Fears and Loathing (and Pain) in Seattle: a Case Lesson in How NOT to Implement a Litigation Hold and Search for Email – Part Two

April 20, 2014

Ralph_Fear_Loathing_VegasThis is part two of a two-part blog, Fears and Loathing (and Pain) in Seattle. Part one is found here. This is not really a Hunter S. Thompson worthy story, but it is Seattle after all. And the name of the law firm involved here just begs for the analogy.

Before you begin reading part two of this sanctions saga, take a look at the poll results from Part One. If you have not already done so, cast your vote. I promise you it is all anonymous. The last time I checked it was about evenly split on both questions, but not enough readers have voted. So, please join in now.

Seattle Court’s Finding of Bad Faith

Seattle-skylineJudge Robart in Knickerbocker v Corinthian Colleges found that there was clear and convincing evidence the defendant, and their counsel, the Seattle law firm of Payne & Fears, had refused to participate forthrightly in the discovery process and that this refusal constitutes or is tantamount to bad faith. He found that they had delayed resolution of Plaintiffs’ claims, expended both the court’s and Plaintiffs’ limited resources on matters ancillary to the merits, and threatened to interfere with the rightful decision of this case.

Judge Robart did not think too much of defendants argument against all sanctions because the email was eventually found and produced. Here is his well written response to this argument (citations removed and emphasis added):

Corinthian argues that, at least with respect to emails, no spoliation has occurred because Corinthian has since recovered and produced all responsive employee emails from the backup tapes. The court notes that this argument contravenes what appears to have been Corinthian’s previous position that the backup tapes were not reasonably accessible. Corinthian’s characterization of the backup tapes has shifted with the winds throughout this litigation, adopting whatever posture is most convenient in the immediate context. (Compare Ruiz Decl. ¶ 17 (“I explained that it was unreasonable and impractical to search them . . . .”) with 12/12/13 Trans. (“It would be perfect. It would be one day, $1,000.”) (Mr. Brown testifying).)

Corinthian cannot have it both ways. If the information on the backup tapes was unavailable within the meaning of Federal Rule of Civil Procedure 26(b)(2)(B) such that Corinthian was not required to recover it, then the Plaintiffs’ deleted emails were, in fact, spoliated evidence. If, as Corinthian’s counsel represented at oral argument, the information on the backup tapes was accessible, then Corinthian had little basis for refusing to search the backup tapes under the parties’ Stipulated Order, no basis for filing a verification with the court affirming that it had searched “all available electronic sources”, and appears to have assumed a misleading stance with Plaintiffs from the beginning.

Corinthian counters that it encountered substantial technical difficulties and costs in retrieving the emails from the backup tapes. But any obstacles Corinthian faced in recovering the emails were the direct result of Corinthian’s inadequate discovery search, deletion of evidence, and lack of candor with both Plaintiffs and with the court. Such obstacles do not transform bad faith into good.

The judge basically accuses the defendant’s law firm, and thus the defendant itself, of not being straight with the court about plaintiffs’ emails and the defendant’s backup tapes.

Throughout the course of the litigation, Corinthian did not once provide a straight-forward explanation of the process and cost of extracting information from the tapes.

Here is how Judge Robart wrapped it all up.

In sum, the court finds, by clear and convincing evidence, that Corinthian’s and Corinthian’s counsel’s lackluster search for documents, failure to implement a litigation hold, deletion of evidence, refusal to cooperate with Plaintiffs in the discovery process (particularly as evidenced by its withholding of information regarding both the backup tapes and its interpretation of the parties’ Stipulated Order), reliance on a recklessly false declaration, shifting litigation positions, and inaccurate representations to the court constitute bad faith or conduct tantamount to bad faith.

Bad Faith Does Not Necessarily Mean Dispositive Sanctions

ZeroEven though the court found bad faith, no dispositive sanctions were granted. The adverse inference instruction the plaintiffs had requested was also denied. These harsh sanctions were denied because plaintiffs provided, as the judge put it – zero evidence that any evidence of significance to the case was not produced. They only offered conjecture. As Judge Robart noted: produced documents cannot form the basis for a spoliation instruction. 

