### 9 Responses to Mathematical Formula for Justice Proves the Importance of ESI in Civil Litigation

1. Jim says:

I generally agree with your analysis, but write briefly to suggest a critical additional ingredient: HP, or human perception). And even though I agree with you that on a purely objective scale, ESI is of paramount importance for all the reasons you state, the presence of HP distorts that reality.

In fact, HP affects your equation in several respects. One obvious way is that it colors testimony. Witnesses (W) may deliberately state things they know to be untrue, or omit things they know to be true. But even the most well-intentioned witness can never come close to remembering and then translating into words the whole truth.

HP also affects the ultimate variable of Justice (or, I would submit, Truth) on the other side of the equation: the determiner of Truth is also human, and therefore filters what he or she receive through experience and limitations. Exactly how it does this depends on the nature of the proceeding, and who is to determine the Truth.

If the context is a mediation, for example, the Truth determiner (TD) is the client, and he or she will filter everything he receives from both sides through his own experiences and biases.

If the proceeding is a trial, then the Truth determiner is the jury (or judge). What they hear and remember of the testimony similarly depends on how their life experiences have moulded their perception.

Turning away from Testimony and toward ESI and other tangible evidence, we find that HP still plays a role, but that it is different. Since this type of evidence is “objective,” and can be directly received by the truth-finder, one might think there would be virtually no HP effect on that delivery. However, the HP factor is still present because this often-technically sophisticated evidence must be explained to the truth-finder by—that’s right—an attorney (A) who may very well lack the ability and understanding himself to do the job. As you have pointed out, this will often result in the attorney either ignoring the evidence completely, or not being able to clearly explain it to the truth-finder.

And, of course, the truth-finder is often even less equipped to understand the ESI, so it may choose to ignore it, or misapply it.

So, I would suggest that your equation be modified as follows:

J (HPTD) = [(T)(HPW) + (P +ESI)(HPA)]/L

I hope Mr Russell would approve.

2. […] Ralph Losey says “I am reluctant to share my unusual analytic approach to law, but am encouraged to do so by the words of the great British philosopher and writer, Bertrand Russell”.   But in a cool article he says that justice can be represented by an abstract logic formula.  For full article click here. […]

3. It is true that perception plays a vital role in justice discovery and justice delivery.

Much of what Jim says is already a known factor. It affects the way one walks, eats, talks etc. We perceive and are guided by our perception in whatever we do. While I write this, I perceive that Jim is complicating things a little.

It reminds me of a fictitious criminal case of a group of cave excavators get trapped inside a limestone cave. None to rescue, run out of food, water and any other means of survival. Finally they kill one among them so that others could survive. Others do survive when they are tried for “murder” under the law: “whoever causes the death of another with the intentionof causing the other’s death is punishable for murder”.

After hearing arguments, there are four fictitious judges who hold:

Judge A: They are outside the jurisdiction of this court. The law of the land is not applicable to them because, they are separated from the rest of the world”

Judge B: Liable for punishment for murder

Judge C: They were governed by the contract they entered into just before one of them was killed by the others, in view of the circumstances they were in. (Actually they entered into a contract for choosing the person to be killed by the roll of the dice!)

Judge D: Natural law takes over. Survival of the fittest…

All are perceptions. There were testimonies, evidence, records, attorneys and judges. They had their perception. There was one law and many interpreations of it. We get biased, based on our social values, bringing up and so on.

To my mind the formula J=(T+PO+P+ESI)/L is forceful enough to bring out the importance of ESI and by extension, e-discovery. Mixing up HP into the equation is complicating a simple formula.

Justice cannot be abstracted by a mathematical formula. But it is like teaching something unknown with the help of something that is known.

Balaji

Judge D:

• Jim says:

Thanks for your comments, Balaji. I will freely concede that the role and limitations of human perception on testimonial evidence are well recognized. But it is nonetheless important to remember how HP affects not only testimony, but other aspects of the equation, on both sides of the equal sign.

Even less obvious, though, is how perspective and limited understanding on both sides of the equation operate to render ostensibly objective evidence, particularly ESI, much less useful, causing it to be given far less weight than it deserves. It is surely this limitation (along, of course, with explosive costs) that leads to the bilateral “Gone With the Wind” phenomenon in litigation: Both sides agree, “I can’t think about ESI right now. If I do, I’ll go crazy. I’ll think about that tomorrow.”

4. Jim,

Thank you for your comments.

I cannot agree any less on all the statements you have made:

1.HP affects almost about everything in justice delivery system.
2.ESI gets far lesser weightage than it deserves
3.Unpreparedness of today’s attorneys to meet the challenges as it evloves, particullary “I’ll go crazy types”.

But it is also true that the J and L on both sides of the equation are also driven by and derivatives of perceptions. To be a little more precise, a common perception. Justice is a common perception of the victory of right over the wrong. Right and wrong are differently percieved, understood and defined in different communities,geographies and countries. Law itself is an embodiment of “common perception” in as much as when it is passed by both the houses of parliament and gets presidential assent – it reflects the voice of the nation in general.

Today in India, homosexuality is punishable under Section 377 IPC. There is a move to scrap this. This is triggered by public perception. There are countries which have already approved of this. I am not debating what is right and what is wrong. Perceptions are all pervasive in human life.

If that is true, then all I wanted to emphasise was the formula as mentioned by Ralph is good enough adequte for understanding the concept of Justice, testimony, physical objects, paper, esi and the Law.

Your statement, as I understdood is something like this:

“Justice, as determined by the Human Perception of the Truth Determiner is equal to the sum of Testimony based on witnesses’ Human Perception + Attorney’s Human Perception of (Paper+ESI)upon Law”

If HP is all pervasive, then such an explanation sounded to me a little superficial. That’s all.

Still, your argument and the formula that you suggested is unquestionably sound and logical. There is no denying this.

regards
balaji

5. […] that the legal system does work and justice can be done. Not all of the time to be sure. The justice formula often fails. I also know this from long and hard experience. Still, we must never give up, never […]

6. […] Mathematical Formula for Justice Proves the Importance of ESI in … […]

7. […] See eg., Green v. McClendon, 2009 WL 2496275 (S.D.N.Y. Aug. 13, 2009) (discussed before in Mathematical Formula for Justice Proves the Importance of ESI in Civil Litigation). But this decision goes a step further and reaches behind the curtain to impose sanctions against […]

8. […] is the premise behind a blog I wrote on the relative importance of e-discovery to justice. Mathematical Formula for Justice Proves the Importance of ESI in Civil Litigation (e-Discovery Team, 8/30/09). It featured the ideas and quotes of Bertrand Russell and an Order by […]