Lawyers’ Job Security in a Near Future World of AI, the Law’s “Reasonable Man Myth” and “Bagley Two” – Part One

bad-robotDoes the inevitable triumph of AI robots over human reason and logic mean that the legal profession is doomed? Will Watson be the next generation’s lawyer of choice? I do no think so and have written many articles on why, including two last year: Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead and the Holistic Lawyer is Born; and The Law’s “Reasonable Man,” Judge Haight, Love, Truth, Justice, “Go Fish” and Why the Legal Profession Is Not Doomed to be Replaced by Robots. In the Reasonable Man article I discussed how reasonability is the basis of the law, but that it is not objective. It depends on many subjective factors, on psychology. In the Scientific Proof article I continued the argument and argued:

The Law’s Reasonable Man is a fiction. He or she does not exist. Never has, never will. All humans, including us lawyers, are much more complex than that. We need to recognize this. We need to replace the Law’s reliance on reason alone with a more realistic multidimensional holistic approach.

Scientific Proof Article

brain_gears_NOTo help make my argument in the Scientific Proof article I relied on the analysis of Thomas H. Davenport and Julia Kirby in Only Humans Need Apply: Winners and Losers in the Age of Smart Machines (Harper 2016) and on the scientific work of Dan Ariely, a Professor of Psychology and Behavioral Economics at Duke University.

I cite to Only Humans Need Apply: Winners and Losers in the Age of Smart Machines to support my thesis:

Although most lawyers in the profession do not know it yet, the non-reasoning aspects of the Law are its most important parts. The reasoning aspects of legal work can be augmented. That is certain. So will other aspects, like reading comprehension. But the other aspects of our work, the aspects that require more than mere reason, are what makes the Law a human profession. These job functions will survive the surge of AI.

If you want to remain a winner in future Law, grow these aspects. Only losers will hold fast to reason. Letting go of the grip of the Reasonable Man, by which many lawyers are now strangled, will make you a better lawyer and, at the same time, improve your job security.

Also see Dean Gonsowski, A Clear View or a Short Distance? AI and the Legal Industry; and, Gonsowski, A Changing World: Ralph Losey on “Stepping In” for e-Discovery, (Relativity Blog).

Professor Ariely has found from many experiments that We’re All Predictably Irrational. In my article, Scientific ProofI point my readers to his many easily accessible video talks on the subject. I consider the implication of Professor Ariely’s research on the law:

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. Reason is just one part of who we are. There is much more to us then that: emotion, empathy, creativity, aesthetics, intuition, love, strength, courage, imagination, determination – to name just a few of our many qualities. These things are what make us uniquely human; they are what separate us from AI. Logic and reason may end up being the least of our abilities, although they are still qualities that I personally cherish. …

Davinci_whole_manSince human reason is now known to be so unreliable, and is only a contributing factor to our decisions, on what should we base our legal jurisprudence? 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. We are living beings. Reason is just one of our many abilities.

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. Equity would regain equal importance.

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

My Scientific Proof article included a call to action, the response to which has been positive:

The legal profession needs to take action now to reduce our over-reliance 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. 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, including the emotions of fear and greed. For if we do not evolve our work to focus on far more than reason, then we will surely be replaced.

cyborg-lawyer

AI can think better and faster, and ultimately at a far lower cost. But can AI reassure a client? Can it tell what a client really wants and needs. Can AI think out of the box to come up with new, creative solutions. Can AI sense what is fair? Beyond application of the rules, can it attain the wisdom of justice. Does it know when rules should be bent and how far? Does it know, like any experienced judge knows, when rules should be broken entirely to attain a just result? Doubtful.

I go on to make some specific suggestions, just to start the dialogue, and then closed with the following:

We must move away from over-reliance on reason alone. Our enlightened self-interest in continued employment in the rapidly advancing world of AI demands this. So too does our quest to improve our system of justice, to keep it current with the rapid changes in society.

Where we must still rely on reason, we should at the same time realize its limitations. We should look for new technology based methods to impose 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 make – lawyers, judges and witnesses alike. Bias and prejudice must be overcome in all areas of life, but especially in the justice system.

Computers, especially AI, should be able to help with this and also make the whole process more efficient. We need to start focusing on this, to make it a priority. It demands more than talk and thinking. It demands action. We cannot just think our way out of a prison of thought. We need to use all of our faculties, especially our imagination, creativity, intuition, empathy and good faith.

