Abraham Lincoln was born on February 12, 1809. He was probably our greatest President. Putting aside the tears honest Abe must now be shedding over his political party, it is good to remember Lincoln as an exemplar of a U.S. lawyer. All lawyers would benefit from emulating aspects of his Nineteenth Century legal practice and Twenty First Century thoughts on technology. He was honest, diligent, a deep thinker and ethical. Very ethical. He did not need to be lectured on Cooperation and Rule 1. He also did not need to be told to embrace technology, not hide from it. In fact, he was a prominent Tech-Lawyer of his day, well known for his speaking abilities on the subject. Near the end of his legal career Abe was busy pushing technology and his vision of the future. Sound familiar dear readers? It should. Most of you are like that.
Lincoln Was a Technophile
Lincoln was as obsessed with the latest inventions and advances in technology as any techno-geek e-discovery lawyer alive today. The latest things in Lincoln’s day were mechanical devices of all kinds, typically steam-powered, and the early electromagnetic devices, then primarily the telegraph. Indeed, the first electronic transmission from a flying machine, a balloon, was a telegraph sent from inventor Thaddeus Lowe to President Lincoln on June 16, 1861. Unlike Lincoln’s generals, he quickly realized the military potential of flying machines and created an Aeronautics Corps for the Army, appointing Professor Lowe as its chief. See Bruce, Robert V., Abraham Lincoln and the Tools of War. Below is a copy of a handwritten note by Lincoln introducing Lowe to General Scott.
At the height of his legal career, Lincoln’s biggest clients were the Googles of his day, namely the railroad companies with their incredible new locomotives. These newly rich, super-technology corporations dreamed of uniting the new world with a cross-country grid of high speed transportation. Little noticed today is one of Lincoln’s proudest achievements as President, the enactment of legislation that funded these dreams, the Pacific Railway Act of 1862. The intercontinental railroad did unite the new world, much like the Internet and airlines today are uniting the whole world. A lawyer as obsessed with telegraphs and connectivity as Lincoln was would surely have been an early adopter of the Internet and an enthusiast of electronic discovery. See: Abraham Lincoln: A Technology Leader of His Time (U.S. News & World Report, 2/11/09).
Abraham Lincoln loved technology and loved to think and talk about the big picture of technology, of how it is used to advance the dreams of Man. In fact, Lincoln gave several public lectures on technology, having nothing to do with law or politics. The first such lecture known today was delivered on April 6, 1858, before the Young Men’s Association in Bloomington, Illinois, and was entitled “Lecture on Discoveries and Inventions.” In this lecture, he traced the progress of mankind through its inventions, starting with Adam and Eve and the invention of the fig leaf for clothing. I imagine that if he were giving this speech today (and I’m willing to try to replicate it should I be so invited) he would end with AI and blockchain.
In Lincoln’s next and last lecture series first delivered on February 11, 1859, known as “Second Lecture on Discoveries and Inventions,” Lincoln used fewer biblical references, but concentrated instead on communication. For history buffs, see the complete copy of Lincoln’s Second Lecture, which, in my opinion, is much better than the first. Here are a few excerpts from this little known lecture:
The great difference between Young America and Old Fogy, is the result of Discoveries, Inventions, and Improvements. These, in turn, are the result of observation, reflection and experiment.
Writing – the art of communicating thoughts to the mind, through the eye – is the great invention of the world. Great in the astonishing range of analysis and combination which necessarily underlies the most crude and general conception of it, great, very great in enabling us to converse with the dead, the absent, and the unborn, at all distances of time and of space; and great, not only in its direct benefits, but greatest help, to all other inventions.
I have already intimated my opinion that in the world’s history, certain inventions and discoveries occurred, of peculiar value, on account of their great efficiency in facilitating all other inventions and discoveries. Of these were the arts of writing and of printing – the discovery of America, and the introduction of Patent-laws.
Can there be any doubt that the lawyer who wrote these words would instantly “get” the significance of the total transformation of writing, “the great invention of the world,” from tangible paper form, to intangible, digital form? Can there be any doubt that a lawyer like this would understand the importance of the Internet, the invention that unites the world in a web of inter-connective writing, where each person may be a printer and instantly disseminate their ideas “at all distances of time and of space?”
