Duty of Due care – Duty of Loyalty – Preserve trust property
Commingling – Personal Performance – Legal defense
When you’re studying for the California bar exam and you need to remember about 2,000 pages of law (give or take – when I took the exam in 2007, they’d added California Civil Procedure and Evidence to the federal, modern and common-law rules, as well as Agency & Partnership to Corporations) you create mnemonic after mnemonic; anything that’ll spur instant – and hopefully, total – recall so you can quickly apply the elements (which in the example above, are trustee duties & obligations).
[Just be grateful I didn’t provide my mnemonic for exceptions to a search warrant! Actually, now that I think of it, maybe some of my readers are law students…I should link to all of my self-made study guides one of these days…]
Anyway, this post is about memory and its primary importance to what we do. My thoughts on the subject were piqued when I happened to see an interview with the author of “Moonwalking with Einstein – The Art and Science of Remembering Everything”, and I remembered all of the effort that went into memorizing all of that material.
One of the deposition ‘tricks’ that some attorneys employ is to ask the same question over and over, hoping to receive conflicting answers – which may then be used at trial to impeach a witness (of course, an attorney with excellent memory will be tracking this and should be jumping in with “Objection: Asked and Answered.”, to avoid this pitfall, but when a depo stretches out over several days or weeks…).
In our realm, the central theme we return to over & over is the sheer volume of data involved, sometimes millions upon millions of pages. Technology may be able to keep track of the contents of all of that data for the purposes of comparison for search, concept search or even the newest kid on the block, predictive coding, but what it can’t do is remember the way we humans do it.
In other words, the technology may be able to sniff out a documents’ relevance to another document, but it can’t understand the relevance of the relevance. Does this make sense? What I’m saying is, technology understands like-kind information and its relationship to other like-kind information, but only a human can go the next step – understanding why the item is relevant to the issue at hand over and above the pattern the technology recognizes.
Think about – in our new eDiscovery age – the amount of memory it takes to read – and truly comprehend – documents, many times on a subject you have no experience with, then apply them over a case that may go on for years, then be reading a new document or hearing new testimony and suddenly think, “I recall seeing contradictory information in a document I read a year ago…now where did I file that sucker?!”
Take that, Watson!!!