Peer to Peer Magazine

61 WWW.ILTANET.ORG Being Mindful of Your P's and Q's in E-Discovery FEATURES Judge Jeremy D. Fogel of the Federal Judicial Center wrote an eye-opening publication in 2016 called "Mindfulness and Judging" that points out that judges need to notice what is occurring in the moment to be more conscious of their reactions to others, and "to choose an appropriate response rather than ignoring the reactions or losing control." Judges can miss the mark, and they know this when a case is suddenly overwhelmed by emotion or when there is inexplicable mental doubt that justice was achieved. If judges miss the mark, then so do litigation support and e-discovery professionals. We have to recognize when this happens and learn how to mitigate the stinging repercussions of not being mindful of our p's and q's. Why We Miss the Mark Everyone faces unconscious psychological, social or cultural factors that will negatively influence decision- making. Litigation support staff and e-discovery project managers are continuously overloaded with repetitive tasks that become routine and receive less focus than other work. We respond to cues and shortcuts we have relied upon in the past and find no reason to worry if a similar task will have unintended consequences today. We have been beset by extreme personality shis caused by anger, frustration or fatigue (who hasn't worked an 80-hour week in the past three months?). We rely on intuition, paern, rules of thumb and social cues. We are not reflecting or thinking consciously about what we are experiencing right now. That's when most of us miss our mark. Even Nobel Prize-winning economist Daniel Kahneman has spoken extensively about intuition ("System 1 thinking") versus reflection ("System 2 thinking") in his 2013 bestseller "Thinking, Fast and Slow." According to Kahneman, we engage in System 1 thinking when we perform routine tasks or when the act of reflection is blocked by stress (think of processing e-discovery data or completing a last-minute production). But intuition is great, right? It helps us be efficient. Yes; however, intuition can make your decisions less accurate because of implicit or explicit bias or mistaken assumptions. We need to engage more in System 2 thinking where we notice or question our intuition. How To Hit Our Target Litigation support and e-discovery is rife with mindfulness enthusiasts. You would assume most judges automatically adopt a System 2 thinking style and are trained to do so, but as Fogel states: "A judge's decisions frequently are made in and affect an atmosphere infused with passions that can confound the detached rationality with which decisions — at least in theory — are supposed to be made." Educators have tried to develop classes to help judges perfect their System 2 thinking skills while managing the stress of their caseloads, but you cannot teach judges (or any of us) to deal with every unconscious psychological or social factor that influences our decisions and actions. Dale Carnegie Training might help us give beer speeches and lead meetings, but can it easily supply the one skill we are taught to possess but almost never use: empathy? Judges decide beer if they understand a situation from another person's perspective, and litigation support staff and project managers are no different. Your Personal E-Discovery Mindfulness Toolkit Let's build a personal toolkit of mindfulness that all litigation support and e-discovery professionals can use on a daily basis. Our goal is to be practical and relevant to improve our daily processes and tasks. Start by thinking about the general mistakes made by most people in the e-discovery industry. Discovia provided a list in the article, "Top Five eDiscovery Mistakes and How to Avoid Them," which included: Failure To Prepare: A lack of preparation affects workflows, timelines and scope of discovery. People are not asking critical questions like how to cast the widest net in searching for electronically stored information (ESI). Imagine all the System 1 thinking based on intuition and rules of thumb involved here. It's easy to copy established practices and procedures without being mindful of the affect even the smallest decisions can have on your case. 1 EVAN BENJAMIN Evan Benjamin is a Computer Forensic Examiner, SQL DBA and CEDS Certified Relativity Administrator who currently works at Nelson Mullins Encompass in Columbia, South Carolina. He has been in the forensic and e-discovery industry for eight years in various states. Evan has earned Six Sigma Green Belt and ITIL certifications, contributed to the ACEDS Exam Prep Manual, and helped create and review items for the CEDS exam. He also contributed to the development of the EDRM Maturity Model and loves to discuss emerging legal technology topics. Contact Evan at evan.benjamin@nelsonmullins.com. It's easy to copy established practices and procedures without being mindful of the affect even the smallest decisions can have on your case.

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