legal profession | e-Discovery Team

From Centaurs To Cyborgs: Our evolving relationship with generative AI

April 24, 2024

Centaurs are mythological creatures with a human’s upper body, and a horse’s lower body. They symbolize a union of human intellect and animal strength. In AI technology, Centaurs refers to a type of hybrid usage of generative AI that combines human and AI capabilities. It does so by maintaining a clear division of labor between the two, like a centaur’s divided body. The Cyborgs by contrast have no such clear division and the human and AI tasks are closely intertwined.

Centaur idea by Ralph and execution in watercolor by his AI, ChatGPT4 Visual Muse version

A centaur method is designed so there is one work task for the human and another for the AI. For example, creation of a strategy is typically a task done by the human alone. It is separate task for the AI to write an explanation of the strategy devised by the human. The lines between the tasks are clear and distinct, just like the dividing line between the human and horse in a Centaur.

This concept is shown by the above image. It was devised by Ralph Losey and then generated by his AI ChatGPT4 model, Visual Muse. The AI had no part in devising the strategy and no part in the idea of putting the image of a Centaur here. It was also Ralph sole idea to have the human half appear in robotic form and to use a watercolor style of illustration. The AI’s only task was to generate the image. That was the separate task of the AI. Unfortunately, it turns out AI is not good at making Centaurs, especially ones with a robot top, instead of a human head, like the following image.

Classic Centaur in Photorealistic style by Ralph using Visual Muse

It made this image after only a few tries. But the first image of the Centaur with a robot top was a struggle. I can usually generate the image I have in mind, often even better than what I first conceived, in just a few prompts. But here, with a half robot Centaur, it took 118 attempts to generate the desired image! I tried many, many different prompts. I even used two different image generative programs, Dall-E and Midjourney. I tried 96 times with Midjourney (it generates fast) and never could get it to make a Centaur with a robot top half. But it did make quite a few funny mistakes, and a few scary ones too. Shown below are a few of the 117 AI bloopers. I note that overall Dall-E did much better that Midjourney, which never did seem to “get it.” The one Dall-E example of a blooper is bottom right, pretty close. The rest are all by Midjourney. I especially like the robot head on the butt of the the sort-of robot horse. It is the bass-ackwards version of what I requested!

After 22 tries with Dall-E I finally got it to make the image I wanted.

The point of this story is that the Centaur method failed to make the Centaur. I was forced to work very closely and directly with the AI to get the image I wanted, I was forced to switch to the Cyborg method. I did not want to, but the Cyborg method was the only way I could get the AI to make a Centaur with a robotic top. Back and forth I went, 118 times. The irony is clear. But there is a deeper lesson here that emerged from the frustration, which I will come back to in the conclusion.

Background on the Centaur and Cyborg as Images of Hybrid Computer Use

The idea to use the Centaur symbol to describe an AI method is credited to chess grand master, Garry Kasparov. He is famous in AI history for his losing battle in 1997 with IBM’s Deep Blue, He retired from chess competition immediately thereafter. Kasparov returned a few years later with computer in hand, with the idea that man and computer could beat any computer alone. It worked, a redemption of sorts. Kasparov ended up calling this Centaur team chess, where human-machine teams play each other online. It is still actively played today. Many claim it is still played at a level beyond that of any supercomputer today, although this is untested. See e.g. The Real Threat From ChatGPT Isn’t AI…It’s Centaurs (PCGamer, 2/13/23).

The use of the term Centaur was expanded and explained by Harvard Professor, Soroush Saghafian, in his article Effective Generative AI: The Human-Algorithm Centaur (Harvard DASH, 10/2023). He explains the hybrid relationship as one where the unique powers of intuition of humans are added to those of artificial intelligence. In a medical study he did at his Harvard lab with the Mayo Clinic they analyzed the results of doctors using LLM AI in a centaur-type model. The goal was to try to reduce readmission risks for a patients who underwent organ transplants.

We found that combining human experts’ intuition with the power of a strong machine learning algorithm through a human-algorithm centaur model can outperform both the best algorithm and the best human experts. . . .

In this article, we focus on recent advancements in Generative AI, and especially in Large Language Models (LLMs). We first present a framework that allows understanding the core characteristics of centaurs. We argue that symbiotic learning and incorporation of human intuition are two main characteristics of centaurs that distinguish them from other models in Machine Learning (ML) and AI.

Id. at pg. 2

The Cyborg model is a slightly different in that man and machine work even more closely together. The concept of a cyborg, a mechanical man, also has its origins with the ancient Greek myths: Talos. He was supposedly a giant bronze mechanical man built by Hephaestus, the Greek god of invention, blacksmithing and volcanos. The Roman equivalent God was Vulcan, who was supposedly ugly, but there are no stories of his having pointy ears. You would think that techies might seize upon the name Vulcan, or Talos, to symbolize the other method of hybrid AI use, where tasks are closely connected. But they did not, they went with the much more modern day term – Cyborg.

The word was first coined in 1960 (before StarTrek) by two dreamy AI scientists who combined the root words CYBernetic and ORGanism to describe a being with both organic and biomechatronic body parts. Here is Ralph Losey’s image of a Cyborg, which, again ironically, he created quickly with a simple Centaur method in just a few tries. Obviously the internet, which trained these LLM AIs, has many more cyborg-like android images than centaurs.

Cyborg image created in detailed photorealistic style by Losey.

More On the Cyborg Method

The Cyborg method supposedly has no clear cut divisions between human and AI work, like the Centaur. Instead, Cyborg work and tasks are all closely related, like a cybernetic organism. People and ChatGPTs usual say that the Cyborg approach involves a deep integration of AI into the human workflow. The goal is a blend where AI and human intelligences constantly interact and complement each other. In contrast to the Centaur method, the Cyborg does not distinctly separate tasks between AI and humans. For instance, in Cyborg a human might start a task, and AI might refine or advance it, or vice versa. This approach is said to be particularly valuable in dynamic environments where continuous adaptation and real-time collaboration between human and AI are crucial. See e.g. Center for Centaurs and Cyborgs OpenAI GPT version (Free GPT version by Community Builder that we recommend. Try asking it more about Cyborgs and Centaurs). Also see: Emily Reigart, A Cyborg and a Centaur Walk Into an Office (NAB Amplify, 9/24/23); Ethan Mollick, Centaurs and Cyborgs on the Jagged Frontier: I think we have an answer on whether AIs will reshape work (One Useful Thing, 9/16/23).