I am kind of surprised by plaintiffs’ failure to offer up some evidence that relevant evidence was not produced. You would think the plaintiffs would be able to come up with something concerning their own email.

Based on this record, the wise Judge Robart, although obviously upset with defense counsel, wanted the racial discrimination case to be tried on the merits. Besides, perhaps he knew that the emails that were produced were good enough for the plaintiffs to prove their case. Or maybe it was the opposite. The plaintiffs could have had a very weak case. We cannot tell from this opinion. We can only tell that the judge wanted the case tried on the merits, despite the bad faith e-discovery by defendant.

The judge got his message across on his intolerance of bad faith by imposition of the $10,000 fine against the Payne & Fears law firm, and the $25,000 fine against defendant. He also awarded the plaintiff’s reasonable attorney fees and costs incurred in connection with the sanctions motions and duplicative discovery related thereto. Justice was done.

Lessons learned from Knickerbocker

no-BS-signSeveral lessons can be learned from this case. For one thing, there is the trial lawyers lesson. Be careful how you answer questions posed to you by the judge. Be sure you remember these magic words: I don’t know. Restrain the urge to speculate or BS. Just keep to the facts you do know. Ask to get back to the judge on important questions with a supplemental brief or something. This case clearly shows why that is important.

The obvious primary e-discovery lesson is to always implement a litigation hold. The hold should be in writing and there should be follow up by conversations with the custodians on hold and with IT. Auto-deletions programs should be suspended, and, if the size of the case warrants it under proportionality analysis, preservation of ESI by bulk IT collection should be done. In smaller cases, collection may not be required and preservation-in-place may be adequate. There is no one-size fits all in e-discovery. Although there are plenty of plaintiff’s experts out there ready to tell a court every case should be treated like the Taj Mahal. They should not. Efforts should be scaled proportionally. See eg: My Basic Plan for Document Reviews: The “Bottom Line Driven” Approach – Part Two (e-Discovery Team, 10/9/13)

Golden_ratio_line

The final lesson here pertains to backup tape restoration and search. It is never as easy as you think. Indeed, the tape or tapes may have deteriorated to the point that restoration is impossible. You never know until you try. Once you restore, finding the relevant ESI can also be a challenge. Do not ever sat easy peasy when it comes to backup tapes.

This opinion does not really go into the defendant’s search efforts here, merely stating that about 3,000 relevant emails were found from a search of the emails of all employees at one location. That still seems like a low production. But I suspect the “search” consisted of running keyword terms agreed upon with plaintiff’s counsel, and then manual review of the emails that contained the terms. If they were relevant, they were part of the 3,000 produced. If not, then of course they were not produced. You do not produce irrelevant email just because they happen to have an agreed upon search term. I suspect this kind of procedure was followed here, and if so, the plaintiffs cannot complain about the search efforts made by defense counsel. They were following the parties agreed upon protocol.

We really do not know what that protocol was, but if, as I suspect, it was a keyword search protocol, then, questions of estoppel aside, the issue of whether it was a reasonable effort would depend on whether the common sense dictates for keyword search contained in Judge Peck’s Gross Construction opinion were followed. William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134 (S.D.N.Y. 2009). Were the witnesses interviewed as to the language used? Were various keywords tested? Was the underlying data studied? The key documents? Or was it all done in the blind, like a child’s game of GO FISHChild’s Game of “Go Fish” is a Poor Model for e-Discovery Search (e-Discovery Team blog, 10/4/09).

Tested Keyword Search is Adequate for Most Cases

fear-loathingKeyword search alone, when done according to the standards set forth in Gross Construction, is a fair and adequate effort in most employment discrimination cases like the one in Knickerbocker v Corinthian CollegesMost employment cases are not really that complicated. For that reason the key documents needed to try most of these cases are not that difficult to find. Keyword search can and does work in the average case to meet the requirements of both Rule 26(g) and Rule 1 (just, speedy and inexpensive). It apparently worked just fine in Knickerbocker too, that is, after defense counsel stopped their Hunter S. Thompson routines and started playing it straight

There are some exceptional employment cases where keywords are inadequate. It depends on the case and the type of ESI, and the importance of the ESI to the case, and volume of ESI. But for most employment law cases the tested keyword search method of Gross Construction is reasonable and proportional. More sophisticated search methods, such as my favorite, predictive coding, may be needed in larger, more complex cases in other fields of law, as well as in some class action employment cases. But tested keywords work just fine for the vast majority of small cases that now flood our court system.

