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Increasingly demanding clients and increased caseloads, coupled with the rigors of everyday office responsibilities, can tax even the most-experienced and most-organized law firms and their litigators. But there is a solution that will relieve some of the burden of evidence management and assessment. The answer to the time crunch is the case analyst. The analysis of information has long been recognized as an integral component of decision making by government, military, and law enforcement agencies. Over the past 20 years, criminal prosecutors have used law enforcement case management experts in criminal and intelligence analysis to better understand, prepare, and present complex organized-crime cases. More recently, private law firms are discovering the value these experts can add to large and difficult cases. But what does a case analyst do? The case analyst is involved in the litigation process from the early stages of evidence collection and collation, through evaluation and interpretation, to the presentation of the case in court. FOUR FEATURES There are four features of case evidence that a litigator must assess in order to create a strategy for success: its limitations, its intended use, its capability to be effective, and how it may be vulnerable. Case analysts provide insight into these areas, allowing the attorneys to focus on their case strategies. The attorneys can then plan the litigation based on a well-organized, thorough report of the evidence rather than on a pile of disorganized documents. As this service is relatively new to most litigators, a common misconception is that a case analyst performs the same functions as an investigator or paralegal. Of course, there are some similarities. The investigator’s expertise lies in the ability to collect information and evidence at the direction of the client through a variety of techniques. But at the same time, the investigator’s findings may form only a small piece of the overall evidence. In addition, the paralegal performs an integral role within the law firm by providing firsthand support with such tasks as collating evidence, conducting legal research, and preparing legal correspondence. Once the evidence is collected and organized, someone must handle the important jobs of evaluating and interpreting the evidence. The ability to perform an intricate examination of the case evidence and then present those findings to the attorney and the courts is the strength of the case analyst. Complex cases are normally burdened with massive amounts of documentary evidence. This evidence may include various types of correspondence, transcripts, and statements, as well as business and financial documents. The organization or collation of the case evidence is a tedious but critical function, using various databases. For collation to be truly effective, however, the activity requires that each piece of evidence be identified and evaluated. The first part of this process, known as objective coding, is the foundation of the process. Each document is identified as to its type, source, date, location, and author. The objective coding is normally done by a clerk or paralegal. Once this task is complete, the second and most important part of the process, subjective coding, can occur. Individual pieces of evidence are now examined to find themes, patterns, and commonality. Key words and phrases are identified to allow for the retrieval of groups of important documents with similar significance. This critical task would normally be handled in some fashion by the attorneys as they worked through the early development of their case. However, this process always forms part of the initial examination of evidence by a case analyst and can increase the value of the information in the database for the attorney. INDEPENDENCE Two other significant elements separate a case analyst expert from a paralegal. The first is the ability to be totally independent. Performing her work separate from, but in conjunction with, the client ensures that the case analyst will assess every detail of the evidence and return honest and objective findings. The results will illuminate not only the strengths of the evidence but also any weaknesses or gaps. The second key element is the analyst’s ability to emphasize important points of evidence and depict them graphically using a variety of charting techniques. Complex evidentiary issues relating to time, association, process, and commodity flow can be displayed individually or comparatively. These effective presentation tools allow the case analyst to provide expert testimony that simplifies and clarifies the issues for the court. Some of the benefits that have come from using case analysis experts can be seen in the following real examples. The first involved a case of sexual harassment against a national chain of restaurants. A case analyst was asked to review the evidence, which included the alleged victim’s statement. The analyst’s findings identified inconsistencies in the evidence and points of deception in the victim’s statement. The defendant’s attorney used the analyst’s findings to force the alleged victim to ultimately admit that her complaint was baseless. The cost was minimal, a long litigation process was averted, and the client’s reputation was preserved. In the second example, civil litigation lawyers successfully used the expertise of case analysts in representing two defendants in a civil trial resulting from the murder of nine miners during a bitter labor dispute. In an initial examination, the case analysts discovered that the plaintiffs had not received a large amount of important evidence from the investigating police agency. The analysts helped to obtain the missing evidence. With all the relevant evidence in hand, every element of the police investigation leading up to the murders was examined to determine the type, frequency, and location of the strike-related activity, as well as the people involved. The data were then compared to the responses of the mine company and their security contractor as to the level of security they provided to protect the mine site and the nonstriking workers. The analysts’ final report refuted many of the details of the plaintiff’s case and supported the defendants’ argument that they had acted in a reasonable and responsible manner during the strike. Case analysts clearly understand the importance of today’s privacy concerns and of maintaining client confidentiality and trust. Working with information that is considered highly sensitive and that forms a large part of the clients’ commitment to their own customers demands the highest standards of ethical conduct. This allows the analyst to work offsite in most cases and not interfere with the firm’s daily routine. Technology has made it relatively simple and secure to exchange documentary evidence electronically. But when the documentation is excessive or its evidentiary value an issue, analysts will work on site. We predict that the case analyst will quickly become a valuable tool for attorneys dealing with complex and difficult litigations in the next few years. Jacquie MacDonald and Bob Powers are case analysts. MacDonald (ja[email protected]) lives in Tampa, Fla., and is an associate with Welch and Welch Investigations. Powers ([email protected]) is a partner with the firm Insight Analysis in Edmonton, Alberta, Canada.

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