Ethan Mollick is a Wharton Professor who is heavily involved with hands-on AI research in the work environment. To quote the second to last paragraph of his article (emphasis added):

People really can go on autopilot when using AI, falling asleep at the wheel and failing to notice AI mistakes. And, like other research, we also found that AI outputs, while of higher quality than that of humans, were also a bit homogenous and same-y in aggregate. Which is why Cyborgs and Centaurs are important – they allow humans to work with AI to produce more varied, more correct, and better results than either humans or AI can do alone. And becoming one is not hard. Just use AI enough for work tasks and you will start to see the shape of the jagged frontier, and start to understand where AI is scarily good… and where it falls short.

Asleep at the Wheel

Obviously, falling asleep at the wheel is what we have seen in the hallucinating AI fake citations cases. Mata v. Avianca, Inc., 22-cv-1461 (S.D.N.Y. June 22, 2023) (first in a growing list of sanctioned attorney cases). Also see: Park v. Kim, 91 F.4th 610, 612 (2d Cir. 2024). But see: United States of America v. Michael Cohen (SDNY, 3/20/24) (Cohen’s attorney not sanctioned. “His citation to non-existent cases is embarrassing and certainly negligent, perhaps even grossly negligent. But the Court cannot find that it was done in bad faith.”)

These lawyers were not only asleep at the wheel, they had no idea what they were driving, nor that they needed a driving lesson. It is not surprising they crashed and burned. It is like the first automobile drivers who would instinctively pull back on the steering wheel in an emergency to get their horses to stop. That may be the legal profession’s instinct as well, to try to stop AI, to pull back from the future. But it is shortsighted, at best. The only viable solution is training and, perhaps, licensing of some kind. These horseless buggies can be dangerous.

Cyborg style Centaur by Losey using Visual Muse GPT.

Skilled legal professionals who have studied prompt engineering, either methodically or through a longer trial and error process, write prompts that lead to fewer mistakes. Strategic use of prompts can significantly reduce the number and type of mistakes. Still, surprise errors by generative AI cannot be eliminated altogether. Just look at the trouble I had generating a half robot Centaur. LLM language and image generators are masters of surprise. Still, with hybrid prompting skills the surprise results typically bring more delight than fright.

Centaur watercolor image unintentionally generated by Losey.

That was certainly the case in a recent study by Professor Ethan Mollick and several others on the impact of AI hybrid work. Navigating the Jagged Technological Frontier: Field Experimental Evidence of the Effects of AI on Knowledge Worker Productivity and Quality (Harvard Business School, Working Paper 24-013). I will write a full article on this soon. As a quick summary, researchers from multiple schools collaborated with the Boston Consulting Group and found a surprisingly high increase in productivity by consultants using AI. The study was based on controlled tests of a AI hybrid team approach to specific consulting work tasks. The results also showed that, even though the specific work tasks tested were performed much faster, the quality was maintained, and for some consultants, increased significantly.

Although we do not have a formal study yet to prove this, it is the supposition of most everyone in the legal profession that is now using AI, that lawyers can also improve productivity and maintain quality. Of course, careful double-checking of AI work product is required to catch errors to maintain quality. This applies not only the obvious case hallucinations, but also to what Professor Mollick called AI’s tendency to be “homogenous and same-y in aggregate” writing. Also See: Losey, Stochastic Parrots: How to tell if something was written by an AI or a human? (common “tell” words used way too often by generative AIs). Lawyers who use AI attentively, without over-delegation to AI, can maintain high quality work, meet all of their ethical duties, and still increase productivity.

The hybrid approach to use of generative AI, both Centaur and Cyborg, have been shown to significantly enhance consulting work. Many legal professionals using AI are seeing the same results in legal work. Lawyers using AI properly can significantly increase productivity and maintain quality. For most of the Boston Consulting Group consultants tested, their quality of work actually went up. There were, however, a few exceptional outliers whose test quality was already at the top. The AI did not make the work of these elite few any better. The same may be true of lawyers.

Surreal impressionistic image of lawyers using AI by Losey.

Transition form Centaur to Cyborg

Experience shows that lawyers who do not use AI properly, typically by over-delegation and inadequate supervision, may increase productivity, but do so at the price of increased negligent output. That is too high a price. Moreover, legal ethics, including Model Rule 1.1, requires competence. I conclude, along with most everyone in the legal profession, that stopping the use of AI by lawyers is futile, but at the same time, we should not rush into negligent use of this powerful tool. Lawyers should go slow and delegate to AI on a very limited basis at first. That is the Centaur approach. Again, like most everyone else, my opinion is to start slow and begin to use AI in a piecemeal fashion. For that reason you should begin now and avoid death by committee, or as lawyers like to call it, paralysis by analysis.

Then, as your experience and competence grows, slowly increase your use of generative AI and experiment with applying it to more and more tasks. You will start to be more Cyborg like. Soon enough you will have the AI competitive edge that so many outside experts over-promise.

Vendors and outside experts can be a big help in implementing generative AI, but remember, this is your legal work. For software, look at the subscription license terms carefully. Note any gaps between what marketing promises and the superseding agreements deliver. Pick and choose your generative AI software applications carefully. Use the same care in picking the tasks to begin to implement official AI usage. You know your practice and capabilities better than any outside expert offering cookie-cutter solutions.

Use the same care and intelligence in selecting the best, most qualified people in your firm or group to train and investigate possible purchases. Here the super-nerds should rule, not the powerful personalities, nor even necessarily the best attorneys. New skill sets will be needed. Look for the fast learners and the AI enthusiasts. Start soon, within the next few months.