Most of these small cases in federal court are employment law cases. It seems like everyone has a beef these days. You would not believe the kind of frivolous cases that we see every day in my firm. Plaintiff’s counsel are not being selective. Many seem unable to overcome the natural trial lawyer tendency to be overconfident, unable to objectively predict the likely outcome of a potential client’s case. See: Lawyers as Legal-Fortune Tellers, (e-discovery Team, 3/30/14); Goodman-Delahunty, Granhag, Hartwig, Loftus, Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes, (Psychology, Public Policy, and Law, 2010, Vol. 16, No. 2, 133–157).

This limit of predictive coding to larger, more difficult cases will probably change in the future. The ever growing volume and types of ESI may demand the use of predictive coding in more and more cases. That should be made easier as the software costs of using predictive coding comes down even further. (For instance, my firm just closed a deal with Kroll Ontrack that lowers the costs for our clients even further. Look for press releases on this soon.) In the future predictive coding will expand to many more types and sizes of cases, but for now, predictive coding remains the exception in e-discovery, not the rule.

If your life revolves around discovery in the big cases, the complex cases with tons of ESI (actually, its weightless you know), then you should be using predictive coding all of the time. But for the vast majority of lawyers, dealing with the vast majority of relatively simple cases, it is not needed yet. You might as well hunt mosquitos with an elephant gun. Keyword search, done right, still works fine for the mosquito cases. Do not misunderstand me, mosquito bites can still hurt, especially if you get hit by too many of these blood suckers. You have to defend your company, but bad faith attempts to avoid discovery are never the way to go. Knickerbocker shows that.

Conclusion

Be straight with your judges. Always tell the truth. Talk about proportionality. They get it. The judges will protect you from the disproportionate use of e-discovery as an extortion tactic. We all know it still goes on. Has been for a long time as my parting string cite below reminds us. Both responding and requesting parties have to conduct discovery in good faith. When they do not, there are plenty of good judges around like James L. Robart to stop the abuse.

____________

Discovery abuse as a weapon. See, e.g.:

  • Advisory Committee Note to the 1983 Amendment of the Federal Rules of Civil Procedure creating Rule 26(g) (“Thus the spirit of the rules is violated when advocates attempt to use discovery tools as tactical weapons rather than to expose the facts and illuminate the issues by overuse of discovery or unnecessary use of defensive weapons or evasive responses.”)
  •  Branhaven LLC v. Beeftek, Inc., _F.R.D._, 2013 WL 388429 (D. Md. Jan. 4, 2013) (Rule 26(g) enforced and counsel sanctioned for reckless disregard of their discovery duties.) The Increasing Importance of Rule 26(g) to Control e-Discovery Abuses (e-Discovery Team, 2/24/13).
  • Judge Refers Defendant’s e-Discovery Abuse to U.S. Attorney for Criminal Prosecution of the Company and Four of Its Top Officers (e-Discovery Team, 4/10/11); Philips Electronics N.A. Corp. v. BC Technical, 2011 WL 677462 at *2 (D.Utah, Feb. 16, 2011).
  • Discovery As Abuse, (e-Discovery Team, 1/18/11); Discovery As Abuse, 69 B.U. L. REV. 635 (1989).
  • Kipperman v. Onex Corp., 2009 WL 1473708 (N.D.Ga., 2009) (“The court regards the instant case as a textbook case of discovery abuse.”)
  • Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B(BLM) Doc. 593 (S.D. Cal. Aug. 6, 2007) (Clear and convincing evidence that Qualcomm['s] counsel participated in an organized program of litigation misconduct and concealment throughout discovery, trial, and post-trial)
  • Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir.1993) (Fed.R.Civ.P. 26(g) was “designed to curb discovery abuse by explicitly encouraging the imposition of sanctions.”)
  • Bondi v. Capital & Fin. Asset Mgmt. S.A., 535 F.3d 87, 97 (2d Cir. 2008) (”This Court . . . has taken note of the pressures upon corporate defendants to settle securities fraud ‘strike suits’ when those settlements are driven, not by the merits of plaintiffs’ claims, but by defendants’ fears of potentially astronomical attorneys’ fees arising from lengthy discovery.”)
  • Spielman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 332 F.3d 116, 122-23 (2d Cir. 2003) (“The PSLRA afforded district courts the opportunity in the early stages of litigation to make an initial assessment of the legal sufficiency of any claims before defendants were forced to incur considerable legal fees or, worse, settle claims regardless of their merit in order to avoid the risk of expensive, protracted securities litigation.”)
  • Lander v. Hartford Life & Annuity Ins. Co., 251 F.3d 101, 107 (2d Cir. 2001) (“Because of the expense of defending such suits, issuers were often forced to settle, regardless of the merits of the action. PSLRA addressed these concerns by instituting . . . a mandatory stay of discovery so that district courts could first determine the legal sufficiency of the claims in all securities class actions.” (citations omitted))
  • Kassover v. UBS A.G., 08 Civ. 2753, 2008 WL 5395942 at *3 (S.D.N.Y. Dec. 19, 2008) (“PSLRA’s discovery stay provision was promulgated to prevent conduct such as: (a) filing frivolous securities fraud claims, with an expectation that the high cost of responding to discovery demands will coerce defendants to settle; and (b) embarking on a ‘fishing expedition’ or ‘abusive strike suit’ litigation.”)