Reasonable Man Article

Reasonable_man_cloudTo help make my argument in the earlier blog, The Law’s “Reasonable Man,” Judge Haight, Love, Truth, Justice, “Go Fish” and Why the Legal Profession Is Not Doomed to be Replaced by Robots, I quoted extensively from an Order Denying Defendant’s Motion for Protective Order. The order arose out of a routine employment discrimination case. Bagely v. Yale, Civil Action No. 3:13-CV-1890 (CSH) (Doc. 108) (order dated April 27, 2015). The Order examined the “reasonability” of ESI accessibility under Rule 26(b)(2)(B) and the “reasonable” efforts requirements under Rule 26(b). I used language of that Bagley Order to help support my argument that there is far more to The Law than mere reason and logic. I also argued that this is a very good thing, for otherwise lawyers could easily be replaced by robots.

Another e-discovery order was entered in Bagley on December 22, 2016. Ruling On Plaintiff’s Motion To Compel. Bagely v. Yale, Civil Action No. 3:13-CV-1890 (CSH). Bagley Two again provokes me to write on this key topic. This second order, like the first, was written by Senior District Judge Charles S. Haight, Jr.. The eighty-six year old Judge Haight is becoming one of my favorite legal scholars because of his excellent analysis and his witty, fairly transparent writing style. This double Yale graduate has a way with words, especially when issuing rulings adverse to his alma mater. He is also one of the few judges that I have been unable to locate an online photo of, so use your imagination, which, by the way, is another powerful tool that separates us from AI juiced robots.

Lady JusticeI pointed out in the Reasonable Man article, and it bears repetition, that I am no enemy of reason and rationality. It is a powerful tool in legal practice, but it is hardly our only tool. It is one of many. The “Reasonable Man” is one of the most important ideas of Law, symbolized by the balance scales, but it is not the only idea. In fact, it is not even the most important idea for the Law. That honor goes to Justice. Lady Justice holding the scales of reason is the symbol of the Law, not the scales alone. She is usually depicted with a blindfold on, symbolizing the impartiality of justice, not dependent on the social status or position of the litigants.

My view is that lawyer reasoning should continue in all future law, but should augmented by artificial intelligence. With machines helping to rid us of hidden biases in all human reason, and making that part of our evaluation easier and more accurate, we are free to put more emphasis on our other lawyer skills, on the other factors that go into our evaluation of the case. These include our empathy, intuition, emotional intelligence, feelings, humor, perception (including lie detection), imagination, inventiveness and sense of fairness and justice. Reason is only one of many human capacities involved in legal decision making.

In Reasonable Man article I analyzed the first Bagley Order to help prove that point:

Bagley shows that the dividing line between what is reasonable and thus acceptable efforts, and what is not, can often be difficult to determine. It depends on a careful evaluation of the facts, to be sure, but this evaluation in turn depends on many subjective factors, including whether one side or another was trying to cooperate. These factors include all kinds of prevailing social norms, not just cooperativeness. It also includes personal values, prejudices, education, intelligence, and even how the mind itself works, the hidden psychological influences. They all influence a judge’s evaluation in any particular case as to which side of the acceptable behavior line a particular course of conduct falls.

In close questions the subjectivity inherent in determinations of reasonability is obvious. This is especially true for the attorneys involved, the ones paid to be independent analysts and objective advisors. People can, and often do, disagree on what is reasonable and what is not. They disagree on what is negligent and what is not. On what is acceptable and what is not.

All trial lawyers know that certain tricks of argument and appeals to emotion can have a profound effect on a judge’s resolution of these supposedly reason-based disagreements. They can have an even more profound affect on a jury’s decision. (That is the primary reason that there are so many rules on what can and cannot be said to a jury.)

lady_justice_not_blindIn spite of practical knowledge by the experienced, the myth continues in our profession that reasonability exists in some sort of objective, platonic plane of ideas, above all subjective influences. The just decision can be reached by deep, impartial reasoning. It is an article of faith in the legal profession, even though experienced trial lawyers and judges know that it is total nonsense, or nearly so. They know full well the importance of psychology and social norms. They know the impact of cognitive biases of all kinds, including, for example, hindsight biasSee Roitblat, The Schlemiel and the Schlimazel and the Psychology of Reasonableness (Jan. 10, 2014, LTN) (link is to republication by a vendor without attribution) (“tendency to see events that have already occurred as being more predictable than they were before they actually took place“); Also see Rimkus v Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010) (J. Rosenthal) (“It can be difficult to draw bright-line distinctions between acceptable and unacceptable conduct in preserving information and in conducting discovery, either prospectively or with the benefit (and distortion) of hindsight.” emphasis added); Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al., 685 F. Supp. 2d 456 (S.D.N.Y. Jan. 15, 2010 as amended May 28, 2010) at pgs. 463-464 (J. Scheindlin) (‘That is a judgment call that must be made by a court reviewing the conduct through the backward lens known as hindsight.” emphasis added).