Cyborg in watercolor style generated with easy by Visual Muse

Conclusion

According to Wharton Professor Ethan Mollick, secret use and false claims of personal work product have already begun in many large corporations. In his YouTube at 53:30 he shares a funny story of a friend in a big bank. She secretly uses AI all of the time to do her work. Ironically, she was the person selected to write a policy to prohibit the use of AI. She did as requested, but did not want to be bothered to do it herself, so she directed a GPT on her personal phone do it. She sent the GPT written policy prohibiting use of GPTs to her corporate email account and turned it in. The clueless boss was happy, probably impressed by how well it was written. Mollick claims that secret, unauthorized use of AI in big corporations is widespread.

This reminds me of the time I personally heard the GC of a big national bank, now defunct, proudly say that he was going to ban the use of email by his law department. We all smiled, but did not say no to mister big. After he left, we LOL’ed about the dinosaur for weeks. Decades later I still remember it well.

Centaur and Cyborg moving confidently into future legal work.

So do not be foolish or left behind. Proceed expeditiously, but carefully. Then you will know for yourself, from first-hand experience, the opportunities and the dangers to look out for. And remember, no matter what any expert may suggest to the contrary, you must always supervise the legal work done in your name.

There is a learning curve in the careful, self-knowledge approach, but eventually the productivity will kick in, and with no loss of quality, nor embarrassing public mistakes. For most professionals, there should also be an increase in quality, not just quantity or speed of performance. In some areas of practice, there may be both a substantial improvement in productivity and quality. It all depends on the particular tasks and the circumstances of each project. Lawyers, like life, are complex and diverse with ever changing environments and facts.

Fast moving group of tech lawyers. Midjourney photo image

My image generation failure is a good example. I expected a Centaur like delegation to AI would result in a good image of a Centaur with a robotic top half. Maybe I would need to make a few adjustments and tries, but I never would have guessed I would have to make 118 attempts before I got it right. My efforts with Visual Muse and Midjourney are typically full of pleasant surprises, with only a few frustrating failures. (Although the failure images are sometimes quite funny.) So I was somewhat surprised to have to spend an hour to bring my desired cyber Centaur to life. Somewhat, but not totally surprised. I know from experience that just happens sometimes with generative AI. It is the nature of the beast. Some uncertainty is a certainty.

As is often the case, the hardship did lead to a new insight into the relationship between the two types of hybrid AIs — Centaur and Cyborg. I realized they are not a duality, but more of a skill-set evolution. They have different timings, purposes and require different prompting skill levels. On a learning curve basis, we all start as Centaurs. With experience we slowly become more Cyborg like. We can step in with close Cyborg processes when the Centaur approach does not work well for some reason. We can cycle in and out between the two hybrid approaches.

There is a sequential reality to first use. Our adoption of generative AI should begin slowly, like a Centaur, not a Cyborg. It should be done with detachment and separation into distinct, easy tasks. Also you should start with the most boring repetitive tasks first. See eg. Ralph Losey’s GPT model, Innovation Interviewer (work in progress, but available at the ChatGPT store).

Cyborg riding a Centaur lawyer into the future.

Our mantra as a beginner Centaur should be a constant whisper of trust, but verify. Check the AI work, learn the mistakes and impose policy and procedures to guard against them. That is what good Centaurs do. But as personal and group expertise grows, the hybrid relations will naturally grow stronger. We will work closer and closer with AI over time. It will be safe and ethical to speed up because we will learn its eccentricities, its strengths and weaknesses. We will begin to use AI in more and more work tasks. We will slowly, but surely, transform into a cyborg work style. Still, as legal professionals, our work will be ever mindful of our duties to client and courts.

More machine attuned than before, we will become like Cyborgs, but still remain human. We will step into a Cyborg mind-set to get the job done, but will bring our intuition, feelings and other special human qualities with us.

Future lawyers wearing AI glasses in digital art style.

I agree with Ray Kurzweil that we will ultimately merge with AI, but disagree that it will come by nanobots in your blood or other physical alterations. I think it is much more likely to come from wearables, such as special glasses and AI connectivity devices. It will be more like the 2013 movie HER, which is Sam Altman’s favorite, with an AI operating system and constant companion cell-phone (the inseparable cell phone part has already come true). It will, I predict, be more like that, than the wearables shown in the Avengers movies, the Tony Stark flying Iron Man suit.

But probably it will look nothing like either of those Hollywood visions. The real future has yet to be invented. It is in your hands.

Hybrid hands creating future. By Ralph using Visual Muse.

2 Comments | AI Ethics, AI Instruction, AI Prompt Engineering Instruction, Lawyers Duties, Technology, VENDORS | Tagged: best practices, legal profession, machine learning, technology | Permalink
Posted by Ralph Losey

Plato and Young Icarus Were Right: do not heed the frightening shadow talk giving false warnings of superintelligent AI – Part One

December 5, 2023

Advanced intelligence from AI should be embraced, not feared. We should speed up AI development, not slow it down. We should move fast and fix things while we still can. Fly Icarus, fly! Your Dad was wrong.

Plato’s Allegory of the Cave and the Mere Shadow Story of the Traditional Icarus Myth

Plato rejected the old myths and religion of ancient Greece, including that of Daedalus and Icarus, to embrace reason and science. Ironically, this myth is now relied upon by contemporary scientists like Max Tegmark as propaganda to try to stop AI development. Icarus supposedly perished by using the wings invented by his father, Daedalus, when he tried to fly to the sun. In this discouraging tale, Icarus did not make it to the sun. This myth is of a son’s supposed hubris to ignore his father’s warning not to fly so high. The reliance today on this myth to instill fear of great progress is misplaced. Here I present an alternative ending in accord with Plato where the father is encouraging, and the son makes it to the sun. In my rewrite, Daedalus’ invention succeeds beyond his wildest dreams. Icarus bravely flys to the sun and succeeds. He attains superintelligence and safely returns home, transformed, well beyond the low IQ cave.

