lincoln whittled the model with his own hands. It is on display at the Smithsonian and is shown below.

Lincoln Loved Truth More Than Winning

Like all good e-discovery lawyers, Lincoln cared more about the truth, than he did about winning a particular case. In fact, if he thought the truth was against his client, then he would always try to cajole a settlement. If that failed, and the client wanted to pursue his dubious version of the facts and hope to win at trial anyway, Abraham Lincoln was one of the poorest advocates around. Conversely, if Lincoln thought truth was on his client’s side, there was no better lawyer. He had prodigious powers of persuasion though folksy storytelling, but could not bring himself to use these powers if it meant straying from the truth.

According to Mark E. Steiner, in his book An Honest Calling: The Law Practice of Abraham Lincoln (Northern Illinois University Press, 2006):

Mr. Lincoln’s strongest ally was truth. Without it, he was virtually defenseless, according to fellow lawyers in Illinois. Lawyer Samuel C. Parks wrote that “at the bar when he thought he was wrong he was the weakest lawyer I ever saw.” James C. Conkling recalled: “No man was stronger than he when on the right side, and no man weaker when on the opposite. A knowledge of this fact gave him additional strength before the court or a jury, when he chose to insist that he was right.

He indulged in no rhetorical flourishes or mere sentimental ideas, but could illustrate a point by one of his inimitable stories, so as to carry conviction to the most common intellect.”

Fellow lawyers testified that Mr. Lincoln needed to believe in a case to be effective. Judge David Davis recalled “The framework of his mental and moral being was honesty and a wrong was poorly defended by him. The ability which some eminent lawyers possess of explaining away the bad points of a cause by ingenious sophistry, was denied him. In order to bring into full activity his great powers, it was necessary that he should be convinced, of the right and justice of the matter which he advocated. When so convinced. Whether the cause was great or small, he was usually successful.

Mr. Lincoln was the fairest and most accommodating of practitioners, granting all favors which he could do consistently with his duty to his client, and rarely availing himself of any unwary oversight of his adversary. (citations omitted)

This is exactly the kind of cooperative, truth-seeking attitude that works well today for a discovery lawyer. The job of an attorney who specializes in discovery law is to find the truth, be it good, bad, or indifferent. The discovery lawyer finds as much of the truth as the parties can afford or the case warrants. The days of discovering “the whole truth and nothing but the truth” went out with the information explosion. Today, with gigabytes and even terabytes of information held even by small companies, it is impossible to retrieve with perfect recall (the whole truth) or perfect precision (nothing but the truth). The best you can do is find an acceptable picture of the truth (reasonable recall) without at the same time collecting too much irrelevant information (reasonable precision) driving up the cost of review.

A good discovery lawyer finds the responsive evidence in as efficient and economic a manner as possible. The discovery lawyer then puts the cards on the table for the trial lawyers to see. It is then up to the trial lawyers to make the most of the hand they were dealt. Lawyers can make reasonable interpretations and extensions to existing law, and often do, but they cannot change the facts. You take what you are given. Then you argue the meaning of these facts, you apply these facts to the law, and then the judge or jury decides who wins. If the facts do not look good, you settle the case as best you can. You do not hide or twist the facts. This is exactly the creed by which Lincoln practiced law and shows why, in today’s world, he would naturally gravitate to e-discovery.

Lincoln Was a Cooperator

A supposedly new creed of e-discovery is the doctrine of cooperation as articulated by the Sedona Conference Cooperation Proclamation. It is based on the realization that only by cooperation and transparency can e-discovery be performed in an economic and efficient manner. This new attitude is also mandated by the rules and case law as Judge Grimm has persuasively shown in Mancia v. Mayflower Textile Services Co.

As both Judge Grimm and The Sedona Conference® have taken pains to point out, cooperation is not a new doctrine at all. Cooperation is an old doctrine; it is the original doctrine that has never been abrogated. The fact that some lawyers and professors consider it naive to think that lawyers will stop playing “hardball” and “hide the ball,” and instead embrace cooperation to “find and produce the ball,” shows just how far astray we have gone. The almighty pursuit of the dollar and law-as-a-business may explain what has happened, but do not excuse it. As the ABA Journal article points out, we must follow the fundamental ethical values of honesty and integrity that governed the practice of Lincoln.

There was no code of ethics or even bar associations in Lincoln’s day, but every lawyer knew they had a duty to cooperate and duty of candor to the court. The lawyers would meet from time to time to remind themselves of these duties. It was at one such meeting that Abraham Lincoln spoke these now well-known words:

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opertunity [sic] of being a good man. There will still be business enough.

