Fact Crashing™ is the acceleration of the consideration of ACTION data (Ambient, Contextual, Transactional, IoT, Operational, Navigational) for the benefit of resolving disputes.
Let us continue.
Principle 3: Frame Case Issues as Data-Centric Inquiries
If you want to take advantage of our current abundance of ACTION data, it helps to recast your case issues into objective, measurable analyses.
In the prior installment, I wrote about the relationship between ACTION data and VERBAL data. Namely that to analyze VERBAL data, we leverage, extract, or create ACTION data. When we frame case issues as data-centric inquiries, we identify which ACTION data we should leverage, extract, or create.
If you want to test whether or not “reasonable care” was provided in an elder care home, then you might consider, instead:
- What was the ratio of on-shift staff to residents?
- How often are rooms visited?
- How often do patients turnover?
- What is the response time for health emergencies?
- What is the response time for station calls?
- What is the consumption of aspirin per patient per year?
Based on these data points and others, the trier of facts can decide the ultimate truth: was “reasonable care” provided? More importantly, these are facts that can be measured. You don’t read emails and policies to learn this information. You draw this information from the systems that exist in the facility. By recasting your case issues as data-centric inquiries, you open the door to leveraging ACTION data.
Like the Key Performance Indicators we use to manage business goals, those inquiries need to be SMART goals:
Do you want to know if a non-exempt employee is working off the clock? Then rephrase that question with location, time, duration, and thresholds. The revised inquiry: “Did the employee (a) conduct job-related activities (b) away from the office (c) outside of normal shift (d) for more than 10-minutes (e) without otherwise demonstrating flexibility?” can be answered objectively with ACTION data.
This is not just a method to challenge your adversaries.
This can be done for both claims and defenses. It can be used to elicit your own case narrative. You will also find that this accelerates an aspect of trial preparation that often is postponed too long. In numerous cases iDiscovery Solutions has been involved in, over more than two decades, we’ve seen counsel jump into the necessary steps of discovery before thoroughly analyzing all of the claims, defenses, and prongs of those claims and defenses.
To be fair, one does not always know all the claims and defenses when a case begins. But we should encourage parties to address these issues sooner rather than later.
Arguably, we will get there anyway, in the long run and if we can address them earlier, then we can apply them to the efficient benefit of the entire case.
What if your issues are not factual?
Sir William Blackstone, the English jurist who wrote in the 1760s, underscored the centrality of fact issues in an arresting passage: “[E]xperience will abundantly show,” he said, “that above a hundred of our lawsuits arise from disputed facts, for one where the law is doubted of.”
Sometimes litigation arises not because parties disagree on the facts, but because they disagree on the law. You may wonder how, in such circumstances, ACTION data can be helpful.
The short answer is — sometimes it is not. But there are also times when ACTION data can reveal whether or not a party has behaved consistently with their own stated position in court. For example, if a party accused of theft of Intellectual Property takes the position that the information was not a trade secret in the first place, that is their position. But if they then treat the acquired information with a heightened level of controls and protections, those actions can reveal a behavioral position inconsistent with their declared position.
iDiscovery Solutions is a strategic consulting, technology, and expert services firm – providing customized eDiscovery solutions from digital forensics to expert testimony for law firms and corporations across the United States and Europe.