This alternative is inspired by Plato and his Allegory of the Cave, where he prompts Socrates to chat about a prisoner stuck his whole life in a cave. In this cave everyone mistakes for reality the shadows on the wall cast by a small fire. The cave in my mixed retelling represents limited human intelligence, unaugmented by AI superintelligence. Eventually, one person is able to escape the cave, here that is Icarus, and he is illuminated by the light of the Sun. He attains freedom and gains previously unimaginable insights into reality. He links with superintelligence. It is bravery, not hubris, to seek the highest goals of intellectual freedom.

The illustrations here express this theme in several artistic styles, primarily classical, impressionistic, digital and surrealistic. They were created using my GPT plugin, Visual Muse.

Image of successful Icarus in combined digital impressionistic style using Visual Muse.

The myth of Icarus, where the wings melt and he dies in his quest, is a fear-based story meant to scare children into obedience. The myth is ancient propaganda to maintain control and preserve the status quo, to con people into being satisfied with what they have and seek nothing better. It is disturbing to see the otherwise brilliant, MIT scientist, Max Tegmark, invoke this myth to conclude his recent Ted Talk. His speech tries to persuade people to fear superintelligent AI and support the slow down of development of AI, lest it kill us all! Tegmark preaches contentment with the AI we already have, that we must stop now, and not keep going to the sun of AGI and beyond. He speaks from his limited shadow knowledge as a frightened father of the AI Age. Relax Max, your children will make the journey no matter what you say. Youth is bold. Have confidence in the new AI you helped to invent.

Excerpt from How to Keep AI Under Control, Max Tegmark, TED Talk at 11:39-12:03

Like many others, I say we must keep going. After millennia of efforts and trust in reason, we must not lose our nerve now. We must fly all the way to the sun and return enlightened.

The reliance today on the failed invention myth of Icarus is misplaced. We should not stoke public fear of the unknown to prevent change. These arguments at the end of the careers of otherwise genius scientists like Max Tegmark are unworthy. They should remember the inspiration of their youth, when they boldly began to promote the wings of super intelligence.

Sadly, Geoffrey Hinson, the great academic who first invented the wings of generative AI, has also turned back on the brink of success. In 2023, as his wings finally took flight, he stopped work, left his position at Google and assumed the role of Casandra. Since the summer of 2023 he now only speaks of doom and gloom, if construction of his wings are completed. See e.g. “Godfather of AI” Geoffrey Hinton: The 60 Minutes Interview.

Neither one of these genius scientists seem to grasp the practical urgency of the world’s present needs. We cannot afford to wait. Civilization is falling and the environment is failing. We must move fast and fix things.

Plato was right to reject these fear based myths, to instead encourage progress and the brave journey to the bright light of reason. There is far more to fear from misguided human intelligence in the present, than from any superintelligence in the future.

Plato and Socrates teach us to embrace intelligence, to embrace the light, not fear it. Plato’s Allegory of the Cave is the cornerstone of Western Civilization, the culture that led to the inventions of AI. Plato teaches that:

Superstitious myths like Daedalus and Icarus are just the shadows on the cave wall.
We should reject the old gods of fear and embrace reason and dialogue instead. (Socrates was killed for that assertion.)
It is bravery, not hubris, to seek escape from the cave of dimwitted cultural consensus.
Human intelligence is but a dim firelight, and for that reason, our beliefs of reality, such as belief in “Terminator AIs,” are mere shadows on the wall.

Plato urged humans to escape their prison of limited intelligence and boldly leave the cave, to discover the Sun outside, to embrace superintelligence. See e.g. The Connection Between Plato’s Cave Allegory and Electronic Discovery Law.

Leaving Plato’s cave of limited, unaugmented human intelligence. Digital futuristic style image using Visual Muse.

Combined digital futurism and surrealistic fantasy style image of Plato’s Cave using Visual Muse.

The path of reason is open to all who grasp the clear and present dangers of the status quo, of continued life in the cave without the light of AGI. We should follow the guidance of Plato and Socrates, not that of the fearful shadow myth of Daedalus and Icarus. We should fly to the sun and embrace superintelligence, not shy away from it in fear. We should boldly go where no Man has gone before, find superintelligence, use it, merge with it and become one with the Sun. It will not burn, it will enlighten.

The guiding light of superintelligence is represented by the Sun in digital futurism style using Visual Muse.

Then, following Plato’s allegory, we will return back to the cave, still one with AGI, and speak with those imprisoned within, those blinded by their own human limitations. We will return to try to help them to escape, help them free themselves from shadow-based fears and drudgery, help them to see the light and link with super AI. We will return with hybrid AGI to help free mankind, not kill everyone as the shadows readers declare. They are afraid of their own shadows.

Speed Up AI Before It’s Too Late

Unfortunately, the speed up position expressed here is currently a minority view, but there are a few brave scientists willing to speak up and support the no-fear, accelerationist position. The image of Hermes, the Greek messenger god, known for his speed and cleverness, seems appropriate to many.

Hermes running to the Sun in Digital Futurism style using Visual Muse.

The stop or slow down AI development proponents are, in the opinion of many, very naive. It cannot be stopped. The militaries of the world are fearful of falling behind. Based on what I see the fear of super AI in the wrong hands is justified. Fear the people, not the tools.

Hermes in pencil sketch style using Visual Muse.

Moreover, the world is already such a mess, especially with the ongoing environmental damages, that we have no choice but to seek the help of advanced AI to help fix this. Move fast and fix things should be the new motto. The world is already broken. Adding more intelligence to the mix is likely to help, not make things worse. We need superintelligence to clean up the incredible mess created by human stupidities.

Like many others, I have sincere concerns about how we’re going to survive the coming years without the help of AGI. The train to world destruction has already left the station, we have no choice but to take whatever measures are necessary to try stop the train wreck. Future generations are depending upon us. No one can figure out how to do it now with the tools we have. We need new tools of superintelligence to help us to figure a way out.

