Can Justice Survive the Internet? Can the World? It’s Not a Sure Thing. Look Up!

April 17, 2022

Civilization is being destroyed by misinformation and lies on the internet. A steady diet of phony facts is killing Lady Justice. She needs rules of evidence to survive, to weed out truth from lies. She needs help from those with knowledge and wisdom, not just those with money, greed and power. She also needs help from fair, unbiased artificial intelligence, for otherwise the volume of information is too vast to monitor. Rules of evidence for public discourse perhaps? Artificial intelligence cyberverse administrators with experts to monitor and judge? I don’t have the answers. Just a broad outline based on a life of experience with computers and online communities. Just a sense of foreboding about the dangers created during my early watch on the internet to today. To help make sense of the quandary we are now in, I draw upon the historical perspective of Information → Knowledge → Wisdom. This was articulated in my blogs in 2015 and 2016. I made predictions then on how the internet age of personal computers would turn out. Spoiler alert, I saw some dangers, but missed how fast they would approach, missed the severity of the threats.

Read on to hear my rant, which, much like the scientists in Don’t Look Up, scream about the dangers ahead. Mock me if you will, even worse, ignore these warnings. But, as frustrating as this may be, I have got to try. Mere information, often misinformation, without knowledge and wisdom, is a killer comet. It is a planet killer. These threats are real. It’s really happening. Look around you. Look up, but don’t give up.

Perspective from the “Information → Knowledge → Wisdom” Theory of Historical Progression of Society.

On April 5, 2015, I published: Information → Knowledge → Wisdom: Progression of Society in the Age of Computers. The blog started with a self-evident presumption: the personal computer revolution started by the Hacker elite in the 1970s, and the internet based digital age that followed, had completely transformed the world. I had high hopes this transformation was for the good. I have been an active participant, albeit minor, and an observer in this paradigm shift.

Steve Jobs and Steve Wozniak

My use of the word “hacker” in the 2015 article referred to the original meaning of hands-on computer experts, like the two Steves, Jobs and Wozniak. I am not referring to bad guy computer thieves, which most people now think of when they hear hacker. My blog affirmed that these early computer pioneers, including the likes of Gates, Page, Brin, Bezos, Musk and Zuckerberg, were hackers that changed the world. They helped usher in a new Internet personal computer Age of Information. The blog asserted that:

The first generation of hackers born in the fifties … have quickly changed our world into an information based society. . . . The first step – Information – is just a stepping stone to a more mature, Knowledge-based culture.

After extolling the many opportunities of a technology based shift to an information age, I also warned of the dangers of this paradigm shift. I suggested that society in general would be doomed, and justice in particular, which is my career, unless we quickly moved past an Information based society, into one based on genuine Knowledge and pursuit of Wisdom, the final goal. Here are a few highlights:

The spike and distribution of online information is just a first major consequence of the New Age of Computation. It will not be the last. The focus on information alone will soon change, indeed, must soon change. The information explosion is nowhere near the final goal. Information alone is dangerous and superficial. Our very survival as a society depends on our quick transition to the next stage of a computer culture, one where Knowledge is the focus, not Information. We must now quickly evolve from shallow, merely informed people with short attention spans, and superficial, easily manipulated insights, to thoughtful, knowledgeable people. Then ultimately, some day, we must evolve to become truly wise people.

I wish now, seven years later, that the warnings had been even more strident. I did not realize how fragile society was to the influence of lies and propaganda. I did not foresee how quickly society could devolve and justice lost in clouds of confusion.

Benchmark Predictions to Test the Information → Knowledge → Wisdom Hypothesis

To provide a benchmark for the accuracy of this Information → Knowledge → Wisdom hypothesis, I made twelve fairly specific predictions in April 2015. My hedge is that these predictions are five to twenty years out, i.w. – from 2020 to 2035. Although I missed the intensity of the downside, overall I think the predictions have panned out pretty well. You be the judge. Here are summaries of the twelve predictions, see the original essay for full descriptions.

First Prediction. The Metaverse will be created, or as I put it then, the creation of many new types of cyber and physical interconnectivity environments . . . The new multidimensional, holographic, 3D, virtual realities will use wearables of all kinds . . .” This prediction is obviously coming true. Zuckerberg even renamed his company accordingly.

Second.Some of the new types of social media sites will be environments where subject matter experts (SME) are featured, avatars and real, cyber and in-person, shifted and real-time.” Again, now obvious, although the “in-person”aspects have been slowed by Covid while the online accelerated.

Third. The new SME environment will include products and services, with both free and billed aspects. Again, obvious, with pandemic based slow-down on in-person aspects and overall, still a long way to go to counter all of the misinformation and outright lies.

Fourth. The knowledge nest environments will be both online and in-person. Again, same comment.

Fifth. The knowledge focused cyberspaces, both those with and without actual real-words SMEs, will look and feel something like a good social media site of today, but with multimedia of various kinds. This is coming true.

Sixth. “The admins, operators and other staff in these cyberspaces will be advanced AI, like cyber-robots. Humans will still be involved too, but will delegate where appropriate, which will be most of the time. This is one of my key predictions.” I quoted this sixth prediction in full. It is disappointing that this is still in an early stage of actualization. But I stand by the optimism that it will be realized by no later than 2035. If not, society and justice as a living ideal may be lost. Humans need the help of advanced and objective AI. We are obviously too immature and F’ed up to go it alone with all of this technology at our fingertips. Without AI’s help, we are likely to destroy ourselves before we become an interplanetary species with increased odds of survival.

