Alex Jones’ Accidental Text Dump Is Hilarious—and Alarming

when word got out that Alex Jones’s lawyer had done some royal, cartoony, impressive bed shit, sending a copy of his phone and two years of text messages to Sandy Hook families begging him, he put smiles on many faces. What better fate than to watch the professional bloviator and conspiracy theorist use his own words against him, hoisted on his self-incriminating firecracker? But many American lawyers were simultaneously swept away by a wave of nausea and the visceral realization that this—perhaps not such a big, crazy mistake, but something like it—could have happened all too easily to their clients.

We think of the legal system in terms of trials and testimonies, but this is completely wrong. Ninety-nine percent of federal civil cases are settled long before a single witness is called, either dismissed under increasingly stringent standards for filing lawsuits in the United States or as a result of a settlement. Instead, for litigants, the courtroom has been replaced by eDiscovery, the sometimes years-long process of sifting through mountains of records to see what can be proven. While we still don’t know exactly how Jones’ lawyers screwed the dog so badly, it likely happened on eDiscovery. And this silliness underscores the dire need for alternative discovery models.

As a young lawyer, like many other associates, I spend hours pouring over countless lists of documents from my clients. If the documents are responsive (fit the criteria set by the other side), click a button. If they are irrelevant, click another one. And if they are privileged, like when a lawyer writes to a client, press a third party. You try to be diligent, never make mistakes, but when you look at thousands of different documents every day, you make mistakes.

Derailments are so common that there is even a special federal rule for it. In recent years, everyone from Apple to Facebook to federal agencies have been embroiled in high-stakes discovery disputes. When a document is accidentally handed over, you can ask for it back and the other party has to pretend they never saw it. But crap on the scale of Alex Jones’s lawyers is something else. The memes about the astonishing ineptitude of his lawyers are fully justified. It’s one thing to deliver a text message that should have been withheld; it’s another thing to deliver two years’ worth. And when lawyers get hurt, they only have a limited window to fix the mistake. With Jones, the messages are so damning that it’s unclear if they were ever legally protected to begin with, because no matter what you see on TV, lawyers can’t help clients lie or commit crimes. If a lawyer sends an email where they are giving advice to a client, they can often get it back, but when the email shows that the client is committing a crime, such as perjury, that’s a different matter.

eDiscovery often makes or breaks a case. Find the self-incriminating needle in the haystack, and most defendants will settle on the spot, knowing they will likely have no chance of standing trial. But when plaintiffs can’t find the killer’s documents, increasingly stringent state and federal rules make it harder to get their day in court. Before any trial, plaintiffs must survive a motion for summary judgment, showing that they have evidence for each element of their claim. And unlike a trial, it’s the judge, not the jury, who decides whether your case is good enough.

This has implications far beyond Alex Jones and Sandy Hook, and goes to the core of what our civil justice system is like. If we continue down this path, focusing more time and money on increasingly protracted legal battles over documents, our legal system will become even more about money and less about justice. According to the Duke Law Journal, eDiscovery can account for up to half of litigation budgets. And as people spend more of their lives online, the problem will only accelerate. Technologies like virtual reality, augmented reality and even self-driving cars will capture terabytes of data about every moment. The more our lives are recorded, the more it can be used against us in court by anyone who complains. And if sifting through millions of text messages and emails is already a burden, how will lawyers properly vet years of audio and video recordings of real and simulated settings?

Source link

Leave a Comment