Part Three of Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead, Long Live the Whole Man

February 1, 2014

This is the final part of a three-part blog. You will need to read the first two segments for this conclusion to makes sense. See Part One and Part Two of Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead, Long Live the Whole Man.

Final Word From Dan Ariely 

dan-arielyGetting back to Dan, the psychologist economist, in addition to teaching and running very clever experiments at MIT and Duke, Dan is the founder of an organization with a name that seems both funny and ironic, The Center for Advanced Hindsight. He is also a prolific writer and video maker, both activities I admire. See for instance his informative page at MIT, his blog at DanAriely.com, his several books, and his videos, and even though its slightly boring, see his web page at Duke.

As a final piece of evidence on overreliance on reason I offer more testimony by Professor Ariely’s via another video, one which is not at all boring, I swear. It is called The Truth About Dishonesty. It concludes with a subject near and dear to all lawyers, conflicts of interest. The non-rational impact of such conflicts turns out to be very strong and the law is wise to guard against them. Perhaps we should even step up our efforts in this area? 

Cornerstone Made of Pudding

The scientific experiments of Dan Ariely and others show that the cornerstone of the Law – reasonability – is not made of granite as we had thought, it is made of pudding. You can hide your head in the sand, if you wish, and continue to believe otherwise. We humans are quite good at self-delusion. But that will not change the truth. That will not change quicksand into granite. Our legal house needs a new and better foundation than reason. We must follow the physicists of a century ago. We must transcend Newtonian causality and embrace the more complex, more profound truth that science has revealed. The Reasonable Man is a myth that has outlived its usefulness. We need to accept the evidence, and move on. We need to develop new theories and propositions of law that confirm to the new facts at hand.

Science has shown that our current reason-only-based system of justice is on shaky grounds. It is now up to us to do something about it. No big brother government, or super think-tank guru is going to fix this for us. Certainly not scientists either, but they should be able to help, along with technologists, programmers and engineers.

homer-simpson-brain-scan

What are the implications of the findings of unreliable mental processes on the Law and our ability to reach just decisions? We should ask these questions concerning the Law, just like Professor Ariely is asking concerning Economics. Our fundamental legal assumption that all people can act out of reason and logic alone is false. Decisions made with these faculties alone are the exception, not the rule. There are a number of other contributing factors, including emotions, intuition, and environment. What does this mean to negligence law? To sanctions law? Now that the Reasonable Man is dead, who shall replace him?