Futuristic digital style image using Visual Muse of AI robots repairing environmental damage.

There are a number of other other reasons that it would be a mistake to slow down now, some of which will be addressed next through the word of other scientists who agree with the keep on accelerating position. But before I switch to their wisdom in Part Two of this article, I must point out another fundamental error made by some of the slow-downers. They seem guilty of thinking of AI as a creature, not a tool. Not only that, but they think of it as an immoral creature, which, although superintelligent, still thinks nothing of wiping out us puny humans. Oh, please. That is a fanciful misinterpretation of evolution. See e.g. The Insights of Neuroscientist Blake Richards.

AI is just a tool, not a creature! The fear mongers falsely assume that superintelligence will magically turn computers into creatures. That is so wrong. Moreover, the next thought that the superintelligent entity we created would then want to destroy the world, or worse, do so by accident, is laughably absurd. That is how fearful humans behave, not superintelligent computers.

“Tool, Not a Creature” video created using various AI tools in early Fall, 2023.

Final thought is a concession to the other side of the debate. There definitely is need for some regulation of AI and AGI. No one disputes that. But regulation should not include an intentional slow down or pause of technological development. It is impossible to do that anyway, and most regulators in the U.S. understand that. See: White House Obtains Commitments to Regulation of Generative AI from OpenAI, Amazon, Anthropic, Google, Inflection, Meta and Microsoft.

But we can pause the conclusion of this blog for a few days and so here ends Part One.

Coming next, in Part Two, the work and words of several AI leaders who support the “move fast and fix things” view will be shared. In the meantime friends, do not be put off by all the naysayers out there. Keep using AI and keep reaching for the sun.

Minimalist line art style using Visual Muse.

6 Comments | AI Ethics, knowledge, Technology, VENDORS, wisdom | Tagged: ai, AI regulation, chatGPT, future, genai, legal profession, Ray Kurzweil, science, technology | Permalink
Posted by Ralph Losey

Abraham Lincoln, America’s First Tech-Lawyer

February 19, 2023

Close up of Lincoln's face on April 10, 1865

Abraham Lincoln was born on February 12, 1809. He was probably our greatest President. Putting aside the tears honest Abe would likely shed over the political scene today, it is good to remember Lincoln as an exemplar of a U.S. lawyer. All lawyers would benefit from emulating aspects of his Nineteenth Century legal practice and Twenty First Century thoughts on technology. He was honest, diligent, a deep thinker and ethical. He did not need to be lectured on Cooperation and Rule 1. He also did not need to be told to embrace technology, not hide from it. In fact, he was a prominent Tech-Lawyer of his day, well known for his speaking abilities on the subject.

He was also a man with a sense of humor who knew how to enjoy himself. I think he would have approved of the video below. I made this of him using GPT technologies to express one of my life mottoes, inspired by him. He is a personal hero. Did you know he had a high pitched voice? Here I try to imitate what he might have sounded like. There are no recordings of his speech, just written accounts.

Near the end of his legal career Abe was busy pushing technology and his vision of the future. Sound familiar dear readers? It should. Many of you are like that. I know I am.

Lincoln Was a Technophile

Lincoln was as obsessed with the latest inventions and advances in technology as any techno-geek e-discovery lawyer alive today. The latest things in Lincoln’s day were mechanical devices of all kinds, typically steam-powered, and the early electromagnetic devices, then primarily the telegraph. Indeed, the first electronic transmission from a flying machine, a balloon, was a telegraph sent from inventor Thaddeus Lowe to President Lincoln on June 16, 1861. Unlike Lincoln’s generals, he quickly realized the military potential of flying machines and created an Aeronautics Corps for the Army, appointing Professor Lowe as its chief. See Bruce, Robert V., Abraham Lincoln and the Tools of War. Below is a copy of a handwritten note by Lincoln introducing Lowe to General Scott.

Lincoln's handwritten introduction of Professor Lowe

At the height of his legal career, Lincoln’s biggest clients were the Googles of his day, namely the railroad companies with their incredible new locomotives. These newly rich, super-technology corporations dreamed of uniting the new world with a cross-country grid of high speed transportation. Little noticed today is one of Lincoln’s proudest achievements as President, the enactment of legislation that funded these dreams, the Pacific Railway Act of 1862. The intercontinental railroad did unite the new world, much like the Internet and airlines today are uniting the whole world. A lawyer as obsessed with telegraphs and connectivity as Lincoln was would surely have been an early adopter of the Internet and an enthusiast of electronic discovery. See: Abraham Lincoln: A Technology Leader of His Time (U.S. News & World Report, 2/11/09). No doubt he would be using Chat GPT to help with his mundane paperwork (but not his speeches).

Abraham Lincoln loved technology and loved to think and talk about the big picture of technology, of how it is used to advance the dreams of Man. In fact, Lincoln gave several public lectures on technology, having nothing to do with law or politics. The first such lecture known today was delivered on April 6, 1858, before the Young Men’s Association in Bloomington, Illinois, and was entitled “Lecture on Discoveries and Inventions.” In this lecture, he traced the progress of mankind through its inventions, starting with Adam and Eve and the invention of the fig leaf for clothing. I imagine that if he were giving this speech today (and I’m willing to try to replicate it should I be so invited) he would end with AI and blockchain.

In Lincoln’s next and last lecture series first delivered on February 11, 1859, known as “Second Lecture on Discoveries and Inventions,” Lincoln used fewer biblical references, but concentrated instead on communication. For history buffs, see the complete copy of Lincoln’s Second Lecture, which, in my opinion, is much better than the first. Here are a few excerpts from this little known lecture:

The great difference between Young America and Old Fogy, is the result of Discoveries, Inventions, and Improvements. These, in turn, are the result of observation, reflection and experiment.

Writing – the art of communicating thoughts to the mind, through the eye – is the great invention of the world. Great in the astonishing range of analysis and combination which necessarily underlies the most crude and general conception of it, great, very great in enabling us to converse with the dead, the absent, and the unborn, at all distances of time and of space; and great, not only in its direct benefits, but greatest help, to all other inventions.