Lincoln, Abraham, Notes for a Law Lecture (July, 1850).

These duties are now embodied in many ethical codes. Litigation has never been about winning at all costs, any more than discovery has been about hiding, rather than disclosing the truth. Lincoln knew it and practiced it. That is why he would have no trouble at all with this supposedly new and radical trend of cooperative discovery. He would readily sign the Cooperation Proclamation, thus again demonstrating that, if Lincoln were alive today, he would be a natural for e-discovery law.

Lincoln Was Diligent

Lincoln’s primary advice to other lawyers was diligence. That was his personal philosophy of excellence as a lawyer, a technologist, and finally as President of the United States. Again, this is how Lincoln began his Notes for a Law Lecture:

The leading rule for the lawyer, as for the man, of every calling, is diligence.

The duty of diligence is also at the core of e-discovery. In fact, the failure of attorneys to exercise due diligence in e-discovery explains most of the mistakes and disaster cases in this field. Many have recognized this, including Judge Shira Scheindlin, who, in Zubulake v. UBS, 229 F.R.D. 422 (S.D.N.Y. 2004), articulated what is essentially a duty of diligence. Judge Scheindlin held that outside counsel are required to make certain that all potentially relevant electronic data are identified and placed “on hold,” and went on to specify that:

To do this, counsel must become fully familiar with her client’s document retention policies, as well as the client’s data retention architecture. This will invariably involve speaking with information technology personnel, who can explain system-wide backup procedures and the actual (as opposed to theoretical) implementation of the firm’s recycling policy. It will also involve communicating with the “key players” in the litigation, in order to understand how they stored information.

I call this the Zubulake duty and note that it is universally followed by all districts courts that have considered the issue. This duty scares most litigators today for a variety of reasons. First of all, it is hard. It requires hard work and training to obtain the skills to discharge this duty. Secondly, it takes a tremendous amount of time and effort to discharge this duty, to assume the responsibility for a client’s imposition of a hold on complex computer systems, and to try and speak with many employees on highly technical IT and information storage issues.

To a diligent technophile like Lincoln, it would have been a joy and you know he would have been good at it. But to the majority of technophobic lawyers today, it is sheer drudgery. They use every excuse to avoid it, chief among them being the client’s reluctance to pay for such efforts. Still, case law requires it. Litigants and their attorneys can be sanctioned for their failure to discharge this duty and properly supervise e-discovery. This is based upon the practical reality that “discovery is run largely by attorneys, and the court and the judicial process depend upon honesty and fair dealing among attorneys.” In re September 11th Liability Insurance Coverage Cases, 2007 WL 1739666 (S.D.N.Y. June 18, 2007).

If Abraham Lincoln Were Alive Today
He Would Be a Great e-Discovery Lawyer

Abraham Lincoln had the perfect temperament and mind for an e-discovery lawyer. He loved technology, new inventions, and understood the importance of writing and communications. More importantly, he was a tinkerer himself. If he were alive today, you know he would have multiple computers and would probably be working on a secret patent in his spare time. Abraham was also cooperative by nature and focused on the discovery of the truth as the best way towards justice. That would also serve him well in this field.

Finally, Lincoln was a generalist. He loved and practiced in all areas of law. So too is a discovery lawyer. We do not care what the case is about, nor the particular field of law. Our job is to uncover the relevant facts and do it as economically and efficiently as possible. We need only learn enough about the case to determine relevance, the pole-star of search and retrieval. We need not be experts in the substantive field of law involved in the case, only in the law of discovery. It can be a civil case or criminal, the problems and issues of “the needle in the haystack” remain the same.

Yes, if Abe were alive today, he would be a great e-discovery lawyer. In the meantime, we can all try to improve by emulating his moral qualities and fresh, inquisitive mind. As Abe himself was fond of saying: down with the Old Fogies; it is young America’s destiny to embrace change and lead the world into the future.

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SUPPLEMENTAL READING: Speaking of patents, do you know how to search for patents and trademarks? It is a good skill for all lawyers to have. Go to the USPTO website and try out their public search features. It’s free. Try running searches for electronic discovery and see what you find. Also try a search on predictive coding.

EXERCISE: Ralph is a Lincoln buff as you might have guessed. Can you come up with any other Lincoln quotes or stories that might somehow apply to e-discovery?

Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!

Copyright Ralph Losey 2015