Litigation typically erupts from disagreements. Various disagreements can lead to emotional exchanges that often show up in electronically stored information (ESI), including email, chat and text communications. When emotions are high, many people’s guards can drop, and communication can become more passionate. Through this work, we’ve learned that when emotions are high, people’s guards come down and they communicate more passionately. Smart attorneys who use this awareness to devise lists of terms to help prioritize review and pinpoint potentially significant documents in order to more efficiently identify the most compelling evidence for their cases.
For example, my consulting team developed a list of provocative terms for eDiscovery document review, that included “damn” and “what the hell,” and that can indicate high emotion — often anger. Terms such as “kiss,” in professional emails might be worth a closer look as they may indicate an inappropriate relationship.
Recently, we engaged Ricoh's Managed Review Services to assist a client with a legal malpractice matter. We used our provocative terms list and also worked with the client to formulate their own list of relevant search terms. That process uncovered emails that revealed a pattern of disparaging remarks and infighting at the law firm that, ultimately, led to poor work and over-billing. This creative analysis helped the plaintiff win a large settlement quickly.