I have already intimated my opinion that in the world’s history, certain inventions and discoveries occurred, of peculiar value, on account of their great efficiency in facilitating all other inventions and discoveries. Of these were the arts of writing and of printing – the discovery of America, and the introduction of Patent-laws.

Can there be any doubt that the lawyer who wrote these words would instantly “get” the significance of the total transformation of writing, “the great invention of the world,” from tangible paper form, to intangible, digital form? Can there be any doubt that a lawyer like this would understand the importance of the Internet, the invention that unites the world in a web of inter-connective writing, where each person may be a printer and instantly disseminate their ideas “at all distances of time and of space?”

Lincoln standing by his generals in the field; close up

Abraham Lincoln did not just have a passing interest in new technologies. He was obsessed with it, like most good e-discovery lawyers are today. In the worst days of the Civil War, the one thing that could still bring Lincoln joy was his talks with the one true scientist then residing in Washington, D.C., the first director of the Smithsonian Institution, Dr. Joseph Henry, a specialist in light and electricity. Despite the fact that Henry’s political views were anti-emancipation and virtually pro-secession, Lincoln would sneak over to the Smithsonian every chance he could get to talk to Dr. Henry. Lincoln told the journalist, Charles Carleton Coffin:

My visits to the Smithsonian, to Dr. Henry, and his able lieutenant, Professor Baird, are the chief recreations of my life…These men are missionaries to excite scientific research and promote scientific knowledge. The country has no more faithful servants, though it may have to wait another century to appreciate the value of their labors.

Bruce, Lincoln and the Tools of War, p. 219.

Lincoln was no mere poser about technology and inventions. He walked his talk and railed against the Old Fogies who opposed technology. Lincoln was known to be willing to meet with every crackpot inventor who came to Washington during the war and claimed to have a new invention that could save the Union. Lincoln would talk to most of them and quickly separate the wheat from the chaff. As mentioned, he recognized the potential importance of aircraft to the military and forced the army to fund Professor Lowe’s wild-eyed dreams of aerial reconnaissance. He also recognized another inventor and insisted, over much opposition, that the army adopt his new invention: Dr. Richard Gatling. His improved version of the machine gun began to be used by the army in 1864, and before that, the Gattling guns that Lincoln funded are credited with defending the New York Times from an invasion by “anti-draft, anti-negro mobs” that roamed New York City in mid-July 1863. Bruce, Lincoln and the Tools of War, p. 142.

As final proof that Lincoln was one of the preeminent technology lawyers of his day, and if he were alive today, surely would be again, I offer the little known fact that Abraham Lincoln is the only President in United States history to have been issued a patent. He patented an invention for “Buoying Vessels Over Shoals.” It is U.S. Patent Number 6,469, issued on May 22, 1849. I could only find the patent on the USPTO web, where it is not celebrated and is hard to read. So as my small contribution to Lincoln memorabilia in the bicentennial year of 2009, I offer the complete copy below of Abraham Lincoln’s three page patent. You should be able to click on the images with your browser to enlarge and download.

The invention consisted of a set of bellows attached to the hull of a ship just below the water line. After reaching a shallow place, the bellows were to be filled with air that buoyed the vessel higher, making it float higher and off the river shoals. The patent application was accompanied with a wooden model depicting the invention. Lincoln whittled the model with his own hands. It is on display at the Smithsonian and is shown below.

Lincoln Hand-Carved Wooden Model of Patent

Lincoln Filing Invention at Patent Office (fictionalized depiction)

Conclusion

On President’s Day 2023 it is worth recalling the long, prestigious pedigree of Law and Technology in America. Lincoln is a symbol of freedom, emancipation. He is also a symbol of Law and Technology. If Abe were alive today, I have no doubt he would be, among other things, a leader of Law and Technology.

Stand tall friends. We walk in long shadows and, like Lincoln, we shall overcome the hardships we face. As Abe himself was fond of saying: down with the Old Fogies; it is young America’s destiny to embrace change and lead the world into the future. Let us lead with the honesty and integrity of Abraham Lincoln. Nothing less is acceptable.

1 Comment | Evidence, knowledge, Lawyers Duties, Technology, wisdom | Tagged: ethics, justice, law, legal profession, Lincoln, technology | Permalink
Posted by Ralph Losey

Jerry Seinfeld Meets eDiscovery: Rules of the Game and the Pony Scene

May 14, 2022

I could not resist writing about a new case that mentions electronic discovery (yes, I have a standing Lexis search), not because it creates any kind of great precedent or anything, but because it involves one of my all-time favorite comedians, Jerry Seinfeld. Charles v. Seinfeld, 2022 U.S. Dist. LEXIS 54387, Case No. 18-cv-1196 (AJN), (SDNY, April 29, 2022). The opinion is by Judge Alison Julie Nathan, who was sitting by designation after her elevation on March 30, 2022, to the Second Circuit Court of Appeals. The opinion itself, is, with all due respect, kind of like the Seinfeld’s series. It is not about anything terribly important. It’s not about much really. But still, I found it very funny in a cynical, jealous lawyer sort of way and it does have an important, between the lines, message. Read on if you are into that sort of thing.

Rules of the Game

To lay the proper groundwork for this blog about Seinfeld (personal opinions only), I have to start by sharing, for fair use educational purposes only, one of my favorite Jerry Seinfeld quotes. You’ve all heard it, the one about lawyers and judges. It explains my photo.

“What are lawyers, really? To me a lawyer is basically the person that knows the rules of the country. We’re all throwing the dice, playing the game, moving our pieces around the board, but if there’s a problem, the lawyer is the only person that has read the inside of the top of the box. I think one of the fun things for them is to say, ‘objection.’ ‘Objection! Objection, Your Honor.’ Objection, of course, is the adult version of, ‘’fraid not.’ To which the judge can say two things, he can say, ‘overruled’ which is the adult version of ‘’fraid so,’ or he could say, ‘sustained,’ which is the adult version of ‘Duh.’”
Jerry Seinfeld, Seinfeld, Season 4: The Visa

Who Wouldn’t Love A Pony ?

