Many police departments are using big data analytics to predict where crime is likely to take place and prevent it. Should lawyers do the same to predict and stop illegal, non-criminal activities? This is not the job of police, but should it be the job of lawyers? We already have the technology to do this, but should we? Should lawyers be big data cops? Does anyone even want that?
Crime Prevention by Data Analytics is Already in Use by Many Police Departments
The NY Times reported on this back in 2011 when it was relatively new: Sending the Police Before There’s a Crime. The Times reported how the Santa Cruz California police were using data analysis to predict where burglaries and other crimes might take place and to deploy police officers accordingly:
The arrests were routine. Two women were taken into custody after they were discovered peering into cars in a downtown parking garage in Santa Cruz, Calif. One woman was found to have outstanding warrants; the other was carrying illegal drugs.
But the presence of the police officers in the garage that Friday afternoon in July was anything but ordinary: They were directed to the parking structure by a computer program that had predicted that car burglaries were especially likely there that day.
The Times reported that several cities were already using data analysis to try to systematically anticipate when and where crimes will occur, including the Chicago Police Department. Chicago created a predictive analytics unit back in 2010.
This trend is growing and precrime detection technologies are now used by many police departments around the world, including the Department of Homeland Security, not to mention the NSA analytics of metadata. See eg The Minority Report: Using Predictive Analytics to prevent the crime from happening in the first place! (IBM); In Hot Pursuit of Numbers to Ward Off Crime (NY Times); Police embracing tech that predicts crimes (CNN); U.S. Cities Relying on Precog Software to Predict Murder (Wired). The analytics are already pretty good at predicting places and times where cars will be stolen, houses robbed and people mugged.
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lthough these programs help improve efficient crime fighting, they are not without serious privacy and due process critics. Imagine the potential abuses if an evil Big Brother government was not only watching you, but could arrest you based on computer predictions of what you might do. Although no one is arresting people yet for what they might do as in the Minority Report, they are subjecting people to significantly increased scrutiny, even home visits. See eg. Professor Elizabeth Joh, Policing by Numbers: Big Data and the Fourth Amendment; Professor Brandon Garrett, Big Data and Due Process; The minority report: Chicago’s new police computer predicts crimes, but is it racist? (The Verge, 2014); Eric Holder Warns About America’s Disturbing Attempts at Precrime. Do we really want to give computers, and the people who operate them, that much power? Does the Constitution as now written even allow that?
Should Lawyers Detect and Stop Law Suits Before They Happen?
Should lawyers follow our police departments and use data analytics to predict and stop illegal, but non-criminal activities? The police will not do it. It is beyond their jurisdiction. Their job is to fight crime, not torts, not breach of contract, nor the tens of thousand of other civil wrongs that people and corporations sue each other about every day. Should lawyers do it? Is that the next step for the plaintiff’s bar? Is that the next step for corporate defense lawyers? For corporate compliance lawyers? For the Civil Division of the Department of Justice? How serious is the potential loss in privacy and other rights to go that route? What other risks do we take in using our new found predictive coding skills in this way?
There are millions of civil wrongs committed each year that are beyond the purview of the criminal justice system. Many of them cause disputes, and many of these disputes in turn lead to state and federal litigation. Evidence of these illegal activities is present in the both public and private data. Should lawyers mine this data to look for civil wrongs? Should the civil justice system include prevention? Should lawyers not only bring and defend law suits, but also prevent them?
This is not the future we are talking about here. The necessary software and search skills already exist to do this. Lawyers with big data skills can already detect and prevent breach of contract, torts, and statutory violations, if they have access to the data. It is already possible for skilled lawyers to detect and stop these illegal activities before damages are caused, before disputes arise, before law suits are filed. Lawyers with artificial intelligence enhanced evidence search skills can already do this.
I have written about this several times before and even coined a word for this legal service. I call it “PreSuit.” It is a play off the term PreCrime from the Minority Report movie. I have built a website that provides an overview on how these services can be performed. Some lawyers have even begun rendering such services. But should they? Some lawyers, myself included, know how to use existing predictive coding software to mine data and make predictions as to where illegal activities are likely to take place. We know how to use this predictive technology to intervene to prevent such illegal activity. But should we?
Just because new technology empowers us to do new things, does not mean we should. Perhaps we should refrain from becoming big data cops? We do not need the extra work. No one is clamoring for this new service. Should we build a new bomb just because we can?
Do we really want to empower an elite group of technology enhanced lawyers in this way? After all, society has gotten along just fine for centuries using traditional civil dispute resolution procedures. We have gotten along just fine by using a court system that imposes after-the-fact damages and injunctions to provide redress for civil wrongs. Should we really turn the civil justice system on its head by detecting the wrongs in advance and avoiding them?