Abraham Lincoln did not just have a passing interest in new technologies. He was obsessed with it, like most good e-discovery lawyers are today. In the worst days of the Civil War, the one thing that could still bring Lincoln joy was his talks with the one true scientist then residing in Washington, D.C., the first director of the Smithsonian Institution, Dr. Joseph Henry, a specialist in light and electricity. Despite the fact that Henry’s political views were anti-emancipation and virtually pro-secession, Lincoln would sneak over to the Smithsonian every chance he could get to talk to Dr. Henry. Lincoln told the journalist, Charles Carleton Coffin:
My visits to the Smithsonian, to Dr. Henry, and his able lieutenant, Professor Baird, are the chief recreations of my life…These men are missionaries to excite scientific research and promote scientific knowledge. The country has no more faithful servants, though it may have to wait another century to appreciate the value of their labors.
Bruce, Lincoln and the Tools of War, p. 219.
Lincoln was no mere poser about technology and inventions. He walked his talk and railed against the Old Fogies who opposed technology. Lincoln was known to be willing to meet with every crackpot inventor who came to Washington during the war and claimed to have a new invention that could save the Union. Lincoln would talk to most of them and quickly separate the wheat from the chaff. As mentioned, he recognized the potential importance of aircraft to the military and forced the army to fund Professor Lowe’s wild-eyed dreams of aerial reconnaissance. He also recognized another inventor and insisted, over much opposition, that the army adopt his new invention: Dr. Richard Gatling. His improved version of the machine gun began to be used by the army in 1864, and before that, the Gattling guns that Lincoln funded are credited with defending the New York Times from an invasion by “anti-draft, anti-negro mobs” that roamed New York City in mid-July 1863. Bruce, Lincoln and the Tools of War, p. 142.
As final proof that Lincoln was one of the preeminent technology lawyers of his day, and if he were alive today, surely would be again, I offer the little known fact that Abraham Lincoln is the only President in United States history to have been issued a patent. He patented an invention for “Buoying Vessels Over Shoals.” It is U.S. Patent Number 6,469, issued on May 22, 1849. I could only find the patent on the USPTO web, where it is not celebrated and is hard to read. So as my small contribution to Lincoln memorabilia in the bicentennial year of 2009, I offer the complete copy below of Abraham Lincoln’s three page patent. You should be able to click on the images with your browser to enlarge and download.
The invention consisted of a set of bellows attached to the hull of a ship just below the water line. After reaching a shallow place, the bellows were to be filled with air that buoyed the vessel higher, making it float higher and off the river shoals. The patent application was accompanied with a wooden model depicting the invention. Lincoln whittled the model with his own hands. It is on display at the Smithsonian and is shown below.
Conclusion
On Abe Lincoln’ birthday it is worth recalling the long, prestigious pedigree of Law and Technology in America. Lincoln is a symbol of freedom, emancipation. He is also a symbol of Law and Technology. If Abe were alive today, I have no doubt he would be, among other things, a leader of Law and Technology.
Stand tall friends. We walk in long shadows and, like Lincoln, we shall overcome the hardships we face. As Abe himself was fond of saying: down with the Old Fogies; it is young America’s destiny to embrace change and lead the world into the future. Let us lead with the honesty and integrity of Abraham Lincoln. Nothing less is acceptable.
Posted by Ralph Losey 
It’s Mueller Time! I predict we will be hearing this call around the world for decades, including boardrooms. Organizations will decide to investigate themselves on sensitive issues before the government does, or before someone sues them and triggers formal discovery. Not always, but sometimes, they will do so by appointing their own independent counsel to check on concerns. The Boards of tomorrow will not look the other way. If Robert Muller himself later showed up at their door, they would be ready. They would thank their G.C. that they had already cleaned house.
Most companies who decide it is Mueller Time, will probably not investigate themselves in the traditional “full calorie” Robert Muller way, as good as that is. Instead, they will order a less expensive, AI based investigation, a Mueller Lite. The “full calorie” traditional legal investigation is very expensive, slow and leaky. It involves many people and linear document review. The AI Assisted alternative, the Mueller Lite, will be more attractive because of its lower cost. It will still be an independent investigation, but will rely primarily on internal data and artificial intelligence, not expensive attorneys.
Robert Mueller investigations typically cost millions and involves large teams of expensive professionals. AI Assisted investigations are cheap by comparison. That is because they emphasize company data and AI search of the data, mostly the communications, and need so few people to carry out. This new kind of investigation allows a company to quietly look into and take care of its own problems. The cost savings from litigation avoidance, and bad publicity, can be compelling. Plus it is the right thing to do..
The computer “reads” or reviews at nearly the speed of light and is 100% consistent. But it has no knowledge on its own. An idiot savant. The AI cannot do anything without its human handlers and trainers. It is basically a learning machine designed to sort large collections of texts into binary sets, typically relevant or irrelevant.