I have seen every episode of Seinfeld many times. The famous Pony scene in Season 2, Episode 2, immediately came to mind when I read Charles v. Seinfeld. As you read on, see if you can figure out why that popped into my head. In case you don’t have instant recall of this great, family dinner table scene, check out this excerpt on YouTube. Better yet, treat yourself and watch the whole episode. It’s one of the best.

Before I do a fair use educational quote of the Pony script, let me share another Seinfeld quote, one that is supposedly serious. Being the naive idealist that I am, I believe it. Anyway, Jerry is credited with saying: “I like money, but it’s never been about the money.” I get that, as I truly feel the same way. Still, I do like money as much as the next person, maybe even the next lawyer (nah, probably not), and money is what Charles v. Seinfeld is all about. It considers a request for an award of fees and costs in favor of the prevailing party, Jerry Seinfeld, which includes costs of $32,692.21 for electronic discovery database hosting fees. Charles v. Seinfeld at *18 (by the way, check out Fn 5 on that page for a great Seinfeld-like note by the obviously very sharp, Judge Nathan: “There is a $0.30 discrepancy in the costs requested ($100,918.71) and the sum of the component costs.”)

Here are the lines and scene that came to mind when I read Charles v. Seinfeld. First, to set the stage, Manya is an elderly Jewish immigrant relative who is hosting a family dinner that Jerry and Elaine were roped into attending. Jerry and Elaine were bored and wanted to leave. At Elaine’s prodding, Jerry started to rant about children who had ponies.

Elaine: What about Ponies huh? What kind of abnormal animal is that? And those kids who had their own ponies.
Jerry: I know. I hated those kids. In fact, I hate anyone that ever had a pony when they were growing up.
Manya: I had a pony!
Jerry: Well, I didn’t mean a pony per se
Manya: When I was a little girl in Poland, we all had ponies. My sister had pony, my cousin had pony. So, what’s wrong with that?
Jerry: Nothing. Nothing at all. I was just expressing
Helen: Should we have coffee? Who’s having coffee?
Manya: He was a beautiful pony. And I loved him!
Jerry: Well, I’m sure you did. Who wouldn’t love a pony? Who wouldn’t love a person who had a pony?
Manya: You! You said so!
Jerry Seinfeld, Seinfeld, Season 2, Episode 2.

At the end of this scene, Manya storms out, very upset at Jerry, saying “That’s it! I had enough!” Unfortunately, Jerry learns the next day that Manya died later that night.

Charles v. Seinfeld: A Run of the Mill Frivolous Copyright Case

If you are really interested (I’m not) in the dubious merits of the case, see the 2019 order granting the defendants’ motion to dismiss (Fraid-so!) by then District Court Judge Nathan. Charles v. Seinfeld, 410 F. Supp. 3d 656, 2019 U.S. Dist. LEXIS 169543, 2019 WL 4805684 (S.D.N.Y., Sept. 30, 2019). It is enough for my purposes to hear Judge Nathan’s later summary of the case in her April 29, 2022 order ruling on defendants’ motion for attorneys’ fees and costs under 17 U.S.C. § 505.

Plaintiff Christian Charles, an award-winning writer, director, and producer, alleged copyright claims against Jerry Seinfeld and several related Defendants related to the show Comedians in Cars Getting Coffee. The Court ultimately dismissed the second amended complaint on statute-of-limitations grounds, explaining [*2] that Charles was on notice of his claims since at least 2012 but did not file suit until 2018, far outside the three-year statute of limitations for such claims. Id. at 8.
Charles v. Seinfeld, 2022 U.S. Dist. LEXIS 54387, Case No. 18-cv-1196, *1-2, at pg. 5 of 13, (SDNY, April 29, 2022),

The Second Circuit affirmed (Fraid not. Duh!) the Sept. 30, 2019 dismissal on June 18, 2020. The obvious Statute of Limitations winner, Jerry Seinfeld, et al, then moved for fees. That’s when the real fun began. To get an award of fees under the copyright statute Seinfeld’s attorneys had to show that Charles’s claims were objectively unreasonable. They failed to convince the Magistrate (Fraid not!) who was assigned to hear their motion for fees and costs, Judge Katharine H. Parker.

Seinfeld then objected to Judge Parker’s Report and Recommendation and Judge Nathan agreed (Fraid so. Duh!) with Seinfeld. Judge Nathan concluded that Charles’s claims were objectively unreasonable and that other relevant factors favored awarding Defendants’ attorneys’ fees. Id. She ordered Charles to file a brief on “the amount of the fee award,” with particular attention to the relative financial strength of the parties. Id.

Charles didn’t do that, instead he re-argued the merits of the Magistrate Judge’s report and recommendation denying any award at all. That usually upsets a judge, but here, Judge Nathan, now an appellate judge sitting by designation to wrap up old business, showed great restraint. She heard the procedurally improper, caveman lawyer type motion for rehearing and ruled on it here. She denied the rehearing argument (Duh!) and went on to address the issue of the amount of the award with no help from Charles. Id. at *3-5 at pgs. 5-6 of 13. Who knows, that might have been a smart move on his part.

Seinfeld Attorney’s Fee and Costs Motion – Those Are Some Expensive Ponies!

Before we get to the ponies, remember that this case was decided on a motion to dismiss. There was no discovery. None. Yet, somehow Seinfeld’s attorneys incurred costs of $32,692.21 for electronic discovery database hosting. Hmm. They moved for an award of these costs and, of course, the motion was denied. They got nada, because, as all ediscovery lawyers know, the ancient federal costs award statute does not allow for ediscovery costs. Moreover, as Judge Nathan patiently explained, instead of just saying duh:

Similarly, the electronic database hosting fees are [*19] very high and not properly imposed on Charles in a case that did not proceed to discovery. Defendants of course had an obligation to preserve relevant documents for discovery, as did Charles, but both sides bear and typically retain that cost.
Id. at *17 at pg. 11 of 13.