Seventh.The presence of AIs will spread and become ubiquitous.” Again, this prediction is a work in progress, there is AI of sorts everywhere, including your refrigerator as predicted, but it’s not that smart. Just try this and hear for yourself: Hey Google, how smart are you?

Eighth. The eighth prediction is kind of fun, so I will quote in full, but this is still in the early stages. By 2035 it will be full blown, that is, if we survive that long: “The knowledge products and services will come in a number of different forms, many of which do not exist in the present time (2015), but will be made possible by other new inventions, especially in the area of communications, medical implants, brain-mind research, wearables, and multidimensional video games and conferences.

Ninth. The first part of the ninth prediction is, again, starting to come true for cyber learning, but is still a work in progress: “All subject areas will be covered, somewhat like Wikipedia, but with super-intelligent cyber robots to test, validate and edit each area.

Tenth. The tenth prediction is really important and so I quote it here in full. The very survival of democracies and justice may well depend on this. “The AI admins will monitor, analyze, and screen out alleged SMEs who do not meet certain quality standards. The AI admins will thus serve as a truth screen and quality assurance. An SME’s continued participation in an AI certified site will be like a Good Housekeeping Seal of Approval.This has not yet happened, although we have recently begun seeing early signs of it. The fix needs to happen now and FAST. Mark Zuckerberg, Elon Musk, others, are you listening? The internet has been broken by a web of lies with no rules of evidence. The best way out seems to be the use of objective, ethical AI. Stop wasting AI to sell us more stuff. Use it to help us save ourselves from propaganda, to help us to move into a knowledge and wisdom based society.

Eleventh. Same comment as to our hopes of survival applies to the eleventh prediction. “The AI admins will also monitor and police the SME services and opinions for fraud and other unacceptable use, and for general cybersecurity.

Twelfth. The last 12th prediction is an optimistic vision of the AI guided cyber-knowledge-nests predicted to save us from misinformation and fraud, but I still have hopes for its realization by 2035. ” … They will provide a comforting alternative to information overload environments filled with conflicting information, including its lowest form, data. These alternative knowledge nests will become a refuge of music in a sea of noise. Some will become next generation Disney World vacation paradises.

Examining the Twelve Predictions in 2016

I examined these twelve hypothesis-testing predictions a year after I made them in How The 12 Predictions Are Doing That We Made In “Information → Knowledge → Wisdom.” In this essay you can find more depth on this theory and twelve predictions. Although overall, in early 2016, I was still optimistic, as the next video shows, still, I warned that:

The transition from mere Information to Knowledge is seen as a necessary survival step for society, not an idealistic dream. … We remain hopeful that artificial intelligence will help usher in a Golden Age of Knowledge, then ultimately of Wisdom. This is not to deny the possibility of dark futures with human subjugation by robot overlords or all-too-human political despots, etc. In order to avoid these dystopias we need to know and understand the real dangers we are now facing, including, without limitation, AI, and act accordingly.

Unfortunately, the events since that last blog have underscored the danger, the very real terror, of misinformation and lack of knowledge. We have seen how quickly the information age can destroy society. The transition into a knowledge based age is now an urgent need of everyone. Back in 2016, my focus was more optimistic and education based.

To try to show the difference between the three levels, information – knowledge – wisdom, I illustrated with a down to earth example. I asked who you would rather talk to, an informed, knowledgeable or wise person? I hoped this would encourage people to move beyond information based culture into knowledge and wisdom.

Ralph Losey in 2016

Things have changed a lot since 2016 when I made that video. Then I had expected more wise women and men to emerge and take action on the world stage. Instead, we have seen the opposite; fewer wise people and many more fools than I had ever dreamed possible. The wisest I have seen lately is a Ukrainian law school graduate, turned comedian, turned statesman, Volodymyr Zelenskyy, who said:

Let’s build a country of opportunities, where everybody is equal before the law and where the rules of the game are honest and transparent, and the same for everyone.

People don’t really believe in words. Or rather, people believe in words only for a stretch of time. Then they start to look for action.

We will fight to the end. We will not give up and we will not lose.

My Other Blogs on ‘Information → Knowledge → Wisdom’

For more essays on the perspective of ‘Information → Knowledge → Wisdom’, see: What Chaos Theory Tell Us About e-Discovery and the Projected ‘Information → Knowledge → Wisdom’ Transition. In this May 2016 essay, primarily about the application of Chaos Theory of physics to electronic discovery, I noted:

The first Information stage of the post-computer society in which we live is obviously chaotic. It is like the disconnected numbers that lie completely outside of the Mandelbrot set. It is pure information with only haphazard meaning. It is often just misinformation. Just exponential. There is an overwhelming deluge of such raw information, raw data, that spirals off into an infinity of dead-ends. It leads no where and is disconnected. The information is useless. You may be informed, but to no end. That is modern life in the post-PC era.

