Practice Tip <B>High-Tech Head Starts on Big Cases: Using Advanced Database Tools</b>

High-tech tools ' such as auto-coding, linguistic pattern matching and Web-based collaboration ' enable lawyers and their fact experts to take charge of large cases right from the opening days of discovery. Construction disputes are among the document-intensive cases where these new tools are being used to change the dynamics of the dispute-resolution process. As a specialist in providing expert testimony in these disputes, I've learned that these new tools permit quick and cost-effective ways to learn and research the facts of a case from among the hundreds of boxes of documents.

The dynamics of construction dispute resolution are profoundly affected by the quality of the experts' reports. Solid, well-documented expert reports lay out the nature of the claims and show, by reference to specific business records, that those claims are bona fide and can be proven. Expert reports that are so thoroughly prepared that they effectively conclude the matter, which can save the corporate client considerable legal and expert fees and costs ' to say nothing of saving the time and focus of its key operating personnel who would otherwise be involved in the litigation.

Our damages, schedule, change order and issue analyses are fully developed through our use of electronic databases, which provides my team with access to all of the relevant documentation. Because traditional methods of developing databases are time-consuming and expensive, experts for opposing parties may have to prepare reports based primarily on their general experience, without full knowledge of what the documents actually reveal about the problems caused by their client's actions and inactions. I am able to testify based on experience and confidently report the detailed evidence found in the documents.

The Construction Claims Process

Thousands of documents are generated during the design, procurement and construction phases of large construction projects. The overall schedule can encompass more than 2000-3000 activities that must take place on time and in a logical, well-managed sequence. However, the actual timing of the work is almost always different from the plan. Reasons for the differences are buried in thousands of documents, and piecing the facts together requires in-depth analysis of drawings, specifications, purchase orders, material receiving reports, change orders, contracts, schedules, cost reports, letters, memos, emails, photographs, timecards, daily construction reports and on-site notes and logs.

Contractor's claims usually seek time extensions to avoid liquidated damages and recovery of increased costs for unapproved change orders, delay and impact/loss of productivity costs. Counterclaims by owners usually assert that costs were too high for reasons that are the contractor's fault, or that the finished project does not function as designed.

A construction litigation expert's job is to analyze the facts contained in the project documentation, allocate responsibility for performance problems, schedule delays, and cost overruns, and write an expert report that will document the story of the project by reference to supporting documentation. When construction claims go all the way to trial, the actual number of exhibits used by an attorney may only number approximately 50 to a 100 out of an original document population of hundreds of thousands of pages, but an expert report may reference a thousand documents or more.

New Database Techniques

To be able to review and analyze the documents relating to a construction claim, I use document images linked to a database that has coded fields as well as full-text search capability. I have the data loaded on Web-based tools so that my geographically dispersed team, as well as the lawyers and client personnel working on the case, can access updated case data at the same time over secure connections.

Since judges and arbitration panels often set deadlines for expert reports or briefs that are only 5 or 6 months from when the litigation or arbitration begins, it is critical that work with the documents begins as soon as possible after scanning to have time for a thorough analysis. Traditional manual document coding can easily consume 2 or 3 months of that valuable time. For example, if a judge or an arbitration panel enters an order in mid-November that the expert reports are due in early March, a traditional database might not be available for review until January. I have discovered that using an automated method of database creation allows me to start working with the data much earlier ' in this example, as early as late November ' which can be a tremendous advantage.

To enable the maximum time actually working with the documents, I use two advanced database tools:

• Auto-coding. To get a useful, functioning database in the least time, I use an auto-coding service to create fielded database entries for things like document type, dates, names, subject line, Bates number, letter number, title, etc. The service performs optical character recognition (OCR) on the scanned documents, creates the fielded data using auto-coding, and loads the resulting OCR text, fielded data and image pointers into a database used by my team. The whole process takes less than a week from the conclusion of scanning, giving me up to a 2-month head start on the process of whittling the documents down to the most significant. It also eliminates the expensive and time-consuming manual coding of the objective data for many of the documents.
• Linguistic Pattern Matching. While the documents are being auto-coded, linguistic pattern-matching databases of the documents are prepared to enable the use of linguistic patterns when searching for documents. For example, linguistic pattern matching can locate documents related to delayed performance, deliveries, or completion of work, even if the documents do not contain the word “delay.” When I find a document that is particularly relevant or significant on a particular issue, I use it as a source for a linguistic pattern-matching search to find other documents with similar linguistic patterns. The results are ranked by reliability or confidence percentages, with closest matches listed first.

