The information explosion is about to trigger a justice explosion. It will happen as soon as law catches up with technology. It will happen as soon as law learns to harvest the vast new fields of digital evidence that technology has created. We will then enjoy a much higher level of justice than we do now. Our judges and juries will reach just decisions more often because they will know more of the truth, more of the time. All justice is dependent upon truth, upon objective facts. The technology revolution has created far, far more information than ever before. As the law learns to retrieve this information there will be far, far more justice than ever before.
In law we find justice by the light of truth. We find truth by evidence of facts, the objective facts of past and present events and mental states. We find this truth through writings and through the testimony of witnesses, and sometimes through physical evidence, such as guns or fingerprints. Testimony is the oral account of witnesses as to the facts – what they saw, heard, and did. Although testimony is based upon solemn oaths to tell the truth, all lawyers and judges know that it is inherently subjective and never completely reliable. Testimony is built on the frailties of memory and observation. The great advances in technology have done little, if anything, to improve the reliability of our memory or our testimony. Our memory of facts remain as vague and subjective as as ever. (Someday the polygraph may reveal intentional lies, but we are not there yet, and it will likely never reveal unintentional errors or subjective coloring.)
The law has learned that testimony only leads to a reasonably accurate account of objective facts when supplemented with writings (and physical objects, when applicable) made at the time of the events in question. Writings, traditionally called documents in the law, are understood in the broadest sense to include not only paper (the mere tip of the iceberg), but all electronic information, including videos and computer records. Writings are the guardians of truth, the refreshers of memory that keep people honest. They are the best, most accurate repository of objective facts, and have been for centuries.
This should give us great hope for the future of justice because the extent and complexity of writings is now exploding exponentially. As soon as law learns to search and retrieve this new explosion of electronic evidence, cases will be decided on more and better documentary evidence than ever before. Testimony will become more reliable because it will be checked and constrained by more and more contemporaneous writings. A new dawn of justice will become possible as intentional and unintentional lies are exposed. We will be able to decide cases based on more of the truth than ever before. The flood of new information, new writings, will generate a new age of justice that far exceeds anything we have seen to date.
It is a good time to be a lawyer. If you can ride and understand the tidal wave of new technologies and new writings, you can advance the cause of justice. You can find the writings needed for judges and juries to make their decisions based upon accurate evidence. The truth is out there in vastly greater quantities than ever before. Yes, it is intangible, just electronic pulses representing zeros and ones. Yes, it is sometimes hidden like a needle in a haystack. But it can be found. It will be found by the lawyers of today and tomorrow as we learn e-discovery.
We can all tap into the information age to fill courts with truth. The days of justice based on paper and candlepower are over. Lawyers should instead sing the body electric.
Hear this change of tune my fellow legal educators. Join with me in a more positive approach. For every story of doom, gloom, and sanctions, tell two of victory, justice, and joy. Spread the word of how ESI was used to win the day. Let us not base our teachings on fear of failure, but on love of justice. Love is a far more powerful motivator. Love what you do. Do what you love. As Steve Jobs said: The only way to do great work is to love what you do. As Joseph Campbell said: Follow your bliss.
We need great work now from many in the law, great work inspired by love, love of justice, love of truth, freedom, and liberty. When we realize what is at stake, when we can see clearly the herald of coming good, the golden age of justice on the horizon, it is easy to love what we do. Discover this inner truth and your love of e-discovery will follow, your great works will change the world.
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Well said, Ralph.
Our courts are struggling to keep up with the power of technology not only with eDiscovery but with the administration of justice as well. IMO the Florida state courts are doing a reasonably good job of trying to harness information without some of the adverse side effects. Case in point #1: Keeping court records “open” while maintaining the right amount of privacy for litigants. The Florida Supreme Court is carefully negotiating this minefield. See, e.g., http://www.floridasupremecourt.org/decisions/2011/sc08-2443.pdf.
Case in point #2: Jurors want to use internet research to seek the truth and judges and lawyers want decisions based solely on what they hear in court. Florida now has comprehensive standard instructions. See http://www.floridasupremecourt.org/decisions/2010/sc10-51.pdf. Whether that is enough to keep jurors in bounds remains to be seen. Judge Scheindlin’s idea of having jurors sign a pledge is a remarkable outside the box methodology. See http://www.nytimes.com/2011/09/19/nyregion/us-judge-considers-making-jurors-vow-not-to-use-web.html.
With all this roiling of the waters as we drag courts into the information age, I join Ralph in remaining optimistic about the overwhelming value of technology in seeking the truth, which is always the touchstone of justice.
Ambition and love are the wings to great deeds.
Johann W. von Goethe