In another blog of May 2016 on Information Theory and e-discovery, What Information Theory Tell Us About e-Discovery and the Projected ‘Information → Knowledge → Wisdom’ Transition, I concluded:

From trillions to a handful, from mere information to practical wisdom — that is the challenge of our culture today. On a recursive self-similar level, that is also the challenge of justice in the Information Age, the challenge of e-discovery. How to meet the challenges? How to self-organize from out of the chaos of too much information? The answer is iterative, cooperative, interactive, interdisciplinary team processes that employ advanced hybrid, multimodal technologies and sound human judgment. . . .

The challenge of Culture, including Law and Justice in our Information Age, is to never lose sight of this fundamental truth, this fundamental pattern: Information → Knowledge → Wisdom. If we do, we will get lost in the details. We will drown in a flood of meaningless information. Either that, or we will progress, but not far enough. We will become lost in knowledge and suffer paralysis by analysis. We will know too much, know everything, except what to do. Yes or No. Binary action. The tree may fall, but we never hear it, so neither does the judge or jury. The power of the truth is denied. . . .

Meaning is the whole point of Information. Justice is whole point of the Law.

Conclusion

Looking back on my writings, I stand by the usefulness of the Information → Knowledge → Wisdom construct as a tool for understanding the rapid changes in society. But, looking back seven years, I see my warnings of danger were too soft. In 2015, I could, like many, envision the dangers of an Information Age, but I did not realize the gravity of the situation. Nor did I foresee how quickly our society could degrade. I did not realize how fast misinformation and lies could spread to a gullible public and destroy the very fabric of civilization. Also, I thought AI would develop faster and be used for the common good to help push us into knowledge and wisdom.

We need better evidence tests of information, and quickly, to weed out the lies. Rules of evidence for public discourse perhaps? Better use of AI? I see what a terrible mess we are now in with democracies threatened everywhere. But I still have hope. Based on my hands-on work with AI in evidence since 2012, I sense that artificial intelligence can help us out of this mess.

We are now in a dangerous transition age. A time where our AI is still pretty stupid and focused on surveillance and sales. A time where anyone can claim to be an expert, to have knowledge and wisdom, when they have none. An age where there is no reasonable cross-examination and almost no polite society. An age where there are constant lies, rude confrontations, screaming and violence. Where is ethics? Morality? Shared values of common decency and fair dealing?

Ralph Losey 2022 – Look Up!

So now, much like the scientists heroes in Don’t Look Up, I am screaming about the dangers as loud as an old trial lawyer, blogger can. Misinformation, without knowledge and wisdom, is a killer comet that could destroy our civilization, and, by secondary environmental damage, could destroy all life on Earth. It is a planet killer. These threats are real. It’s really happening. Look around you. Look up, but don’t give up.

Justice has always been an elusive ideal, a quest based on evidence based truth, rules of admissibility and social values. In 2015, I was seeing progress in justice. I thought AI would advance more quickly than it has. Now, I am not sure how we can get through this. I see regression. I see democracies everywhere on edge, justice severely challenged and the rise of “strong-man” dictatorships. The threats are real. This is really happening.

In 2015, I had more hope for the future than I do today. But, to share the pep talk I give myself regularly, we must never give up. We must make that struggle for the sake of future generations, our children, grandchildren and beyond. To quote Zellensky again, “We will fight to the end. We will not give up and we will not lose.” We must continue to fight for truth, genuine knowledge and wisdom. We cannot go willingly into the dark night of misinformation and lies. These are not dreamy ideals, these are species survival imperatives. These threats are real. It’s really happening. We must not lose.


Plato’s Cave: why most lawyers love paper and hate e-discovery and what this means to the future of legal education

April 9, 2022

Ralph_matrixTHIS BLOG WAS ORIGINALLY POSTED IN 2009. IT IS ONE OF MY ALL-TIME FAVORITES. To me it seems like a Classic, just as relevant today, in 2022, as when first written. We are still stuck in a cave of shadows and lies. Only the true facts, seeing things as they are, will set us free. Perhaps eDiscovery, and the change in perspective it can provide for lawyers, judges and others, can liberate us from propaganda, lies and shadows. Perhaps it can help lead us into the light.

_________________

matrixThe most famous allegory in all of Western Civilization is that of Plato’s Cave. This conceptual image is based on deep insights into the human condition. For millennium this analogy has allowed people to better understand each other and the world in which they live. As proof of its eternal veracity, I offer it as an explanation for why most lawyers today love paper and hate electronic discovery. The Socratic approach also points to a way out of the legal profession’s current crises of e-discovery competence; it suggests that a new form of education is imperative. The alternative may well be radical inter-generational disruptions and discontinuities in the practice of law.

Plato’s Cave

First a refresher on Plato’s Analogy of the Cave. It is found at the beginning of book seven on The Republic, which was written by Plato in 380 BC.  It takes the form of a dialogue between Socrates and Plato’s brother, Glaucon, concerning education. Socrates tells the story of prisoners who have been held captive in a cave all of their lives. They are chained so that they can only see shadows on the wall of people walking on a path behind them in front of  a fire. They can not directly see the people or the things that they carry. They can only see their shadows cast on the cave wall. That is all they have know all of their life and so they mistake the shadows for the people and things themselves. They are totally absorbed by the shadows and have become quite adept at interpreting what they supposedly mean. Here is a common graphic illustration of the cave set up.