Just as classical economic theory has had it all wrong, so too has classical legal theory. People are not built like reasonable machines. That includes lawyers, judges, and everyone else in the justice system, especially the litigants themselves.

If Not Reason, Then What?

Ralph_moustacheSince human reason is now known to be so unreliable, and is in fact, only a contributing factor to our decisions, on what should we base our legal jurisprudence. My answer is in the title of this blog. I believe that the Reasonable Man, now that he is known to be an impossible dream, should be replaced by the Whole Man. Our jurisprudence should be based on the reality that we are not robots, not mere thinking machines. We have many other faculties and capabilities beyond just logic and reason. We are more than math.

So I propose a new, holistic model for the law. It would still include reason, but add our other faculties. It would incorporate our total self, all human attributes. We would include more than logic and reason to judge whether behavior is acceptable or not, to consider whether a resolution of a dispute is fair or not.

A new schemata for a holistic jurisprudence would thus include not just human logic, but also human emotions, our feelings of fairness, our intuitions of what is right and just, and multiple environmental and perceptual factors. I suggest a new model start simple and use a four-fold structure like this, and please note I keep Reason on top, as I still strongly believe in its importance to the Law.

4-levels-Holistic_Law_pyramid

Some readers may notice that this model is similar to that of Carl Jung’s four personality types and the popular Myers Briggs personality tests. I am not advocating adoption of any of their ideologies, or personality theories, but I have over the years found their reference models to be useful. The above model, which is proposed only as a starting point for further discussion, is an extrapolation of these psychological models.

Call For Action

No one knows yet knows the full implications of the new data from science about the limited impact of logic and reason on human decisions. No one knows how to modify our legal systems to account these insights. Certainly I do not. But I do know that we should do something to reduce our overreliance on the Myth of the Reasonable Man. We should put the foundations of our legal system on something else, something more solid, more real than that.

In short, we need to put our house in order before it starts collapsing around us. That is the reasonable thing to do, but for that very reason we will not start to do it until we have better motivation than that. You cannot get people to act on reason alone, even lawyers. So let us engage the other more powerful motivators. To start the ball rolling, I will give special recognition and publicity to the best suggestions received from my readers to this problem, the best comments to this blog.

Maybe reason alone should always be secondary to simple fairness? Maybe that feeling of fairness, is more reliable than reasoned processes. Run the experiments please scientists. How reliable are our feelings of fairness? More importantly, what is the impact of feelings on our judges who pay attention to that? Maybe feelings should be on top of the new Holistic model. I personally doubt that, but who knows for sure until experiments are done. What I do not doubt is that feelings need to be taken into consideration more than they are now as true motivators of human action.

Maybe this means we should bring back equity, and down play law, like the old days, where we used to have Courts of Law and separate Courts of Equity. By the middle of the last century, Courts of Law won out in most states except Delaware, Mississippi, New Jersey, South Carolina, and Tennessee. Separate Equity Courts were closed down in favor of Courts of Law. Maybe we got it backwards. Maybe we were all led astray by our false confidence in reason.

Maybe we should now close our courts of Law and reopen our courts of Equity? How has it worked out for the states that kept equity courts? Have Chancellors truly been able to side-step strict rules of law when they felt it was equitable to do so? If so, how has that worked out? Has power been abused? Or has justice been attained more often? What can we learn from chancery courts that might help us build a more holistic court of the future?

A Few More Specific Suggestions of Reform

As discussed already, the AI enhancements now moving the law will continue to expand as a tool for the lawyers willing to learn how to use them. They will enhance and help improve our limited reasoning abilities. They will help us be more efficient.  They could also help us to stay completely honest, if we allow them to. So too will more emotional, in your face type judges, whether we let them or not. We need more judges who do not mind getting down into the weeds, to really understand the facts, and then tell you what they really think, both good and bad please.

Maybe timely reminders of ethics codes and serious under penalties of perjury type threats will also help? Maybe new, improved, and customized oaths will help? Oaths have been shown to be effective by Ariely’s research, so we should modify the rules accordingly.