This new legal service allows concerned management to proactively investigate upon the first indications of possible wrong-doing. It allows you to have greater assurance that you really know what is going on in your organization. Management or the Board then retains an independent team of legal experts to conduct the quick E-Vestigation. The team provides subject matter expertise on the suspected problem and uses active machine learning to quickly search and analyze the data. They search for preliminary indications of what happened, if anything. This kind of search is ideal for sensitive legal inquiries. It gives management the information needed without breaking the bank or publicizing the results.
E-Vestigations are a pre-litigation legal service that relies heavily on artificial intelligence, but not entirely. Investigations like this are very complex. They are nowhere near a fully automated process, and as mentioned the AI is really just a learning machine that knows nothing except how to learn document relevance. The service still needs legal experts, but a much smaller team
The glory days of litigation are over. All trial lawyers who, like me, have lived through the last forty years of legal practice, have seen it change dramatically. Litigation has moved from a trial and discovery practice, where we saw each other daily in court, to a discovery, motion and mediation practice where we communicate by email and occasional calls.
But the times were a changing. In the nineties and first decade of the 21st Century, trials quickly disappeared. Instead, Mediation started to take over. I know, I was in the first group of lawyers ever to be certified as a Mediator of High Technology disputes in 1989. All types of cases began to settle earlier and with less preparation. I have seen cases settle at Mediation where none of the attorneys knew the facts. They just knew what their clients told them. Even more often, only one side was prepared a knew the facts. The other was just “shooting from the hip.”
E-Vestigations are confidential, internal investigations that focus on search of client data and metadata. They uses Artificial Intelligence to search and retrieve information relative to the client’s requested investigation, their information need. We use an AI machine training method that we call Hybrid Multimodal Predictive Coding 4.0. The basic search method is explained in the open-sourced 
E-Vestigation is done outside of Litigation and court involvement, usually to try to anticipate and avoid Litigation. Are the rumors true, or are the allegations just a bogus attempt to extort a settlement? E-Vestigations are by nature private, confidential investigations, not responses to formal discovery. AI Assisted investigations rely primarily on what the data says, not the rumors and suspicions, or even what some people say. The analysis of vast volumes of ESI is possible, even with millions of files, because e-Vestigations use Artificial Intelligence, both passive and active machine learning. Otherwise, the search of large volumes of ESI takes too long and is too prone to inaccuracies. That is the main reason this approach is far less expensive than traditional “full calorie” Muller type investigations.
Defendants in criminal cases will still plea out, but based on the facts, on truth, not threats. Defendants in civil cases will do the same. So will the plaintiff in civil cases who makes unsubstantiated allegations. Facts and truth protect the innocent. Most of that information will be uncovered in computer systems. In the right hands, E-Vestigations can reveal all. It is a proactive alternative to Litigation with expensive settlements. The AI data review features of E-Vestigations make it far less expensive than a Muller investigations. Is it Mueller Time for your organization?
I find this kind of constant monitoring to be distasteful. For me, it is too Big Brother and oppressive to have AI looking at my every email. It stifles creativity and, I imagine, if this was in place, would make me overly cautious in my communications. Plus, I would be very concerned about software error. If some baby AI is always on, always looking for suspicious patterns, it could make mistakes. The programming of the software almost certainly contains a number of hidden biases of the programmers, typically young white dudes.
Stealthiness:
Speed:
As discussed, the rise and commoditization of Mediation over the last twenty years has had unintended consequences. The move from the courtroom to the mediator’s office in turn caused the Law to move from objective to subjective opinion. Discussion of the consequences of mediation, and the subjectivist attitude it brings, complicates my analysis of the death of Litigation, but is necessary. Litigation did not turn into private investigation work. One did not flow into another. Litigation is not changing directly into private Investigations, AI assisted or not. Mediation, and its unexpected consequences, is the intervening stage.
Most of my Mediator friends strongly disagree, but I have never heard a compelling argument to the contrary. The death of the trial is a stunning development. But mediation has had another impact. One that I have not seen discussed previously. It has not only killed trials, it has killed the whole notion of objective truth. It has led to a mediation mind-set where the “merits” are just a matter of opinion. Where cost of defense and the time value of money are the main items of discussion.
Objective accounts of what happened in the past are not only possible, they are probable in today’s Big Data world. Your Alexa or Google speakers may have part of the record. So too may your iWatch or Fitbit. Soon your refrigerator will too. Data is everywhere. Privacy is often an illusion. (Sigh.) The opportunity of liars and other scoundrels to “get away with it” and fool people is growing smaller every day. Fortunately, if lawyers can just learn a few new evidence search skills, they can use AI to help them find the information they need.
