eDiscovery - So easy a Caveman can do it, right?



I'm a Caveman, that's the way I think.



Many may remember the late Phil Hartman playing the lawyer caveman on SNL back in the 80's. The running gag was that Keyrock, a unthawed caveman who went to law school, would speak in a highly articulate and smoothly self-assured manner to a jury or an audience about how things in the modern world supposedly "frighten and confuse" him. He would then list several things that confounded him about modern life or the natural world, such as: "When I see a solar eclipse, like the one I went to last year in Hawaii, I think 'Oh no! Is the moon eating the sun?' I don't know. Because I'm a caveman -- that's the way I think." This pronouncement would seem ironic, coming from someone who had, for example, just ended a brisk cell phone conversation, or indeed attended law school. Keyrock would always finish a disquisition, however, by asserting in a burst of righteousness that nevertheless "There is one thing I DO know..." -- namely, that his client is either innocent, or that he is entitled to several million dollars or more in both compensatory and punitive damages for an injury. The jury or counsel is invariably swayed by Keyrock's argument, except every time the Judge announces the verdict in his favor, Keyrock is distracted by some other event like watching a Knicks game on his portable TV ("I'm sorry, Your Honor, I was distracted by the tiny people in this magic box"), or by a cell phone call, and the verdict has to be repeated.

This gag was particularly funny to me because I’ve had the great pleasure to see and assist many, many lawyers in action in the courtroom. There were and still are lawyers that use similar tactics with both judges and juries. And, it worked! I remember one very old lawyer in particular back in the 80’s that came off as an old country lawyer that did not know much. He was easily overwhelmed by those “Big City Lawyers” who pushed complex issue after complex issue forward. Each time he would grab the issue, dumb it down for the jury and then twist the opposition's complex explanation to suit his client’s position. I also saw many lawyers try similar tactics, only to fail miserably. They just came off as, well, stupid.

eDiscovery can be a complex undertaking rife with considerable risk, and enormous expense. It does not have to be complex, nor expensive if you have the right plan. A plan that is tried and true, defensible and easy to understand. I see too many attorneys these days that either try to be the caveman when it comes to eDiscovery, pass the task off to an associate with no experience, or just go it alone rather than bringing someone in that not only understands the process, but has been through every conceivable situation. Don’t be the caveman. eDiscovery is not so easy a caveman can do it. At least not without a standardized process and the right technology and help.