Electrodes_EEG_RalphMaybe new truth recognition technologies should be used? Could a truth hat with built-in neural net be that far off? How about Google Glasses apps that provide reliable new feedback of all kinds on the people you watch testifying? That cannot be too far off.  (The lie detection apps already on the market for iPhones, etc., all look bogus to me, which is not unexpected based on the limited biofeedback the phone sensors can provide.) Even if the information is not admissible as evidence, it could still be quite valuable to lawyers. (Write me if you know of anyone working on any commercial projects like this for lawyers.) Perhaps some of the recent discoveries in neuroscience could begin to be used in the justice system in all types of unexpected ways?

trophy_LawMaybe public recognition and awards to lawyers and judges who get it right will help? And awards to litigants who do the right thing, even if they lose the case? How about a discretionary set-off for defendants like that? How about the converse? Shame can be a powerful motivator too.

Maybe we should change the conditions and environments of places where witnesses are questioned, where mediations and trials are conducted? Maybe we should provide special training to court reporters on oath giving? Maybe we should have trials again, and not just settlements?

We need to look for all kinds of motivators. Knowledge and reason alone are not a solid foundation for justice.

Conclusion

Changes are inevitable anyway in all social structures, so we should try to shape the ongoing changes in the Law. We should study what science has found and be guided by truth, not tradition.

We should try to move away from overreliance on reason alone. Where we must still rely on reason, and of course we must, we should look for science and technology based methods to impose even more checks and balances on reason than we already have. We should create new systems that will detect and correct the inevitable errors in reason that all humans will make – lawyers, judges and witnesses alike. Perhaps computers can help with this? Perhaps it would help to have easier and less expensive appeals? Especially interlocutory appeals? Perhaps greater use of experts, panels and special masters? We really need to start focusing on this, and, by the way, we cannot just think our way out of a prison of thought. We need to use all of our faculties.

We also need help from the scientific community. We need someone like Professor Ariely to focus on Law the way he has focused on Economics. So far I have not found anyone like that.

Please feel free to share any ideas you may have in the Comments to this blog below, or by private email to me. Again, the best comment will be recognized and praised. I may even give you some shout-outs at LegalTech this week. By the way, if you see me there, please take a moment to stop me and introduce yourself. I always like to meet my readers. If you know of any research psychologists who might be interested in these issues, please share this blog with them. I have already reached out to Dan Ariely. He responded right away and promised to provide a more detailed reaction later. When he does I will share his input in a later blog.


Part Two of Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead, Long Live the Whole Man

January 26, 2014

This is the second part of a three-part blog. You will need to read the first part for this segment to make sense. See Part One of Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead, Long Live the Whole Man.

Doing the Right Things for the Wrong Reasons

Dan_Ariely_toastAre you a die-hard rationalist and demand more proof that the Reasonable Man is a myth? More evidence? Then listen to Dan Ariely’s Doing The Right Things for The Wrong Reasons. Professor Ariely talks about more of his experiments. They show how immediate, tangible, emotions and concrete facts are a much more powerful motivator than all abstract knowledge. This means that one sanctions case invoking fear will do much more to encourage cooperation than a thousand law review articles. In my experience judges that threaten harsh punishment, that are known not to tolerate discovery misconduct, tend to have fewer disputes. Now we know why. Fear is a more powerful motivator than reason. For some people a good glass of wine is a powerful motivator too.

Professor Ariely’s testimony in this video examines the big gap between everyone’s knowledge of what they should be doing, and what they actually are doing. The truth is, we often do not act reasonably. There are many other more powerful forces at work. One of the most important is environment, and thus my earlier comments on impressive court rooms, wigs, courtly conduct, and the like.

In the second half of his testimony Dan Ariely started to share some of the solutions he has come up with to these problems, ways to trick yourself and others into doing the right thing. One such motivator is public recognition, pride. Remember the Prius. So how about Cooperation awards of lawyers? Proportionality awards for judges, etc. Let’s award a whole lot of gold, silver and especially bronze medals. I am serious about this awards and recognition proposal. If you have any interest in funding such awards, or otherwise being involved, please let me know. This would be a good opportunity for vendors in the legal space, especially e-discovery vendors.

Mere intellectual appeals to change behavior are almost useless. Proclamations included. You have to persuade the whole human, and that requires addressing emotions and many other subconscious factors. That requires far more than abstract, knowledge-based writings.