Seinfeld’s attorneys were, however, awarded costs of $92 for paper copies. I personally find that funny.

In another Fraid Not! type eliciting move, Seinfeld’s attorneys also asked for an award of costs of $66,386.26 for electronic research fees. Again, same result, zero award for that. (Duh!) As Judge Nathan ruled, it is well settled such charges are already accounted in the attorneys’ hourly rates and research time. Id. at *16 at pg. 10 of 13. Wish it were not so, but it is; besides, $66,386.26 is one large Westlaw or Lexis fee for a simple Statute of Limitations case. Plus, as everyone knows, including the judge I presume, law firms are not charged by the project.

Still, Seinfeld’s attorneys justified the reasonableness of the fees and costs award requested on the representation that these were the fees and costs at rates actually billed to and paid by their clients. Here again is Judge Nathan explaining that argument, one which I have carefully used myself, and I emphasize carefully, because the representations better be true. Note I have omitted the lawyers names here as I have no intent to offend and I understand their frustration perfectly well with the obviously very annoying opposing counsel.

Generally, an “attorney’s customary billing rate for fee-paying clients is ordinarily the best evidence of” a reasonable hourly rate.
According to the ______’s declaration, the rates listed above are those actually charged and paid by ___________ clients for comparable work. That weighs in favor of finding the rates reasonable, but is not dispositive.
Id. at *6, *9 at pgs 6, 7 of 13.

Now we finally get to the unusually large ponies, the facts that took my breath away, namely the hourly rates of the attorneys, the fees requested, and the things they billed their client for. They also seemed to shock Judge Nathan, a very experienced judge in New York City, where all of the judges have pretty much seen it all, and so that’s really saying something.

Defendants request a staggering $872,939.66 in attorneys’ fees and $100,918.71 in costs. … That fee amount is constituted by 1,465.9 hours of work completed by eight attorneys as well as paralegals and support staff…
Id. at *8 at pg. 7 of 13.

Wow. I’m staggered. All for a simple copyright case that the defense argued was frivolous and they won on a motion to dismiss based on an obvious statute of limitation defense. But wait, there are still more ponies. The senior partner in charge of the case represented that his hourly rate in 2020 was $1,550.00. Yup, that’s One Thousand, Five Hundred and Fifty Dollars per hour. Ok. I’m really impressed, maybe just a wee bit jealous. <Secret thought: I really need to raise my rates. I’ve read the rules on the back of many game boxes.> And that was two years ago. I bet his rate is even higher now.

But wait, my sisters and cousins have ponies too. The sixth year associate working on the case had a standard rate of $965 per hour. Gees! But wait, there’s more. Five first-year associates, yup, kids barely out of law school, had their own ponies. Their hourly rates ranged from $545 in 2018 to $650 in 2020. <Secret thought: All right, that does it! I’m raising my rates.> There’s still more. Everyone had ponies. Three paralegals working on the case had standard rates of $431.25 per hour. If you are not astonished yet, consider this additional detail by Judge Nathan, who, along with her clerks, obviously put a lot of work into this. But I guess “a lot of work” is relative as these comments show.

A few examples demonstrate the excessive nature of the hours billed. First, take the series of motions to dismiss that Defendants filed. The lead associate, _______, alone billed 120 hours to research and draft the initial motion to dismiss; an additional [*14] 130 hours to update the motion following the first amended complaint; and a further 37 hours to update it following the second amended complaint. And partners and junior associates also billed hours to contribute to and review this work. The Court finds substantial overlap in the authorities across the three briefs filed in support of the motions to dismiss, suggesting that the hours billed to modify later briefs were in large part unnecessary. And the approximately 180 hours spent by associates to analyze Charles’s response and to draft a reply exacerbates the issue. At bottom, given the straightforward statute-of-limitations defense at the center of this case, Defendants’ request of $300,000 for drafting just the moving briefs alone is plainly unreasonable.⁴
FN 4- As Defense counsel observed at the oral argument before Judge Parker: “There was no novelty here. There was no mystery here. This case was as dead on arrival as a copyright case can be. I’ve been practicing copyright for a lot of years, 30 years.” Tr. at 13, Dkt. No. 135.
Id. at *13-14 at pg. 9 of 13.

I could go on, but the icing on the pony cake for me was that the defense attorneys put on and billed for a mock argument. Not only that, they even billed for first years to watch it. I kid you not. Here is Judge Nathan again and her dry wit. I’m pretty sure she is a Seinfeld fan too.

Third, the records reflect hours billed for multiple attorneys, including junior associates, to attend a mock argument and oral argument. Typically, courts do not pass the cost of associates observing mock arguments or oral arguments on to the opposing party in a fee award.
Id. *15 at pg. 9 of 13.

Conclusion – DUH!

Second Circuit Court of Appeals Judge Alison Julie Nathan, sitting by designation as the former trial judge of Charles v. Seinfeld, considered Seinfeld’s motion for award of fees of $872,939.66 and costs of $100,918.71. She also considered the objections of the plaintiff, Charles. She ruled and awarded only $28,750 in attorneys’ fees and $92 in costs for a total of $28,842. Judge Nathan did make the award joint and several against the plaintiff and plaintiff’s counsel. Some small solace to Seinfeld’s attorneys. They were pushing hard for personal sanctions against opposing counsel. On the other hand, as a final gesture, that seems funny to me at least, Judge Nathan said Charles and his attorney could make these payments in equal monthly installments over a ten-year period.

Dear fellow lawyers, even if opposing counsel is beyond annoying, a real caveman, don’t kid around with a judge in seeking sanctions. This is, in effect, what was going on here, seeking sanctions in the form of fees against opposing counsel. The judges have not only read the rules of the game, but they know them well and know how to apply them fairly. Do not try to game the system with inflated demands.