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Lawyers as Legal-Fortune Tellers

March 30, 2014

Most lawyers predict the future as part of their every day work. The best lawyers are very good at it. Indeed, the top lawyers I have worked with have all been great prognosticators, at least when it comes to predicting litigation outcomes. That is why concepts of predictive coding come naturally to them. Since they already do probability analysis as part of their work, it is easy for them to accept the notion that new software can extend these forward-looking skills. They are not startled by the ability of predictive analytics to discover evidence.

Although these lawyers will not know how to operate predictive coding software, nor understand the many intricacies of computer assisted search, they will quickly understand the concepts of probability relevance predictions. This deep intuitive ability is found in all good transactional and litigation attorneys. Someday soon AI and data analytics, perhaps in the form as Watson as a lawyer, will significantly enhance all lawyer’s abilities. It will not only help them to find relevant evidence, but also to predict case outcomes.

Transactional Lawyers and Future Projections

A good contract lawyer is also a good prognosticator. They try to imagine all of the problems and opportunities that may arise from a new deal. The lawyer will help the parties foresee issues that he or she thinks are likely to arise in the future. That way the parties can address the issues in advance. The lawyers include provisions in the agreement to implement the parties intent. They predict events that may, or may not, ever come to pass. Even if it is a new type of deal, one that has never been done before, they try to predict the future of what is likely to happen. I recall doing this when I helped create some of the first Internet hosting agreements in the mid-nineties. (We started off making them like shopping center agreements and used real estate analogies.)

Contract lawyers become very good at predicting the many things that might go wrong and provide specific remedies for them. Many of the contractual provisions based on possible future events are fairly routine. For instance, what happens if a party does not make a payment? Others are creative and pertain to specific conduct in the agreement. Like what happens if any party loses any shared information? What disclosure obligations are triggered? What other curative actions? Who pays for it?

Most transactional lawyers focus on the worst case scenario. They write contract provisions that try to protect their clients from major damages if bad things happen. Many become very good at that. Litigators like myself come to appreciate that soothsaying gift. When a deal goes sour, and a litigator is then brought in to try to resolve a dispute, the first thing we do is read the contract. If we find a contract provision that is right on point, our job is much easier.

Litigation Lawyers and Future Projections

In litigation the prediction of probable outcomes is a constant factor in all case analysis. Every litigator has to dabble in this kind of future prediction. The most basic prediction, of course, is will you win the case? What are the probabilities of prevailing? What will have to happen in order to win the case? How much can you win or lose? What is the probable damage range? What is the current settlement value of the case? If we prevail on this motion, how will that impact settlement value? What would be the best time for mediation? How will the judge rule on various issues? How will the opposing counsel respond to this approach? How will this witness hold up under the pressure of deposition?

All litigation necessarily involves near constant probability analysis. The best litigators in the world become very good at this kind of future projection. They can very accurately predict what is likely to happen in a case. Not only that, they can provide pretty good probability ranges for each major future event. It becomes a part of their everyday practice.

Clients rely on this analysis and come to expect their lawyers to be able to accurately predict what will happen in court. Trust develops as they see their lawyer’s predictions come true. Eventually clients become true believers in their legal oracles. They even accept it when they are told from time to time that no reasonable prediction is possible, that anything might happen. They also come to accept that there are no certainties. They get used to probability ranges, and so do the soothsaying lawyers.

Good lawyers quickly understand the limits of all predictions. A successful lawyer will never say that anything will certainly happen, well almost never. Instead the lawyer almost always speaks in terms of probabilities. For instance, they rarely say we cannot lose this motion, only that loss is highly unlikely. That way they are almost never wrong.

Insightful or Wishful

Professor Jane Goodman-Delahunty, JD, PhD, Australia.

An international team of law professors have looked into the legal-fortune telling aspects of lawyers and litigation. Goodman-Delahunty, Granhag, Hartwig, Loftus, Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes, (Psychology, Public Policy, and Law, 2010, Vol. 16, No. 2, 133–157). This is the introduction to their study:

In the course of regular legal practice, judgments and meta-judgments of future goals are an important aspect of a wide range of litigation-related decisions. (English & Sales, 2005). From the moment when a client ﬁrst consults a lawyer until the matter is resolved, lawyers must establish goals in a case and estimate the likelihood that they can achieve these goals. The vast majority of lawyers recognize that prospective judgments are integral features of their professional expertise. For example, a survey of Dutch criminal lawyers acknowledged that 90% made predictions of this nature in some or all of their real-life cases (Malsch, 1990). The central question addressed in the present study was the degree of accuracy in lawyers’ forecasts of case outcomes. To explore this question, we contacted a broad national sample of U.S. lawyers who predicted their chances of achieving their goals in real-life cases and provided conﬁdence ratings in their predictions.