In my conclusion to Reasonable Man article I summarized my thoughts and tried to kick off further discussion of this topic:

The myth of objectivity and the “Reasonable Man” in the law should be exposed. Many naive people still put all of their faith in legal rules and the operation of objective, unemotional logic. The system does not really work that way. Outsiders trying to automate the law are misguided. The Law is far more than logic and reason. It is more than the facts, the surrounding circumstances. It is more than evidence. It is about people and by people. It is about emotion and empathy too. It is about fairness and equity. It’s prime directive is justice, not reason.

That is the key reason why AI cannot automate law, nor legal decision making. Judge Charles (“Terry”) Haight could be augmented and enhanced by smart machines, by AI, but never replaced. The role of AI in the Law is to improve our reasoning, minimize our schlemiel biases. But the robots will never replace lawyers and judges. In spite of the myth of the Reasonable Man, there is far more to law then reason and facts. I for one am glad about that. If it were otherwise the legal profession would be doomed to be replaced by robots.

Bagley Two

Now let us see how Judge Haight once again helps prove the Reasonable Man points by his opinion in Bagley Two. Ruling On Plaintiff’s Motion To Compel (December 22, 2016), Bagely v. Yale, Civil Action No. 3:13-CV-1890 (CSH). In this opinion the reasonability of defendant Yale’s preservation efforts was considered in the context of a motion to compel discovery. His order again reveals the complexity and inherent subjectivity of all human reason. It shows that there are always multiple factors at work in any judge’s decision beyond just thought and reason, including an instinct born out of long experience for fairness and justice. Once again I will rely primarily on Judge Haight’s own words. I do so because I like the way he writes and because you need to read his original words to appreciate what I am talking about. But first, let me set the stage.

Reasonable_guageYale sent written preservation notices to sixty-five different people, which I know from thousands of matters is a very large number of custodians to put on hold in a single-plaintiff discrimination case. But Yale did so in stages, starting on March 1, 2013 and ending on August 7, 2014. Eight different times over this period they kept adding people to their hold list. The notices were sent by Jonathan Clune, a senior associate general counsel of Yale University. The plaintiff argued that they were too late in adding some of the custodians and otherwise attacked the reasonability of Yale’s efforts.

The plaintiff was not seeking sanctions yet for the suspected unreasonable efforts, they were seeking discovery from Yale as to details of these efforts. Specifically they sought production of: (1) the actual litigation hold notices; (2) the completed document preservation computer survey forms that were required to be returned to the Office of General Counsel by each Litigation Hold Recipient; and, (3) an affidavit detailing the retention and production for all non-ESI documents collected from each of the Litigation hold Recipients.

Yale opposed this discovery claiming any more information as to its preservation efforts was protected from discovery under the attorney-client privilege and attorney work product protection.  Yale also argued that even if the privileges did not apply here, the discovery should still be denied because to obtain such information a party must first provide convincing proof that spoliation in fact occurred. Yale asserted that the plaintiff failed to provide sufficient proof, or even any proof, that spoliation had in fact occurred.

Here is the start of Judge Haight’s evaluation of the respective positions:

Mr. Clune’s litigation hold notices stressed that a recipient’s failure to preserve pertinent documents could “lead to legal sanctions” against Yale. Clune was concerned about a possible sanction against Yale for spoliation of evidence. While Clune’s notices did not use the term, “spoliation” is a cardinal litigation vice, known by that name to trial lawyers and judges, perhaps unfamiliar to academics unable to claim either of those distinctions. Clune’s notices made manifest his concern that a trial court might sanction Yale for spoliation of evidence relevant to the University SOM’s decision not to reappoint Bagley to its faculty.

skull_bones_yaleNote the jab at academics. By the way, in my experience his observation is correct about the cluelessness of most law professors when it comes to e-discovery. But why does Judge Haight take the time here to point that out? This case did not involve the Law School. It involved the business school professors and staff (as you would expect). It is important to know that Judge Haight is a double Yale graduate, both undergraduate and law school. He graduated from Yale Law in 1955. He was even a member of Yale’s infamous of Skull and Bones society. (What does 322 really mean? Eulogia?) Perhaps there are some underlying emotions here? Judge Haight does seem to enjoy poking Yale, but he may do that in all his cases with Yale out of an eccentric kind of good humor, like a friendly shoulder punch. But I doubt it.

To be continued … 

One Response to Lawyers’ Job Security in a Near Future World of AI, the Law’s “Reasonable Man Myth” and “Bagley Two” – Part One

  1. […] This is the second and concluding section to the two-part blog, Lawyers’ Job Security in a Near Future World of AI, the Law’s “Reasonable Man Myth” and “Bagley Two.” Click here to read Part One. […]

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