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- Title
DOCUMENT REVIEW: YOU'RE DOING IT WRONG COGNITIVE PSYCHOLOGY AND THE ATTORNEY'S MENTAL PLATE.
- Authors
Keeling, Robert
- Abstract
The review of documents in response to discovery requests is more expensive, burdensome, and time-consuming than ever before. This is largely due to a drastic increase in the volume of electronically stored information. In larger cases, document sets contain hundreds of thousands (if not millions) of documents. A manual, "eyes-on" review is often required for many, if not all, of these documents. Many attorneys believe that they can make this manual review more efficient by reviewing each document only once. Reviewers are thus instructed to kill two birds with one stone by performing the multifaceted factual review of documents (i.e., identifying key factual evidence) alongside the typical privilege review and the production review (i.e., determining whether a document is responsive to a discovery request). This article challenges this common method of document review, arguing that it decreases review efficiency, and thus, increases cost of the review. First, studies show that production review may not be particularly accurate on its own. Research demonstrates that different reviewers may categorize the same document differently due to human error, fatigue, or subjective considerations. It is therefore inadvisable to distract reviewers examining a document for responsiveness by having them complete additional complex tasks such as reviewing for key factual evidence. Second, combining the factual, privilege, and production reviews subjects the reviewing attorneys to cognitive limitations. Applying principles from studies in cognitive psychology to the document review context makes clear that the common approach to document review is often flawed. These studies show that overloading an attorney's working memory by asking the attorney to simultaneously complete a series of complicated tasks negatively impacts the efficacy and quality of a document review. This may lead directly to an increase in the client's document review costs. This article proposes a solution for attorneys looking to address the issues that come with inefficient review: splitting document review into distinct phases. By doing this, attorneys can alleviate some of the cognitive burdens unique to document review that attorneys face. This, in turn, reduces both the frequency of attorney error and the cost of the review. Splitting the review also carries certain benefits beyond those gained from lessening the burden on reviewing attorneys. Reviewing a document for responsiveness is a binary decision that can be made quickly. In making this decision, the attorney is exposed to, and gains familiarity with, the documents in a short time. This familiarity with the documents leaves the attorney better equipped to tackle the more challenging effort to identify key evidence.
- Subjects
COGNITIVE psychology; COGNITIVE ability; HUMAN error
- Publication
University of Arkansas at Little Rock Law Review, 2020, Vol 42, Issue 2, p257
- ISSN
1527-5787
- Publication type
Article