Is it really in the best interest of society for lawyers to be big data cops? Or anyone else for that matter? Is it in the best interests of corporate world to have this kind of private police action? Is it in the best interest of lawyers? The public? What are the privacy and due process ramifications?
Some Preliminary Thoughts
I do not have any answers on this yet. It is too early in my own analysis to say for sure. These kind of complex constitutional issues require a lot of thought and discussions. All sides should be heard. I would like to hear what others have to say about this before I start reaching any conclusions. I look forward to hearing your public and private comments. I do, however, have a few preliminary thoughts and predictions to start the discussion. Some are serious, some are just designed to be thought-provoking. You figure out which are which. If you quote me, please remember to include this disclaimer. None of these thoughts are yet firm convictions, nor certain predictions. I may change my mind on all of this as my understanding improves. As a better Ralph than I once said: “A foolish consistency is the hobgoblin of little minds.”
First of all, there is no current demand for this service by the people who need it the most, large corporations. They may never want this, even though such opposition is irrational. It would, after all, reduce litigation costs and make their company more profitable. I am not sure why, and do not think it is as simple as some would say, that they just want to hide their illegal activities. Let me tell you an experience from my 34 years as a litigator that may shed some light on this. This is an experience that I know is common with many litigators. It has to do with the relationship between lawyers and management in most large companies.
Occasionally during a case I would become aware of a business practice in my client corporation that should obviously be changed. Typically it was a business practice that created or at least contributed to the law suit I just defended. The practice was not blatantly illegal, but was a grey-area. The case had shown that it was stupid and should be changed, if for no other reason than to prevent another case like that from happening. Since I had just seen the train wreck in slow motion, and knew full well how much it had cost the company, mostly in my fees, I thought I would help the company to prevent it from happening again. I would make a recommendation as to what should be changed and why. Sometimes I would explain in detail how the change would have prevented the litigation I just finished. I would explain how a change in the business practice would save the company money.
I have done this several times as a litigator at other firms before going to my current firm where I only do e-discovery. Do you know what kind of reaction I got? Nothing. No response at all, except perhaps a bored, polite thanks. I doubt my lessons learned memos were even read. I was, after all, just an unknown, young partner in a Floriduh law firm. I was not pointing out an illegal practice, nor one that had to be changed to avoid illegal activities. I was just pointing out a very ill-advised practice. I have had occasions to point out illegal activities too, in fact this is a more frequent occurrence, and there the response is much different. I was not ignored. I was told this would be changed. Sometimes I was asked to assist in that change. But when it came to recommendations to change something not outright illegal, suggestions to improve business practices, the response was totally different. Crickets. Just crickets. And big yawns. When will lawyers learn their place?
A couple of times I talked to in-house counsel about this, and tried to enlist their support to get the legal, but stupid, business practice changed. They would usually agree with me, full-heartedly, on the stupid part, after all they had seen the train wreck too. But they were cynical. They would explain that no one in upper management would listen to them. I am speaking about large corporations, ones with big bureaucracies. It may be better in small companies. In large companies in-house would express frustration. They knew the law department had far less juice than most others in the company. (Only the poor records department, or compliance department, if there is one, typically gets less respect than legal.) Many other parts of a company actually generate revenue, or at least provide cool toys that management wants, such as IT. All Legal does is spend money and aggravate everyone. The department that usually has the most juice in a company is sales, and they are the ones with most of the questionable practices. They are focused on money-making, not abstractions like legal compliance and dispute avoidance. Bottom line, in my experience upper management is not interested in hearing the opinions of lawyers, especially outside counsel, on what they should do differently.
Based on this experience I do not think the idea of lawyers as analytic cops to prevent illegal activities will get much traction with upper management. They do not want a lawyer in the room. It would stifle their creativity, their independent management acumen. They see all lawyers as nay sayers, deal breakers. Listen to lawyers and you’ll get paralysis by analysis. No, I do not see any welcome sign appearing for lawyers as big data cops, even if you present chart after chart as to how much data, time and frustration you will save the company in litigation avoidance. Of course, I never was much of a salesman. I’m just a lawyer who follows the hacker way of management (an iterative, pragmatic, action-based approach, which is the polar opposite of paralysis by analysis). So maybe some vendor salesmen out there will be able to sell the PreSuit concept, but not lawyers, at least not me.
I have tried all year. I have talked about this idea at several events. I have written about it, and created the PreSuit website with details. Do you know how many companies have responded? How many have expressed at least some interest in the possibility of reducing litigation costs by data analytics? Build it and they will come, they say. Not in my experience. I’ve built it and no one has come. There has been no response at all. Weeds are starting to grow on this field of dreams. Oh well. I’m a golfer. I’m used to disappointment.