As Michiko Kakutani said in her book, 
The truth is attainable, but requires dedication and skilled efforts by everyone on a legal team to find it. It requires knowledge of course, and a proven method, but also impartiality, discipline, intelligence and a sense of empathy. It requires experience with what the AI can do, and just as important, what it cannot do. It requires common sense. Lawyers have that. Jurors have that.
There is a new case out of Chicago that advances the jurisprudence of my sub-specialty, Legal Search. 
Judge Johnston begins his order in City of Rockford with a famous quote by 
One of the main points Judge Johnston makes in his order is that lawyers should embrace this kind of technical knowledge, not shy away from it. As 
To be specific, the Plaintiffs wanted a test where the efficacy of any parties production would be tested by use of an Elusion type of Random Sample of the documents not produced. The Defendants opposed any specific test. Instead, they wanted the discovery protocol to say that if the receiving party had concerns about the adequacy of the producing party’s efforts, then they would have a conference to address the concerns.
One of the fundamental problems in any investigation is to know when you should stop the investigation because it is no longer worth the effort to carry on. When has a reasonable effort been completed? Ideally this happens after all of the important documents have already been found. At that point you should stop the effort and move on to a new project. Alternatively, perhaps you should keep on going and look for more? Should you stop or not?
Once a decision is made to Stop, then a well managed document review project will use different tools and metrics to verify that the Stop decision was correct. Judge Johnston in City of Rockford used one of my favorite tools, the Elusion random sample that I teach in the e-Discovery Team TAR Course. This type of random sample is called an Elusion sample.
Judge Johnston’s Footnote Two is interesting for two reasons. One, it attempts to calm lawyers who freak out when hearing anything having to do with math or statistics, much less information science and technology. Two, it does so with a reference to 
Although this is not addressed in the court order, in my personal view, no False Negatives, iw – overlooked documents – are acceptable when it comes to Highly Relevant documents. If even one document like that is found in the sample, one Highly Relevant Document, then the Elusion test has failed in my view. You must conclude that the Stop decision was wrong and training and document review must recommence. That is called an Accept on Zero Error test for any hot documents found. Of course my personal views on best practice here assume the use of AI ranking, and the parties in City of Rockford only used keyword search. Apparently they were not doing machine training at all.
The inherent problem with random sampling is that the only way to reduce the error interval is to increase the size of the sample. For instance, to decrease the margin of error to only 2% either way, a total error of 4%, a random sample size of around 2,400 documents is needed. Even though that narrows the error rate to 4%, there is still another error factor of the Confidence Level, here at 95%. Still, it is not worth the effort to review even more sample documents to reduce that to a 99% Level.
In 
Judge Johnston takes an expansive view of the duties placed on counsel of record by Rule 26(g), but concedes that perfection is not required:
Judge Johnston considered as a separate issue whether it was proportionate under Rule 26(b)(1) to require the elusion test requested. Again, the court found that it was in this large case on the pricing of prescription medication and held that it was proportional:
It will be very interesting to watch how other attorneys argue City of Rockford. It will continue a line of cases examining methodology and procedures in document review. See eg., William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134 (S.D.N.Y. 2009) (“wake-up call” for lawyers on keyword search); 
Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used 
Many courts have followed O’Keffe, even though it is a criminal case, and declined to step in and order specific searches without expert input. See eg. the well-known patent case, 
More recently, e-discovery expert Judge James Francis addressed this issue in 
I am inclined to agree with Judge Francis. I know from daily experience that legal search, even keyword search, can be very tricky, depends on many factors, including the documents searched. I have spent over a decade working hard to develop expertise in this area. I know that the appropriate searches to be run depends on experience and scientific, technical knowledge on information retrieval and statistics. It also depends on tests of proposed keywords; it depends on sampling and document reviews; it depends on getting your hands dirty in the digital mud of the actual ESI. It cannot be done effectively in the blind, no matter what your level of expertise. It is an iterative process of trial and errors, false positives and negatives alike.
Recently appointed U.S. Magistrate Judge Laura Fashing in Albuquerque, New Mexico, heard a case involving a dispute over keywords. 
Of course I agree with Judge Fashing’s concluding reminder to the parties. Cooperation is key, but so is expertise. There is a good reason for the fear felt by Facciola’s angels. They wisely knew that they lacked the necessary technical, scientific knowledge for the proper selection and implementation of keyword searches. I only wish that Judge Fashing’s order had reminded the parties of this need for experts too. It would have made her job much easier and also helped the parties. Sometimes the wisest thing to do is nothing, at least not until you have more information.
Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects,
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