The Power of Emotions and the Myth of Reasoned Behavior

The power of emotions, and immediate gratification, should never be underestimated. This includes the positive motivators, like praise and recognition. An active judiciary can do much more to impact reasonable, ethical conduct than all appeals to reason. Judges need to be in your face, with both criticism and praise, stick and carrot. The motivations need to be immediate and real, not abstract and future oriented. See eg. Victor Stanley and the impact of Judge Grimm’s threats of immediate imprisonment of Pappas, the ultimate hide-the-ball litigant. Only that last jail contempt order slowed the games.

This all reminds me of Judge Waxse’s quip that lawyers are like elementary particles, they change when observed (by judges). He has found that lawyers are more inclined to cooperate simply by including a possibility that a judge might someday watch a video of their behavior. Maybe we should require that all lawyer-to-lawyer communications be taped? Maybe we should triple the number of judges and give them all sensitivity training? Who knows? But the research shows that all manner of alternatives like that would be more successful than mere appeals to reason alone.

Waxse_Losey

This all makes me wonder why I even bother to continue to write, but then again, you may have noticed that I try to include non-rational appeals in my writing, such as images and the great irrational motivator of humor. Humor is an elusive emotion to reach, but well worth the effort. It is difficult to resist the ideas of anyone who makes you laugh. Personally, I refuse to emulate anyone who does not at least make me smile. If they make me laugh out loud, well, I will dig in deep to try to understand them and their ideas.

Why else do you think I quote Jason R. Baron so much and like to present with him? He is always amusing, on and off stage. Even his arcane intellectual references can be funny; depends on the delivery. That is amazing when you consider that he is usually presenting on records management, now lately called information governance (apparently an attempt to make the topic seem vaguely interesting). They say that a smart comic can make even the reading of a phone book seem funny.

Attend some of my events with Jason at LegalTech and see for yourself. We are bound to at least make you smile. I promise to talk about killer robots, while Jason explains how AI will soon change information governance. Who knows, in the future maybe even the federal government will stop printing and filing emails as paper. But I digress.

Law is Like Economics:
Both Are Still Based on an Irrational Reliance on Reason

As you have seen from the videos, Dan Ariely is not only witty, but also a psychologist and an economist.  He has one PhD in Psychology and another in Business Administration. He is also an author of a number of books that explain his works to the general reader, including the best seller: Predictably Irrational: The Hidden Forces That Shape Our Decisions.

Dan evaluates the implications of his irrationality findings in Psychology on the field of Economics. So too are many other pundits in the field. See eg. Post-Rational Economic Manand Exploring the Post-Rational 21st CenturyAriely and others have amassed a growing body of evidence that humans are not rational machines. Yet most economists, much like most lawyers, do not believe that. They still believe that people make rational decisions. For instance, that purchases are based on reason alone. See Rational Choice Theory. That is the basis of classic economic theory, and since that presumption is wrong, so is the theory. Economics is now struggling with the development of new theories based on the way people really act. Dan is a leader of that movement, which he calls Behavioral Economics.

Learning a little about Dan’s insights and proposals to reform economic theories, and make them more realistic, and empirically based, can provide insights into the Law and reforms we should make. Surely we can do better than propose more videotapes of lawyers, in your face judges, bibles and oaths, solemn court reporters, and British style ceremonial conduct. But these are a start.

More fundamentally, we need to consider how we should speak of legal negligence in the future. We need to stop referring to whether an act is reasonable, and instead speak of acceptability, with reason just one of several factors to consider in evaluating acceptable behavior. That is what call, for lack of a better term, Holistic Jurisprudence. More on that later. Perhaps some law professors and judges are already thinking and writing about this, and I am not aware of their writings. (If they are, or you are, please let me know.) If not, then what are we waiting for? The evidence of innate irrationally based,  yet acceptable, behavior, is strong. That is our everyday reality. So why do we use a measure of acceptable conduct that does not mirror reality? Legal theory needs to change as much as economic theory, and so too does legal practice.

Robots and Neuroscience?