Searching by linguistic patterns saves a significant amount of time by finding documents quickly. It lets the searcher immediately focus on the most relevant results, compared to a traditional full-text search for a key word or phrase ' such as delay, acceleration, change, defect, impact, etc. ' that might find a thousand documents that would then have to be reviewed for relevance, resulting in only a few that are on point. In addition, other search methods dependent on finding single keywords could result in irrelevant documents if OCR errors occurred. In contrast, searching by linguistic pattern matching easily brings the most responsive documents to the top and is also virtually unaffected by OCR errors in the documents.

Real-time Access

Using laptop computers with high-speed Internet access during the trial or arbitration while the attorneys are cross examining the other side's fact or expert witnesses, experts can quickly support counsel by refuting or disproving testimony. By simply formulating what the document would look like that could refute the contention, I am able to use linguistic pattern matching searches to quickly locate those documents during the proceedings. That is very powerful in destroying the credibility of opposing testimony.

Cost Justification

Auto-coding and linguistic pattern matching databases cost less than half of normal manual coding. However, while the reduced database creation costs are extremely important, the biggest benefit is gaining the time to do as thorough a job as possible. The months gained by not having to wait for a manually-coded database to be created and delivered frees up more valuable time to perform thorough cost and schedule analyses and write a well-supported expert report in order to settle the claim as early as possible. The “cost” to the client to not resolve the claim early in the dispute resolution continuum also includes the legal and expert costs for the full arbitration or trial process, and document management costs are just a small part of those costs. In other words, the most important economic factor is the ability to maximize the chances of getting an early, favorable result without all the costs associated with a protracted dispute. Again, time is money, and auto-coding and linguistic pattern searching capabilities can be ready in less than a week.

High-tech tools ' such as auto-coding, linguistic pattern matching and Web-based collaboration ' enable lawyers and their fact experts to take charge of large cases right from the opening days of discovery. Construction disputes are among the document-intensive cases where these new tools are being used to change the dynamics of the dispute-resolution process. As a specialist in providing expert testimony in these disputes, I've learned that these new tools permit quick and cost-effective ways to learn and research the facts of a case from among the hundreds of boxes of documents.

The dynamics of construction dispute resolution are profoundly affected by the quality of the experts' reports. Solid, well-documented expert reports lay out the nature of the claims and show, by reference to specific business records, that those claims are bona fide and can be proven. Expert reports that are so thoroughly prepared that they effectively conclude the matter, which can save the corporate client considerable legal and expert fees and costs ' to say nothing of saving the time and focus of its key operating personnel who would otherwise be involved in the litigation.

Our damages, schedule, change order and issue analyses are fully developed through our use of electronic databases, which provides my team with access to all of the relevant documentation. Because traditional methods of developing databases are time-consuming and expensive, experts for opposing parties may have to prepare reports based primarily on their general experience, without full knowledge of what the documents actually reveal about the problems caused by their client's actions and inactions. I am able to testify based on experience and confidently report the detailed evidence found in the documents.

The Construction Claims Process

Thousands of documents are generated during the design, procurement and construction phases of large construction projects. The overall schedule can encompass more than 2000-3000 activities that must take place on time and in a logical, well-managed sequence. However, the actual timing of the work is almost always different from the plan. Reasons for the differences are buried in thousands of documents, and piecing the facts together requires in-depth analysis of drawings, specifications, purchase orders, material receiving reports, change orders, contracts, schedules, cost reports, letters, memos, emails, photographs, timecards, daily construction reports and on-site notes and logs.

Contractor's claims usually seek time extensions to avoid liquidated damages and recovery of increased costs for unapproved change orders, delay and impact/loss of productivity costs. Counterclaims by owners usually assert that costs were too high for reasons that are the contractor's fault, or that the finished project does not function as designed.

