How NOT to Do a Document Review
Lessons for lawyers and investigators from Janice Hallett's epistolary mystery The Appeal
In the excellent documentary Turn Every Page: The Adventures of Robert Caro and Robert Gottlieb, Robert Caro talks about how he was trained to do just that as an investigative reporter – “turn every page.” His books are masterpieces, but they have taken years and years to research and write.
Most of us don’t have that kind of time, and we need to make choices about how to investigate more efficiently. Document review is fundamental to a successful investigation or case, but many attorneys do not get any real training in how to approach document review and view it as something to just get through. In my years as a lawyer and reporter, I’ve found that document review really does involve strategy and analysis that often gets underappreciated.
In that regard, I’d like to talk about Janice Hallett’s The Appeal, a book that tells a murder mystery in an unusual way – it’s an epistolary novel composed mostly of emails and text messages. Two trainees in a British law firm are given emails and communications by a senior lawyer and are told to review them. They read about a local theater group, a fundraising effort on behalf of a young girl with cancer, and eventually a murder.
The book is fun, but I see it as a cautionary tale about how NOT to review documents.
First, the senior lawyer provides no context for the document review and deliberately keeps key information from the trainees. The senior lawyer does not even tell the lawyers who the client is or what the case is about. “It is best you know nothing before you read the enclosed,” he tells the trainees.
This is terrible advice for most people conducting investigations. If you’re a reporter, your job may be to find the truth or discover the story. But if you’re a lawyer or investigator, your job is different. Your job is to determine what happened to see if you can prove your client’s case. This mostly lines up with finding the truth, but it is more focused. You’re not there to go down rabbit holes or pursue shining objects that seem interesting but add nothing to the case. What are you trying to prove or disprove? How does your inquiry aid that mission? You need to know that if you’re going to review documents effectively (or at least on a budget).
Second, the senior lawyer provides no chronology, provides no hot documents, and identifies no key moments. The trainees read the documents in chronological order but spend much time and energy reviewing documents that have nothing to do with the key event that matters, which is the murder that they are trying to investigate.
In real life, you should identify key events and documents early in an investigation and focus on them. You should develop a chronology to keep events in order and to identify events that might warrant further investigation. In a murder case, start with the murder. In a fraud case, look for when cracks emerged in the fraud or what happened when the fraud collapsed.
Third, the trainees read everything they were given in chronological order. This is nice if you have unlimited time and resources, but those of us in the real world should use searches for key terms or concepts. Think about how the people writing the documents actually would have written and communicated, and look for terms that they might have used (rather than terms that would be convenient for you). For one thing, I often look for curse words – if someone is using them, there’s probably something interesting going on!
Fourth, the senior lawyer provides no information on how documents were collected. This is often overlooked, but you should keep in mind how you get documents and whether this affects what you know. A good document review depends on a good document collection. If there are holes in a document collection, the review can be a waste of time and even counterproductive. Look for gaps in the collection, incomplete strings, and signs of selective production.
In the book, the document collection makes no sense. The lawyer and trainees somehow have access to some personal, private emails but not to others, and they do not suspect that they might be manipulated. In real life, I would wonder how the senior lawyer got these particular documents and whether the senior lawyer was complicit somehow.
Now, let’s turn this around and think about how a good document review might have been done in this case. Major spoilers below.
The senior lawyer’s job in this case is to represent Isabel Beck, who confessed to being responsible for the death of Samantha Greenwood, pled guilty, and was sentenced to life imprisonment. After the conviction, the senior lawyer was somehow able to get documents and correspondence that were not available before and wants to show that Isabel is not actually responsible for the murder.
(By the way, the senior lawyer is incompetent and/or unethical – he later reveals that he talked the client into pleading guilty to a crime that she did not commit, which is why he takes the case so personally. In the United States, he should recuse himself and turn it over to another lawyer who could argue that the senior lawyer provided ineffective assistance of counsel.)
First, start with the client and the case. Why did she confess to a murder she did not commit? What really happened the night of the murder? What is the lawyer trying to accomplish for her? Interviewing the client should be the starting point for the investigation and for the review of documents. Figure out what you really need to know and what you need to show. Look at the jury instructions or caselaw to know what you ultimately need to prove or show. Start making a chronology to organize events and facts.
Second, understand what documents you have and think about what other documents you would like to have. Go out and get other documents that might exist – ask for emails and text messages. Request the government’s case file and check public records. Fill in holes in the collection.
Third, read every communication immediately before and after the murder. The mission is not to follow every possible lead but to find anything that would corroborate the client’s version of events or counter the government’s version. Significant details that otherwise might be meaningless may emerge when you are focused on the key event.
Fourth, run searches on Isabel’s emails and other documents to find things that might help the case. Look for anything involving the person whom she tried to protect by falsely confessing. Again, look for things that might corroborate her or counter the government’s narrative. Code or tag documents by subject matter so that you can review all documents on a particular topic in chronological order down the road.
Fifth, repeat and revisit. Document reviews take time and evolve. Documents that seem irrelevant at first may become relevant later as you develop new evidence and identify new key events.
Reviewing documents is not simply about clicking through them. You should always be thinking about how and whether documents might help with the overall case. Does this help make your ultimate point? Does this corroborate your client and witnesses? Does it undercut the other side’s witnesses? Are there other documents out there that might help?
Hope this helps!
About the Author: I was a federal prosecutor in Chicago from 2008 to 2019 and have been in private practice since 2019, now as a solo practitioner focusing on health care fraud, white-collar criminal cases, and data analytics. Before becoming a lawyer, I was a reporter for the Chicago Tribune and also worked for other news organizations, including the Associated Press and the Dallas Morning News.