This is probably just as well because reduction of litigation is not really in the best interests of the legal profession. After all, most law firms make most of their money in litigation. Lawyers should refuse to be big data cops and should let the CEOs carry on in ignorant bliss. Let them continue to function with eyes closed and spawn expensive litigation for corporate counsel to defend and for plaintiff’s counsel to get rich on. The litigation system works fine for the lawyers, and for the courts and judges too. Why muck up a big money generating machine by avoiding the disputes that the keep whole thing running? Especially when no one wants that.
All of the established powers want to leave things just the way they are. Can you imagine the devastating economic impact a fifty percent reduction in litigation would cause on the legal system? On lawyers everywhere? Both plaintiff’s and defendant’s bars? Hundreds of thousands of lawyers and support staff would be out of work. No. This will be ignored, and if not ignored, attacked as radical, new, unproven, and perhaps most effective of all, as dangerous to privacy rights and due process. The privacy anti-big-brother groups will, for once, join forces with corporate America. Protect the workers they will say. Unions everywhere will oppose PreSuit. Labor and management will finally have an issue they can agree upon. Only a few high-tech lawyers will oppose them, and they are way outnumbered, especially in the legal profession.
No, I predict this will never be adopted voluntarily, nor will it ever be required by legislation. The politicians of today do not lead, they follow. The only thing I see now that will cause people to want to avoid litigation, to use data analytics to detect and prevent disputes, is the collapse, or near-collapse, of our current system of civil litigation. Lawyers as big data cops will only come out of desperation. This might happen sooner than you think.
There is another way of course. True leadership could come from the new ranks of corporate America. They could see the enlightened self-interest of PreSuit litigation avoidance. They could understand the value of data analytics and value of compliance. This may not come from our current generation old-school leaders, they barely know what data analytics is anyway. But maybe it will come from the next wave of leaders. There is always hope that the necessary changes will be made out of intelligence, not crises. If history is any guide, this is unlikely, but not impossible.
On the other hand, maybe this is benevolent neglect. Maybe the refusal to adopt these new technologies is for the best. Maybe the power to predict civil wrongs would be abused by a small technical elite of e-discovery lawyer cops. Maybe it would go to their head, and before you know it, their heavy hands would descend to rob all employees of their last fragments of privacy. Maybe innovation would be stifled by the fear that new creative actions might be seen as a precursor to illegal activities. This chilling effect could cause everyone to just play it safe.
The next generation of Steve Jobs would never arise in conditions such as this. They would instead come from the last remaining countries that still maintained a heavy litigation load. They would arise in cultures that still allow the workforce to do as it damn well pleases, and just let the courts sort it all out later. Legal smegal, just get the job done. Maybe expensive chaos is the best incubator we have for creative genius? Maybe it is best to keep lawyers out of the boardroom? Much less give them a badge and let them police anything. It is better to keep data analytics in Sales where it belongs. Let us know what our customers are doing and thinking, but keep a blind eye to ourself. That way we can do what we want.
Conclusion
I always end my blogs with a conclusion. But not this time. I have no conclusions yet. This could go either way. This game is too close to call. We are still in the early innings yet. Who knows? A few star CEOs may come out of the cornfields yet. Then we could find out fast whether PreSuit is a good thing. A few test cases should flush out the facts, good and bad.
Many companies already have people that work in this area as part of their compliance department. I know quite a few data scientists that work directly for major corporations that look for suspicious activity and feed that information to in house counsel. It’s going to become more and more common for large companies to actively monitor employees as a way to get out in front of many types of litigation.
After all, if a computer can identify concepts and be trained to look for patterns, why wouldn’t companies want to do this in real time to protect themselves from tens of millions of dollars in fines and damages?
That is encouraging to hear. I hope you are right. I’m just not seeing it yet.
In October 2012, I wrote “Data Lawyers and Preventive Law,” which appeared in Law Technology News. In January 2013, Bill Inmon (father of the data warehouse) and I formed Intraspexion for the “preventive law” purpose you describe. The technology problem is NOT an easy one, but we’re not discouraged.
As for privacy, the issue is real, but in Holmes v. Petrovich Development Co., LLC, 191 Cal.App.4th 1047, 119 Cal.Rptr.3d 878 (2011), the appellate court noted that when the employer has an express policy which reduces any expectation of privacy, e-mail communications between an employee and her attorney are NOT entitled to the benefit of the attorney-client privilege, and are instead equivalent to “consulting her lawyer in her employer’s conference room, in a loud voice, with the door open.”