A construction litigation expert's job is to analyze the facts contained in the project documentation, allocate responsibility for performance problems, schedule delays, and cost overruns, and write an expert report that will document the story of the project by reference to supporting documentation. When construction claims go all the way to trial, the actual number of exhibits used by an attorney may only number approximately 50 to a 100 out of an original document population of hundreds of thousands of pages, but an expert report may reference a thousand documents or more.

New Database Techniques

To be able to review and analyze the documents relating to a construction claim, I use document images linked to a database that has coded fields as well as full-text search capability. I have the data loaded on Web-based tools so that my geographically dispersed team, as well as the lawyers and client personnel working on the case, can access updated case data at the same time over secure connections.

Since judges and arbitration panels often set deadlines for expert reports or briefs that are only 5 or 6 months from when the litigation or arbitration begins, it is critical that work with the documents begins as soon as possible after scanning to have time for a thorough analysis. Traditional manual document coding can easily consume 2 or 3 months of that valuable time. For example, if a judge or an arbitration panel enters an order in mid-November that the expert reports are due in early March, a traditional database might not be available for review until January. I have discovered that using an automated method of database creation allows me to start working with the data much earlier ' in this example, as early as late November ' which can be a tremendous advantage.

To enable the maximum time actually working with the documents, I use two advanced database tools:

• Auto-coding. To get a useful, functioning database in the least time, I use an auto-coding service to create fielded database entries for things like document type, dates, names, subject line, Bates number, letter number, title, etc. The service performs optical character recognition (OCR) on the scanned documents, creates the fielded data using auto-coding, and loads the resulting OCR text, fielded data and image pointers into a database used by my team. The whole process takes less than a week from the conclusion of scanning, giving me up to a 2-month head start on the process of whittling the documents down to the most significant. It also eliminates the expensive and time-consuming manual coding of the objective data for many of the documents.
• Linguistic Pattern Matching. While the documents are being auto-coded, linguistic pattern-matching databases of the documents are prepared to enable the use of linguistic patterns when searching for documents. For example, linguistic pattern matching can locate documents related to delayed performance, deliveries, or completion of work, even if the documents do not contain the word “delay.” When I find a document that is particularly relevant or significant on a particular issue, I use it as a source for a linguistic pattern-matching search to find other documents with similar linguistic patterns. The results are ranked by reliability or confidence percentages, with closest matches listed first.

Searching by linguistic patterns saves a significant amount of time by finding documents quickly. It lets the searcher immediately focus on the most relevant results, compared to a traditional full-text search for a key word or phrase ' such as delay, acceleration, change, defect, impact, etc. ' that might find a thousand documents that would then have to be reviewed for relevance, resulting in only a few that are on point. In addition, other search methods dependent on finding single keywords could result in irrelevant documents if OCR errors occurred. In contrast, searching by linguistic pattern matching easily brings the most responsive documents to the top and is also virtually unaffected by OCR errors in the documents.

Real-time Access

Using laptop computers with high-speed Internet access during the trial or arbitration while the attorneys are cross examining the other side's fact or expert witnesses, experts can quickly support counsel by refuting or disproving testimony. By simply formulating what the document would look like that could refute the contention, I am able to use linguistic pattern matching searches to quickly locate those documents during the proceedings. That is very powerful in destroying the credibility of opposing testimony.

Cost Justification

Auto-coding and linguistic pattern matching databases cost less than half of normal manual coding. However, while the reduced database creation costs are extremely important, the biggest benefit is gaining the time to do as thorough a job as possible. The months gained by not having to wait for a manually-coded database to be created and delivered frees up more valuable time to perform thorough cost and schedule analyses and write a well-supported expert report in order to settle the claim as early as possible. The “cost” to the client to not resolve the claim early in the dispute resolution continuum also includes the legal and expert costs for the full arbitration or trial process, and document management costs are just a small part of those costs. In other words, the most important economic factor is the ability to maximize the chances of getting an early, favorable result without all the costs associated with a protracted dispute. Again, time is money, and auto-coding and linguistic pattern searching capabilities can be ready in less than a week.