Platos cave from The Republic

One day a prisoner is freed of his chains and taken out of the cave and dragged up into the light. After a long period of adjustment he is able to see in the new light filled world and discover that he had been mistaking shadows for reality. He returns to tell his prisoner friends, but has trouble adjusting to the dark and shadows. He cannot still see the fine distinctions that the prisoners make out in the flickering forms. They still cannot turn around or leave the cave. They still see only shadows and know nothing else. They do not believe their returning friend. He does not see the shadows as they do. They think he is quite mad. In fact, they hate him for his better-than-thou stories and would kill him if they could. To refresh your memory with more of the details of the story of Plato’s cave, watch this cool clay animation version. I am sure Socrates would have approved.

Want an even more detailed refresher of the story of Plato’s Cave? Then watch this longer video, featuring a reading of a translation of this segment of The Republic dialogue. Note how in today’s world the cave shadows have been replaced by television images and other mass media.

By the way, The Matrix movie is the latest popular cultural expression of this perennial idea. Check out this video which spells that out for you.

Now read the original words of Plato. After telling the story, Socrates explains to young Glaucon the significance of the analogy of the cave to life and education.

And again, do you think it at all strange, said I, if a man returning from divine contemplations to the petty miseries of men cuts a sorry figure and appears most ridiculous, if, while still blinking through the gloom, and before he has become sufficiently accustomed to the environing darkness, he is compelled in courtrooms or elsewhere to contend about the shadows of justice or the images that cast the shadows and to wrangle in debate about the notions of these things in the minds of those who have never seen justice itself?

It would by by no means strange, he said.  …

Then, if this is true, our view of these matters must be this, that education is not in reality what some people proclaim it to be in their professions. What they aver is that they can put true knowledge into a soul that does not possess it, as if they were inserting vision into blind eyes.

They do indeed, he said.

SocratesBut our present argument indicates, said I, that the true analogy for this indwelling power in the soul and the instrument whereby each of us apprehends is that of an eye that could not be converted to the light from the darkness except by turning the whole body. Even so this organ of knowledge must be turned around from the world of becoming together with the entire soul, like the scene-shifting periactus in the theatre, until the soul is able to endure the contemplation of essence and the brightest region of being. And this, we say, is the good, do we not?

Yes.

Of this very thing, then, I said, there might be an art, an art of the speediest and most effective shifting or conversion of the soul, not an art of producing vision in it, but on the assumption that it possesses vision but does not rightly direct it and does not look where it should, an art of bringing this about.

Yes, that seems likely, he said.

This quote is from my favorite translation from the ancient Greek by Edith Hamilton and Hunington Cairns, published by Princeton University Press as part of the Bollingen Series.

Paper Lawyers

Lawyers today, much like the prisoners of Plato’s cave, love paper because that is all they have ever known. They grow up in a paper world. They learn how to read on paper. They study paper books. They go to law schools where they learn that legal documents are made of paper. Their professors are just like them. They surround themselves with great piles of paper literature and paper case law. They teach using paper books and paper flip charts and require students to write papers. When taking evidence and trial classes, law students are taught with paper documents, shown how to test the authenticity of paper records and how to have paper admitted into evidence.

paper doll cutouts

After school, older lawyers give them an endless supply of extra long paper, called legal pads, and do their best to keep them up to their neck in paper work. They are shown how to generate papers, copy papers, pile papers, file papers, notarize papers, shuffle papers, staple papers, clip papers, highlight papers, redact papers, watermark papers, and even add paper stickums to paper. They also learn how to keep paper calendars, speed-read large files full of papers, spot check papers, and carefully proof-read papers till they are perfect.

milton waddams

Some lawyers cover all of the furniture in their office with papers. A few even go so far as to put piles of paper on the floor creating an obstacle course to and from their desk, which is also entirely covered with papers. Papers make lawyers feel safe and secure. They provide status and prestige as a demonstration of productivity. They like to frame papers and put them on their walls. Some lawyers learn how to fax papers back and forth to each other. Some even learn how to email letters to each other and print out important ones to make them real.

Dunder Mifflin

Most judges and courts love paper too. Lawyers are required to serve papers on parties and opposing counsel, file papers with the court, and make paper trial exhibits. No witness exam is complete without marking papers, handing them to the clerk, opposing counsel, the judge, and then the witness. Some lawyers even blow up the special papers that they like to make them really, really big papers that everyone can easily see.

The trial lawyers are especially good with papers. They learn to chase paper trails, find tons of paper in other people’s filing cabinets, copy the paper, stamp the paper, produce the paper, and then explain the papers to a judge and jury. Some even learn advanced paper techniques such as Bates stamping papers to bring out their hidden order.

Lawyers live their entire life in a paper world. They start each day by reading a newspaper. When not doing paper work, they read paper books and magazines for fun. It is all paper, all the time, at work and at home. Lawyers are very adept at interpreting paper. They are the experts of paper forms. No paper is too lengthy or complex for them to figure out. Lawyers can and do stare at papers all day long

Just like the prisoners in Plato’s Cave, they do not know that their beloved papers are shadows, mere print outs of a greater electronic reality.

Electric Lawyers

Almost all of the papers that lawyers love come from computers. There, in the electronic realm, they live in their full native glory.  There, and only there, is all of their information intact, their metadata, interconnectedness, and search-ability. None of this information ever makes it to the printer. The paper printouts are just two dimensional depictions of parts of the original ESI, in the same way that shadows are just two dimensional depictions of the original 3D objects. Papers are pale substitutes for the original electronic creations.

