e-Discovery Team

I interrupt my current series of blogs on predictive coding visualization to report on a recent experience with a Genius Bar event. I am not talking about the computer hipster type geniuses that work at the Apple Genius Bar, although there were a few of them at the CLE too. The Apple Genius Bar types can be smart, but, as we all know, they are not really geniuses, even if that is their title. True genius is rare, especially in the Legal Bar. Wikipedia says that a genius is a person who displays exceptional intellectual ability, creativity, or originality, typically to a degree that is associated with the achievement of new advances in a domain of knowledge.

All of us who attended the Georgetown Advanced e-Discovery Institute this week saw a true genius in action. He did not wear the tee-shirt uniform of the Apple genius employees. He wore a bow tie. His name is John M. Facciola. His speech at Georgetown was his last public event before he retires next week as a U.S. Magistrate Judge.

Judge Facciola’s one hour talk displayed exceptional intellectual ability, creativity and originality, just as the definition of genius requires. What else can you call a talk that features a judge channeling Socrates? An oration that uses Plato’s Apology to criticize and enlighten Twenty-First Century lawyers? …. sophists all. The intensity of John’s talk, to me at least, and I’m sure to most of the six hundred or so other lawyers in the room, also indicated a new advance in the making in the domain of knowledge of Law. Still, true genius requires that an advance in knowledge actually be achieved, not just talked about. It requires that the world itself be moved. It requires, as another genius of our day, Steve Jobs, liked to say, that a dent be made in the Universe.

Geniuses not only have intellectual ability, creativity and originality, they have it to such a degree that they are able to change the world. In the legal world, indeed any world, that is rare. Richard Braman was one such man. His Sedona Conference did make a dent in the legal universe. So did the Principles, and so did his crowning achievement, the Cooperation Proclamation. John Facciola is another such man, or may be, who is trying to take Cooperation to the next level, to expand it to platonic heights. To be honest, the jury is still out on whether his ingenious ideas and proposals will in fact be adopted by the Bar, will in fact lead to the achievement of new advances in a domain of knowledge. That is the true test of a real genius.

Thus, whether future generations will see John Facciola as a genius depends in no small part on all of us, as well as on what John Facciola does next. For unlike the genius of Jobs and Braman, Facciola may be retired as a judge, but he is still very much alive. His legacy is still in the making. For that we should be very grateful. I for one cannot wait to see what he does next and will continue to support his genius in the making.

All of the other judges at Georgetown made it clear where they stand on the ideas of virtue and justice that Facciola promotes. In the final judges panel each wore a funny bow tie in his honor, and were all introduced by panel leader Maura Grossman with Facciola as their last name. It was a very touching and funny moment, all at the same time. I am really glad I was there.

Facciola’s last speech as a judge reflected his own life, his own genius. It was a very personal talk, a deep talk, where, to use his words, he shared his own strong religious and spiritual convictions. In this context he shared his critique of the law as we currently know it, and of legal ethics. It was damning and based on long experience. It was real. Some might say harsh. But he balanced this with his inspirational vision of what the law could and should be in the future. A law where morality, not profit, is the rule. Where the Golden Rule trumps all others. A profession where lawyers are not sophists, that will say or do anything for their clients. He laments that in federal court today most of the litigants are big corporations, as only they can afford federal court.

Judge Facciola calls for a profession where lawyers are citizens who care, who try to do the right thing, the moral thing, not just the expedient or profitable thing for their clients. He calls for lawyers to cooperate. He calls for a complete rewrite of our codes of ethics to make them more humanistic, and at the same time, more spiritual, more Platonic, in the ancient philosophic sense of Truth and Goodness. This is the genius we saw shine at Georgetown.

