Use Data to Work Toward Early Resolution

This is the eleventh and final installment in a blog series on Fact Crashing™, the acceleration of the consideration of ACTION data (Ambient, Contextual, Transactional, IoT, Operational, Navigational) to the benefit of resolving disputes.

There are 9 Principles of Fact Crashing™. Earlier blogs covered: 

Principle 1: Data is Evidence and is Discoverable

Principle 2: Data Should be Addressed Early

Principle 2: Deep Dive

Principle 3: Frame Case Issues as Data-Centric Inquiries

Principle 4: Identify, Qualify and Prioritize Data Sources

Principle 5: Data is Subjective to Preservation and Protection Obligations

Principle 6: Data Reliability Starts With Proper Collection

Principle 7: Data Understanding is Required for Proper Analysis

Principle 8: Use Data to Shape Other Discovery

Now, let’s take a look at the ninth and final principle.

Even when Structured Data cannot solve the entire issue, sometimes it can still solve a meaningful portion, and lead to more efficient resolution.

Most Disputes are 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 wrote, “that above a hundred of our lawsuits arise from disputed facts, for one where the law is doubted of.” [1], [2]

Therefore, it stands to reason, if you can resolve the factual disputes in a case, then you can fully resolve, or dramatically narrow, the entire dispute.

Since Structured Data is typically more objective, move abundant, more granular, and less ambiguous than Unstructured Data. Hence it lends itself to resolving factual questions. At a minimum, it can sooner inform the controlling party of potential liabilities and damage exposures. All of this is conducive to early case resolution.

We have seen cases that were poised for entrenched litigation involving dozens of custodians and millions of emails, instead resolve in a matter of months through the judicial application of structured data. We have seen cases where classes have been established, or dismissed, solely based on Structured Data. We have seen cases where Defendants have made settlement offers based on Structured Data, and cases where Plaintiffs have walked away due to Structured Data.

While some cases do have genuine issues of law, and quasi-issues of law, even those can be partially or fully resolved when factual disputes or ambiguities are resolved. The opportunities for early resolution can occur before suit is filed, immediately after suit is filed, through the deposition process, or within a motion for summary judgment.

Summary Judgment

In the U.S., summary judgment is a de facto expectation in many cases. The history of the Summary Judgment goes back to the earliest legal history of the U.S., and before that, England.

In 1855, the English Parliament promulgated the Keating’s Act providing a summary judgement procedure for the collection of bills of exchange.[3] Since that time, England, and then the American Colonies, then the U.S., have all enacted procedures for various forms of Summary Judgment. The most dramatic of these was the then-new Federal Rules of Civil Procedure, where Law Professor Edson Sunderland demonstrated his staunch support for Summary Judgement.

Summary Judgment is where undisputed facts can win the day. Structured data can provide undisputed facts better than structured data.

Depositions

We have seen litigators successfully leverage Structured Data in the deposition process to impeach a witness or to subtly (or not-so-subtly) demonstrate to opposing counsel, via deposition questions and exhibits, the strength or weakness of a given position.

Conclusion

In 1992, Dupont evolved their revolutionary litigation model. Much of it focused on early case assessment. Dupont proved that the advantage of early case assessment is better case resolution. Today, Structured Data is finally delivering that ability on a much more economical basis.

Whether through early case assessment, summary judgment, depositions, or through mediation, arbitration, settlement discussions, hearings, or pleadings, there are many windows of opportunity to resolve the factual disputes in a given case.

[3] Bauman, John A. (1956) “The Evolution of the Summary Judgment Procedure: An Essay Commemorating the Centennial Anniversary of Keating,” Indiana Law Journal: Vol. 31 : Iss. 3 , Article 1.

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