Just as the prisoners in Plato’s cave saw only the shadows of the people and things that happened to pass on the path behind them, so too the lawyers see only the papers that happened to have passed through a printer. They thereby miss most of the information world. In truth, only a very, very small percentage of information is ever printed out. In fact, almost all businesses records today only exist in electronic form and are never reduced to paper. The world of electronic information is far larger, more complex, interconnected, and beautiful than the paper lawyers could ever imagine.

Some lawyers manage to escape from their paper prisons, embrace the new world of electronically stored information, and sing the body electric. The transition from the paper shadows to full ESI is not easy. At first, most are overwhelmed by the sheer complexity and volume of the electronic source behind the paper shadows they knew so well. They are dazed and confused by the full magnitude of the information. It takes them time to grow acclimated to the new metadata they can now perceive. It takes them time to understand the interconnectedness of all digital information and grasp how it can be instantly searched and processed. But when they do, a whole new world of languages and skills opens up to them. Slowly they become masters of the electronic world that most of their clients take for granted. They learn to speak in new technical languages and start to understand how the world around them really operates. They stop printing out their emails and start using spreadsheets. They learn to hack and hash. They enter the Internet unafraid and rejoice in the near infinite webwork of html. They are reborn in cyberspace. They become electric lawyers.

matrix neo

Just as in Plato’s story, some of the electric lawyers feel compassion for their paper brothers. They decide  to return to the cave to try to practice law in the shadows again and share their new-found knowledge. At first, their eyes cannot adjust. They cannot remember all of the false distinctions made by those who do not grasp that paper is a mere printout of a larger reality. They speak in a language that the paper lawyers call techno-talk gibberish or computerese. They are not understood. Indeed, they are laughed at as nerds and geeks. When they first began to return in the early 1980s, the ones Ken Withers calls the protodigitals, the paper lawyers saw only their keyboards. In their darkness they understood them as typewriters and ridiculed the computer lawyers as secretaries.

The tales by electric lawyers of a vast new world of digital information, of better and faster, are misunderstood and ridiculed. The paper lawyers do not believe their wild stories of a so-called information explosion. They ignore the need to include requests for ESI in discovery. They reject the new hash stamps of digital information and stubbornly cling to their Bates stamps. The papers lawyers stick to the paper discovery. If they even bother to request email at all, they take the paper print-outs as if they alone were real. They do not understand metadata. It is invisible to them. So they refuse to produce it, whatever it is.

Just as in Plato’s story, the paper prisoners feel threatened by their electric brothers and sisters who speak a strange new language and live in a different world. They counter-attack in many ways. For instance, in the 1990s they persecuted electric lawyers who were the first to the Internet and accused them of broadcasting television ads without permission. One electric lawyer was even forced to submit his entire website to his state Bar association for approval as a television ad. His attempts to explain the world outside of the paper cave were futile. They saw the web show for themselves on the televisions sitting on their secretaries’ desks, which were actually computer monitors, but they did not understand the difference. The protodigital lawyer complied and printed out his whole website, disclaimers and all, consisting of thousands of pages of paper when so downgraded into two dimensions. Once the Bar governors saw the television add in the paper they loved and understood, they quibbled with a few terms, required a couple of revisions, and then approved his website, floridalawfirm.com, as a TV broadcast. The channel still remains, although the show has changed many times over the years.

Ostrich with Head in SandIn the Twenty First Century the paper lawyers continue to react as Plato predicted, albeit with more sophistication than before. They now spread rumors that electronic discovery is too expensive and will destroy our system of justice if not stopped. Other times they dismiss e-discovery as a mere fad that will pass. It is as if they really believed that people will soon abandon technology and return to the word of phone calls, ink, and parchment that they know and love. Flat screen computer monitors are starting to appear on cave walls everywhere, but they do not believe them. They live in denial.

When paper lawyers of today speak of computers at all, they speak only of computer viruses and threats to security. They attempt to clamp down on all employee computer use. They limit permissible software to ancient versions of Microsoft Office programs. They also try to make most of the Internet off-limits to all employees. They still pretend like only their clients’ paper records are real and only these papers contain information valuable for law suits. The only reason most clients have not left them years ago is that the senior in-house counsel are detached from the rest of the technologically sophisticated segments of the company. The senior in-house counsel are paper lawyers too and so they protect their own.

Ostrich head - careful, they bite

Some trial attorneys, with or without the permission of their clients, go so far as to enter into secret agreements with each other to ignore the alleged larger world outside the cave. They agree to look only at paper. Their often skeptical clients go along, intimidated by the rumors of runaway costs. Indeed, when paper lawyers dabble with ESI that they cannot ignore, they try to catch the fire through its shadows. That leads to mistakes, do overs, and wasteful expenses. It also often leads to sanctions and what appears to be unethical behavior. An ostrich can be mean when their head is removed from the sand against their will and they are forced to confront their own shadow.