It reminds me of some quotes from Plato’s Apology, a few excerpts of which Facciola also read during his last talk as a judge. Take a moment and remember with me the most famous closing argument of all times:

Men of Athens, I honor and love you; but I shall obey God rather than you, and while I have life and strength I shall never cease from the practice and teaching of philosophy, exhorting anyone whom I meet after my manner, and convincing him, saying: O my friend, why do you who are a citizen of the great and mighty and wise city of Athens, care so much about laying up the greatest amount of money and honor and reputation, and so little about wisdom and truth and the greatest improvement of the soul, which you never regard or heed at all? Are you not ashamed of this? And if the person with whom I am arguing says: Yes, but I do care; I do not depart or let him go at once; I interrogate and examine and cross-examine him, and if I think that he has no virtue, but only says that he has, I reproach him with undervaluing the greater, and overvaluing the less. And this I should say to everyone whom I meet, young and old, citizen and alien, but especially to the citizens, inasmuch as they are my brethren. For this is the command of God, as I would have you know; and I believe that to this day no greater good has ever happened in the state than my service to the God. For I do nothing but go about persuading you all, old and young alike, not to take thought for your persons and your properties, but first and chiefly to care about the greatest improvement of the soul. I tell you that virtue is not given by money, but that from virtue come money and every other good of man, public as well as private. This is my teaching, and if this is the doctrine which corrupts the youth, my influence is ruinous indeed. But if anyone says that this is not my teaching, he is speaking an untruth. Wherefore, O men of Athens, I say to you, do as Anytus bids or not as Anytus bids, and either acquit me or not; but whatever you do, know that I shall never alter my ways, not even if I have to die many times.

For the truth is that I have no regular disciples: but if anyone likes to come and hear me while I am pursuing my mission, whether he be young or old, he may freely come. Nor do I converse with those who pay only, and not with those who do not pay; but anyone, whether he be rich or poor, may ask and answer me and listen to my words; and whether he turns out to be a bad man or a good one, that cannot be justly laid to my charge, as I never taught him anything. And if anyone says that he has ever learned or heard anything from me in private which all the world has not heard, I should like you to know that he is speaking an untruth.

If Facciola’s positive, Socratic inspired, moral vision for the Law is realized, and I for one think it is possible, then it would be a great new advance in the field of Law. The legal universe would be dented again. It would cement Facciola’s own place as a great Twenty-First Century genius, right up there with Jobs and Braman.

I am sure that Judge Facciola will continue his educational efforts in the field of law after the judge title becomes honorific. I hope he will give more specific form to his reform proposals. I cannot hope that his educational efforts will increase, because they are already incredibly prodigious, but I can hope they will now focus on his legacy, on his particular genius for legal ethics.

Many of our judges and attorneys work hard on e-discovery education. Many have great intellectual ability. But not many are capable of displaying the kind of genius we saw from Facciola’s swan-song as a judge at Georgetown. It is his alma mater, and the students at the Institute, which we have taken to calling the audience these days, were filled with John’s friends and admirers. It brought out the best in Fatch.

There were over 600 students, or fans, or audience, whatever you want to call them, who attended the Georgetown event held at the Ritz Carlton in Tysons Corner. That is a lot of people, mostly all lawyers. To be honest, that was several hundred lawyers too many for any CLE event. Big may be better in data, but not in education.

I liked the Institute better in its early days when there were just a few dozen attendees. I was there near the beginning as a teacher, and considered my sessions to be classes. The people who paid to attend were considered students. That is the language we used then. Now that has all changed. Now I attend as a presenter, and the people who pay to attend are called an audience. It seems like a transition that Socrates would condemn.

The big crowd and entertainment aspects of this years Georgetown Institute reminded me of a big event in Canada last month where I was honored to make the keynote on the first day. I talked about Technology and the Future of the Law, and, as usual, had my razzle dazzle Keynote slides. (I don’t use PowerPoint.) On the second day they had a second keynote. I was surprised to learn he was a professional motivational speaker. Not even a lawyer. My honor faded quickly. The keynote was all salesman rah rah, with no mention of the law at all. That’s not right in my book. It also made me wonder why I was really asked to give the first day’s keynote. Oh well, it was otherwise a great event. But I am now starting to tone down my slides. If I could tone down my enthusiasm, I would too, but I’ve tried, and that’s not possible.