Facc_RobotI know what you are thinking. Maybe the answer is simply to turn our justice system over to robots programmed to make rational decisions. They will not suffer from innate irrationality like our judges do. (Yes, even judges are human and thus even judges suffer from the same cognitive disorders, same irrational drivers, that other humans do). Rational machines could also be programmed to fairly consider the innate irrationality of humans. We could create super robojudges by using active machine learning. They could receive training in just-decision-making by our top judges. Imagine, for instance, the wisdom and wit of Judge Facciola programmed into an AI entity. The input from our top judges would thereby, in theory at least, live forever. The experience and intelligence of our best judges would then be available to all litigants, not just the lucky few who appear before them. This puts a while new positive spin onto the Ghost in the Machine image.

The AI enhanced robojudges would, of course, be far more than mere rational machines. They would be trained by our legal experts to render judgments based on the Whole Man, one that actually exists, and not the legal fiction of the Reasonable Man. They would be programmed in a post-rational manner following models of real human behavior of acceptable conduct. (Our best human judges and lawyers already do that anyway, even if the jurisprudence theory says otherwise.) The day will come when many litigants will prefer smart, well-trained robots to serve as judges to evaluate acceptable conduct, especially when there are good human appeals judges to oversee the process.

It is inevitable that we will use artificial intelligence and big data in some way to reform the judicial system, to make it more effective. It has already happened in document review. Its application to the bench and judicial decision-making is also inevitable.

AI and big data will change the way judicial decisions are made, but robojudges? No. That may be the endgame, but I do not think we are ready for that, yet. Judge Facciola’s job is safe, even if his law clerk’s job is not. Unless, of course, Ray Kurzweil is right about the Singularity coming soon, then all bets are off. But Kurzweil is probably wrong about how fast AI will advance, and so I do not see this anything like this happening in the first half of this century. Computers now all have human programmers and programming errors. Who do you think would be designing the robojudges’ technology? Do you really want to replace our judges with machines like that?

No, that is not The answer (at least not yet), but it may be part of the answer. The use of AI enhanced tools in the law, such as what we call predictive coding for document review, is just beginning. It will continue and expand into many other legal activities. Very soon many more types of lawyers in addition to contract review lawyers will need to retool in order to stay employed. Their tasks will be automated, and they will be out of work. At the same time new employment positions will open for those involved in the new technologies. The jobs that open up will require greater skills, intellect, empathy, leadership, creativity and imagination. They will require uniquely human attributes way beyond the programming of any robots, now and perhaps forever.

I do not know exactly how it will play out, but, even if our judges remain human, new advanced technologies will necessarily be part of all future legal reforms. Many of the technologies are probably still unknown and thus impossible to project. But some will be based on existing technologies, just significantly improved.

Facciola_computerPerhaps that will include active machine learning and AI based law clerks for judges. It is not hard to imagine a judge’s consideration of an AI enhanced suggested view of the case. After all, they already do this based on their clerk’s views. I suspect judicial clerks will be replaced way before the judges themselves. Judges need to be enhanced with better computers, not replaced by them.

To take a more mundane example than robots and AI, I suspect that lie detection technologies will soon advance enough to be of greater assistance to the Law. How about acceptably intrusive truth-compelling technologies? I can easily imagine neural nets with electronic brain monitors built into “truth hats.” Witnesses would be required to wear the truth-indicating hats and give the attorneys, judges and juries more and better insights into their testimony. Not only intentional lies could be revealed, but strength of recollection, areas of brain accessed, etc. This would not have to be dispositive, but suggestive. This could provide us with something more to evaluate credibility than raw instinct and intuition, as important as these faculties are.

Meet-the-Parents-lie-detector with Harry Potter twist

We should be looking for all kinds of ways to bring the recent incredible advances in Neuroscience into the justice system. This is not futuristic science fiction, nor Losey’s over-active imagination. It is already happening. Many neuroscientists are looking into lie detection and other possible neuroscience applications in the Law. See eg Harvard’s Center for Law, Brain and Behavior and its program on Lie Detection & the Neuroscience of Deception.

END OF PART TWO.
Part three will follow next Sunday as I pack for LegalTech.


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