Bray & Gillespie

A new order by Magistrate Judge Karla R. Spaulding illustrates this later point perfectly. Bray & Gillespie Management LLC v. Lexington Ins. Co. 2009 WL 2407754 (M.D.Fla. August 3, 2009). Severe sanctions were entered against the plaintiff and its lawyers for not producing hotel guest attendance records. The plaintiff’s paper lawyers only looked for these records in warehouses full of papers. When they found them in segments, they only made selective disclosures of what they found.  They were caught and sanctioned. The whole thing could have been avoided by simply producing the electronic guest records that were, of course, at all times readily available in the plaintiff’s computer system. They did not even try to look there, even though a native production was specifically requested and ordered by the court.

As an excuse plaintiff had a legal secretary for in-house counsel file an affidavit where she said it was impossible to download or export the data from their software, IQWare. She actually swore that the only way to get the information was to print it out onto paper. This is of course absurd, as a ten second search shows that their software is just a customized MS SQL database. It would have been easy to copy the database and turn it over, but the lawyers and their assistants only understood paper. As a result, they will now almost certainly lose the case. Judge Spaulding has entered a report and recommendation that plaintiff’s complaint be dismissed with prejudice and fees taxed against the plaintiff, now in bankruptcy, and its lawyers, not in bankruptcy, for their intentional, bad faith withholding of evidence and defiance of court orders requiring production of electronic evidence.

Some Electric Lawyers Stay and Some Go

Some electric lawyers grow frustrated with paper law and disputes like we see in Bray & Gillespie. They leave the cave and the practice of law entirely. They go to work for high-tech companies, e-discovery vendors, or become consultants, and the like. They devise ways to make ESI accessible to lawyers by making ESI seem like paper. They learn to convert electronic information to pseudo-paper images called TIFF and JPEG files. They keep most of the metadata in separate load files and try to convince the paper lawyers to use these image files instead of the paper print-outs. They enjoy some success and whole industries have been started devoted to the creation of a netherworld of image files between ESI and paper. Special software has been devised to allow the paper lawyers to review the electronic files on computers as if they were paper. This kind of TIFF review is expensive, but it allows paper lawyers many of the comforts of the cave. They can keep their familiar Bates stamp and can easily make print-outs of any image files they see for use at paper trials.

electric headOther electric lawyers refuse to leave their firms, they refuse to go solo or join the world of vendors and consultants. They love the law firm culture for the same reason that paper lawyers love paper. It is all they have ever known. They remain in the practice of law and learn to hide the light and play the shadow games. They go along with the vendors go-between world of electronic TIFF image files. They stop crusading about the wonders of full digital reality and thus escape the ire of their partners, but they never give up on trying to subtly persuade them. Some are successful. It is a slow process. More and more lawyers free themselves from their paper chains. The electric lawyers learn to sidestep the reactionary rules and deal directly with the clients who understand. They leave the cave as needed to maintain their sanity.  They find sanctuary in their homes, families, and friends that are entirely out-of-cave and in the light.

Some electric lawyers are no longer satisfied with the compromise solution of hot-shadow TIFFs. They insist that the paper lawyers leave the cave entirely and deal directly with the original native forms. The clients of the paper lawyers are also not satisfied because the nether world of image review is expensive and they are asked to pay the bills. Some of the judges are also becoming dissatisfied with such pretend paper discovery. Yes, many judges have also been able to find their way out of the cave and see the light of full ESI. Once they return, they no longer tolerate the paper lawyers’ pretenses. They grow weary of the mistakes, hide-the-metadata blunders, last minute discovery requests, and the many sanctions motions that happen whenever paper lawyers play with the fire of ESI.

Education by Changing Direction, Not Inserting Vision

Although many lawyers have now escaped, the vast majority of the legal profession still live in the cave. Most lawyers are not able to keep up with technology, they are unable to deal with the electronic evidence underlying most lawsuits. They cannot adequately preserve it, collect it, process it, search it, or present it. In short, they cannot conduct e-discovery or comply with the new rules of procedure governing e-discovery because they do not know how. They only know and understand paper discovery and paper evidence. They are blind to the dynamics of electronic information.

If Plato’s theories of education are correct, this knowledge cannot simply be transmitted to them. There is no lecture or CLE program brilliant enough to insert vision into those habituated by a lifetime of paper. The mind is not a tabula rasa to be written upon by subject matter experts, especially by the time a person is an adult. As Plato said, learning requires “turning the whole body.” Lawyers must leave the caves, stop staring at the paper shadows, and make a change of direction. Lawyers must enter cyberspace and become familiar with computers and software of all kinds.  Then, and only then, will learned lectures, over time, be effective.

seeing new worlds

The Socratic process of learning by changing direction and action has already begun. Many lawyers and paralegals today are ready to change and leave the cave. The message has gotten through and they know that paper is only a small part of reality. Most lawyers already have a computer on their desk and use email throughout the day. They are ready to escape the paper chains.

All that they need now is an effective education that facilities the process of a new direction. We cannot use paper to awaken people from a paper induced trance. By logic only a cyberspace approach to education will be effective. Our current brick and mortar approach to e-discovery education is conceptually flawed. Online education is the answer. As Marshall McLuhan said: “The medium is the message.”

Not just any online education of course. It has to be good, it has to be effective. For online education to work, to turn people around in the Socratic sense, it needs to be interactive, hands on, creative, and include dialogues and community. It needs to be a high quality art form; in Plato’s words: “an art of the speediest and most effective shifting or conversion of the soul.” Of course, I do not mean anything religious by this, but I do mean a total transformation of perception, attitude, thinking, and action.