The task of putting on a show for a large, 600 plus audience was too great a challenge for almost all of the presenters at Georgetown. Do not get me wrong, all of the attorneys tagged to present knew their stuff, but being an expert, and an educator, are very different things. Being an expert and an entertainer are almost night and day. Very, very few experts have the skills of Facciola to do that, who, by the way used no slides at all. (I cannot, however, help but think how it might have been improved by the projection of a large holographic image of Socrates.)

Most of the sessions I attended at Georgetown were like any other CLE, fairly boring. We presenters (at least we were not called performers) were all told to engage our audience, to get them talking, but that almost never happened. The shows were no doubt educational, at least to those who had not seen them before. But entertaining? Even slightly amusing? No, not really. Oh, a few of the panels had their moments, and some were very interesting at times, even to me. A couple even made me laugh a few times. But only one was pure genius. The solo performance of Judge John Facciola.

I found especially compelling his role-playing as Socrates, along with his quotes of Plato, where he read from the Greek original of his high school book from long ago. Judge Facciola presented with a light and witty hand both his dark condemnations of our profession’s failings, and his hope for a different, more virtuous future. His sense of humor of the human predicament made it all work. Humor is a quality possessed of most geniuses, and near geniuses. John radiates with it, and makes you smile, even if you cannot hear or understand all of his words. And even if many of his words anger you. I have no doubt some who heard this talk did not like his bluntness, nor his call for spirituality and a complete rewrite with non-lawyer participation of our professional code of ethics. Well, they did not like Socrates either. It comes with the turf of know-nothing truth-tellers. That is what happens when you speak truth to power.

I thought of trying to share the contents of John’s Apology by consulting my notes and memory. But that could never do it justice. I am no Plato. And really, truth be told, I know Nothing. You have to see the full video of John’s talk for yourself. And you can. Yes! Unlike Socrates’ last talk, Georgetown filmed John’s talk. Not only that, they filmed the whole CLE event. I suspect Georgetown will profit handsomely from all of this. John, of course, was paid nothing, and he would have it no other way.

Dear Georgetown advisors, and Dean Center, good citizens and friends all, please make a special exception regarding payment for the video of John Facciola’s talk. In the spirit of Socrates and your mission as educators, I respectfully request that you publish it online, in full, free of charge. Not the whole event, mind you, but John’s talk, all of his talk. Everyone should see this, not just the bubble people, not just Georgetown graduates and insiders. Let anyone, whether they be rich or poor, listen to these words. Put it on YouTube. Circulate it as widely as you can. Let me know and I will help you to get the word out. Give it away. No charge. You know that is what Socrates would demand.

In the meantime for all of my dear readers not lucky enough to have been there, here is a short fair use video that I made of Judge Facciola’s concluding words. Here he makes a humorous reference to the final passage he had previously quoted in full from Plato’s Apology. This is at the very end where Socrates asks his friends to punish his sons, the way he has tormented them, should they fall from the way of virtue. Having a son myself, I will finish this blog with the full quote from Plato and make the same request of you all. And I do not mean the humorous reference to long hair in Facciola’s concluding joke, I mean the real Socratic reference to  virtue over money and a puffed up sense of self-importance. A reference that we should all take to heart, not just Adam.

Do to my sons as I have done to you.

Still I have a favour to ask of them. When my sons are grown up, I would ask you, O my friends, to punish them; and I would have you trouble them, as I have troubled you, if they seem to care about riches, or anything, more than about virtue; or if they pretend to be something when they are really nothing,—then reprove them, as I have reproved you, for not caring about that for which they ought to care, and thinking that they are something when they are really nothing. And if you do this, both I and my sons will have received justice at your hands.

The hour of departure has arrived, and we go our ways—I to die, and you to live. Which is better God only knows.

This entry was posted on Sunday, November 23rd, 2014 at 10:31 am and is filed under Lawyers Duties, Technology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.