This new education will not come from law schools, they are tied up by paper bound professors. It will come from private companies that lead in technology. It needs to come soon, because society will not wait on the paper lawyers much longer.

Conclusion

Some of the protodigitals in all lines of work raised families and taught their children to read on computers, not paper. Unlike all of their friends who were raised by paper parents, they learned about the world by computers and other digital media. They grew up with computers around them at all times. These children of protodigitals are the postdigital generation. Some of these second generation nerds are starting to graduate from law schools now. (Postscript – see eg Losey.law by the author’s son)

Born into an all electric world, with electric parents, they have never known paper blinders. They see the shadows for the printouts that they are. They grew up using new software programs and computer games. They have blinding speed on the keyboard. Many now have an innate mastery of all software. If it plugs in, or has a battery, they understand it. The Internet is their playground. The information explosion and non-stop technology changes are their friends.

matrix kid bends spoon with his mind

That is all they have known their entire lives. They do not read the newspaper. They do not particularly like paper, they like pixels. The postdigitals write with paper as a novelty, the way their parents first used a computer.

Electronic discovery comes easy and natural to these second generation digitals. The protodigital lawyers, protodigital judges, and technology clients are their friends. The future of the law is in the hands of these postdigitals. They will serve the needs of the technology companies and people of today and tomorrow.

The only question now is whether the new education that the rest of the profession needs will come quickly enough. If not, the vast majority of the legal profession may be stuck in their caves while the world passes them by. They need help now to get out and be able to compete with the second generation digitals.

If not, there is likely to be a sudden shift in fortunes unlike the profession has ever seen before. The law firm rankings are likely to change rapidly and permanently over the next ten years. Moreover, once the winds of change become obvious, law firms of the future will be forced to put the paper dinosaurs out to pasture well before their prime. That will be the only way they can survive, the only way to try to regain their standing. Early retirement may become mandatory, especially for trial lawyers, as they are no longer able to understand what is really going on. The information in dispute may simply be beyond their ken.

Clarence Darrow and William Jennings Bryan

The postdigitals are not tied by bonds of affection to the prisoners left behind in the same way that the protodigitals are. The postdigitals will carry the profession forward into the light of new technology and information, with or without the paper prisoners. The businesses and public that the profession serves will see to that. So too will the protodigital lawyers and judges.

Without a new kind of education, those still bound in the caves by paper chains may simply be left behind. Even if they want to get out, and I think many now do, they may be unable to. Even if they get out, they may be unable to function effectively. They may be overwhelmed by the volume and complexity of it all. No matter what their age, the paper bound lawyers may become irrelevant before their time. They may simply fade away along with the newspapers they love.

That would be a shame, for they still have much to offer the future of our system of justice. I suspect that such a radical discontinuity would not be healthy. But, it may be inevitable. One way or another, radical change will come because the law must keep up with the society it serves.


Fraud Is Bad

March 26, 2022

Everybody knows me as an e-Discovery lawyer, but I have other legal-loves, other areas of law I’m returning to now, especially the False Claims Act, aka QUI TAM Whistleblower law. I talked about that recently in Coming Out of the Closet to Share My True Resume. Now that I’m out of Big Law and free to practice in that area again (very few conflicts), I’m building out a new website on Qui Tam. Once a blogger always a blogger. I have a few pages up already, but work is ongoing. Check it out.  It can be reached by all of the following domain names, with Fraud Is Bad the lead. (Yes, I like domain names!)

FraudIsBad.com
FraudIsBad.org
CovidQuiTam.com
CovidQuiTam.law
CovidFalseClaimsAct.com

Please note the all-important Disclaimer Page on my new blog. There are very stringent ethics rules regarding attorney contacts with whistleblowers, primary among them the issue of conflicts. Oddly, I do not see that at other Qui Tam websites, but I am going to err on the side of caution. I am building out an ethical contact system now so all clients are fully protected. Plus, I have a lot more information to assemble and share with everyone. So please check it out and bookmark for later trips.


TO BE OR NOT TO BE?

March 9, 2022

Ukraine Has Decided. Have you?

Yesterday, a year 2000 law graduate from Kyiv National Economic University, Volodymyr Zelensky, gave another historic speech. This time is was a live speech, via Internet, to the House of Commons in London. Zelensky again showed his high skills in persuasion, oratory, technology and social media. The full text of his speech is shown below. (Please take a minute to read it.) Zelensky ingeniously weaved the thoughts of the pinnacles of British culture, of all English speaking cultures, Shakespeare and Churchill, into his call for action from Parliament.

In answer to Shakespeare’s famous question, Zelensky said:

The question for us now is to be or not to be. This is Shakespearean question. For 15 days, this question could have been asked. But now I can give you a definitive answer. It’s definitely yes, to be.

Zelensky went on to evoke and rephrase the famous words of Winston Churchill.

And I would like to remind you the words that the United Kingdom have already heard, which are important again – we will not give up and we will not lose. We will fight till the end at sea. In the air. We will continue fighting for our land whatever the cost. We will fight in the forests, in the fields, on the shores, in the streets.

Watching this man, Volodymyr Zelensky, is like watching a living profile in courage. For me, and perhaps others, it is truly humbling. The actions of Zelensky, and all the Ukrainian people, are inspiring. Our accomplishments in law and technology are nothing compared to their acts of courage. This year 2000 law graduate has my eternal respect. All Ukrainians now are shining examples of what we could be, should be, but are not.

Let us all now choose TO BE. To remain silent at this point, and just conduct business as usual, is to chose not to be. Let us all summon our courage to take action. What and how? I don’t really know. I am just an old lawyer from Floriduh. Still, that has never stopped me before and so this week I shared some personal thoughts on what we could do on Twitter and with a few friends. Greg Bufithis, an EU resident well known to many of you, responded with a terrific article, “Will Legalweek talk about the Ukraine War? Probably not.” I recommend you read it: https://www.gregorybufithis.com/2022/03/08/will-legalweek-talk-about-the-ukraine-war-probably-not/

As usual, I disagree somewhat with my friend Greg. For me, a hopeless idealist, where money has always been important, but secondary, I believe Legalweek will talk about Ukraine. I hope many, if not most, will take actions to support these brave people. I know everyone in ediscovery now is preoccupied with Legalweek. The talks, panels and pitches are fully prepared. But we are all smart creative people. We can pivot, improvise, explain how ediscovery matters. As Zelinsky has said

People don’t really believe in words. Or rather, people believe in words only for a stretch of time. Then they start to look for action.

It is not all about money and power, not for most of us. It is about justice and freedom; speaking truth to power. I will go to my grave with this belief. Again, hear the words of the world’s greatest Law School graduate of year 2000, perhaps of all time, who now constantly lives on the edge of his grave:

Let’s build a country of opportunities, where everybody is equal before the law and where the rules of the game are honest and transparent, and the same for everyone.

Amen Zelensky. Let us all

Choose To Be!


Transcript of Volodymyr Zelensky historic speech to British Parliament on March 8, 2022. Video and news report of the speech follows. Sorry that transcript of Zelensky’s last two paragraphs were omitted from my source. Will try to add later.


Mr. Speaker, all the members of Parliament, ladies and gentlemen, I am addressing all the people of the United Kingdom and all the people from the country with a big history.

I am addressing you as a citizen, as a president of also a big country with the dream and big effort. I would like to tell you about the 13 days of war. The war that we didn’t start and we didn’t want it. Well, we have to conduct this war.

We do not want to lose what we have, what is ours – our country Ukraine – just the same way as you once didn’t want to lose your country when Nazis started to fight your country and you had to fight for Britain.

13 days of this struggle. On day one at 4:00 in the morning, we were attacked by cruise missiles. Everybody woke up.

People, children, the entire of Ukraine. And since that, we have not been sleeping. We have all been fighting for our country with our army. On day two, we have been fighting air strikes and our heroic military servicemen on the the islands have been trying to fight when Russian forces demanded that we lay down the arms.

However, we needed to continue fighting and we did. We did feel our force, the force of our people that oppose the occupants and until the end. The next day, the artillery started fighting us. Our army showed us who we are and we have been able to see who our people and who are best known.

On day four we started taking people captive, we have not been torturing them.

We remained humane even on day four of this terrible war. On day five, the terror against us was going on against children, against the cities and constant shellings have been taking place around the country, including hospitals. And that didn’t break us, that gave us a feeling of truth. On day six, the Russian rockets fell on Babyn Yar.

That is the place where the Nazis killed thousands of people during the Second World War. And 80 years after the Russians hit at them for the second time, and even churches are getting destroyed by shelling.

On day eight, we have seen Russian tanks hitting the atomic power station and everybody has got to understand that this is a terror against everyone.

On day nine, there was a meeting of NATO’s conference without the result that we were looking for. Yes, we did feel that we did feel that. We did feel , unfortunately, that the alliances don’t work properly all the time and the no fly zone cannot be enforced. And on day ten, the Ukrainians started protesting and was stopping the armored vehicles with their own hands.

And on day 11, the children and cities were being hit and hospitals as well with the rockets and constant shelling and on that day we realized that Ukrainians became heroes. Entire cities – children and adults. And on day 12, the losses of a Russian army exceeded 10,000 people killed, including the general. That gave us hope that that there will be some kind of responsibility for those people of in front of the court.

On day 13 in the city of Mariupol that was attacked by the Russian forces, a child was killed. They do not allow any food and water and people started panicking. I think everybody can hear that people do not have water over there.

Over 13 days of this situation, over 50 children have been killed. These are the children that could have left. But these people have taken them away from us.

They do not condone Ukraine. We’re not looking to have this for the Ukraine, have not been looking to become big, but they have become big over the days of this war. We are the countries that are saving people despite having to fight the one of the biggest countries, one of the biggest armies in the world.

We have to fight the helicopters, rockets. The question for us now is to be or not to be. This is Shakespearean question. For 15 days, this question could have been asked. But now I can give you a definitive answer. It’s definitely yes, to be.

And I would like to remind you the words that the United Kingdom have already heard, which are important again – we will not give up and we will not lose. We will fight till the end at sea. In the air. We will continue fighting for our land whatever the cost. We will fight in the forests, in the fields, on the shores, in the streets.

I would like to add that we will fight on the banks of different rivers like Nepal.

We are looking for your help, for the help of the civilized countries. We are we are thankful for this help and I’m very grateful to you, Boris.



Here is one of many good news reports on the speech. Of course, no copyright is claimed to these reports. I share these historic tapes as a fair use.



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