Assoc. Professor Maria Hartwig, PhD, Sweden, Psychology and Law

Assoc. Professor Maria Hartwig, PhD, Psychology & Law, Sweden

Prediction of success is of paramount importance in the system for several reasons. In the course of litigation, lawyers constantly make strategic decisions and/or advise their clients on the basis of these predictions. Attorneys make decisions about future courses of action, such as whether to take on a new client, the value of a case, whether to advise the client to enter into settlement negotiations, and whether to accept a settlement offer or proceed to trial. Thus, these professional judgments by lawyers are influential in shaping the cases and the mechanisms selected to resolve them. Clients’ choices and outcomes therefore depend on the abilities of their counsel to make reasonably accurate forecasts concerning case outcomes. For example, in civil cases, after depositions of key witnesses or at the close of discovery, the parties reassess the likelihood of success at trial in light of the impact of these events.

Professor Pär Anders Granhag, PhD, Psychology, Sweden

In summary, whether lawyers can accurately predict the outcome of a case has practical consequences in at least three areas: (a) the lawyer’s professional reputation and financial success; (b) the satisfaction of the client; and (c) the justice environment as a whole. Litigation is risky, time consuming, and expensive. The consequences of judgmental errors by lawyers can be costly for lawyers and their clients, as well as an unnecessary burden on an already overloaded justice system. Ultimately, a lawyer’s repute is based on successful calculations of case outcome. A lawyer who advises clients to pursue litigation without delivering a successful outcome will not have clients for long. Likewise, a client will be most satisfied with a lawyer who is accurate and realistic when detailing the potential outcomes of the case. At the end of the day, it is the accurate predictions of the lawyer that enable the justice system to function smoothly without the load of cases that were not appropriately vetted by the lawyers.

Elizabeth F. Loftus, Professor of Social Ecology, and Professor of Law, and Cognitive Science Ph.D., Stanford University

Elizabeth F. Loftus, Professor of Social Ecology, Law and Cognitive Science, PhD., California

The law professors found that a lawyer’s prognostication ability does not necessarily come from experience. This kind of legal-fortune telling appears to be a combination of special gift, knowledge, and learned skills. It certainly requires more than just age and experience.

The law professor survey showed two things: (1) that lawyers as a whole tend to be overconfident in their predictions of favorable outcomes, and, (2) that experienced lawyers do not on average do a better job of predicting outcomes than inexperienced lawyers. Insightful or Wishful (“Overall, lawyers were over-confident in their predictions, and calibration did not increase with years of legal experience”). The professors also found that women lawyers tend to be better at future projection than men, so too did specialists over generalists.

Experience should make lawyers better prognosticators, but it does not. Their ego gets in the way. The average lawyer does not get better at predicting case outcomes with experience because they get over-confident with experience. They remember the victories and rationalize the losses. They delude themselves into thinking that they can control things more than they can.

I have seen this happen in legal practice time and time again. Indeed, as a young lawyer I remember surprising senior attorneys I went up against. They were confident, but wrong. My son is now having the same experience. The best lawyers do not fall into the over confidence trap with age. They encourage their team to point out issues and problems, and to challenge them on strategy and analysis. The best lawyers I know tend to err on the side of caution. They are typically glass half empty types.They remember the times they have been wrong.

How Lawyers Predict The Future

Accurate prediction of future events by lawyers, or anyone for that matter, requires deep understanding of process, rules, and objective analysis. Deep intuitive insights into the people involved also helps. Experience assists too, but only in providing a deep understanding of process and rules, and knowledge of relevant facts in the past and present. Experience alone does not necessarily assist in analysis for the reasons discussed. Effective analysis has to be objective. It has to be uncoupled from personal perspectives and ego inflation.

The best lawyers understand all this, even if they may not be able to articulate it. That is how they are able to consistently and accurately calibrate case outcomes, including, when appropriate, probable losses. They do not take it personally. Accurate future vision requires not only knowledge, but also objectivity, humility, and freedom from ulterior motives. Since most lawyers lack these qualities, especially male lawyers, they end up simply engaging in wishful thinking.

The Insightful or Wishful study seems to have proven this point. (Note my use of the word seems, a typical weasel word that lawyers are trained to use. It is indicative of probability, as opposed to certainty, and protects me from ever being wrong. That way I can maintain my illusion of omnipotence.)

The best lawyers inspire confidence, but are not deluded by it. They are knowledgable and guided by hard reason, coupled with deep intuition into the person or persons whose decisions they are trying to predict. That is often the judge, sometimes a jury too, if the process gets that far (less than 1% of the cases go to trial). It is often opposing counsel or opposing parties, or even individual witnesses in the case.

All of these players have emotions. Unlike Watson, the human lawyers can directly pick up on these emotions. The top lawyers understand the non-verbal flows of energy, the irrational motivations. They can participate in them and influence them.

If lawyers with these skills can also maintain objective reason, then they can become the best in their field. They can become downright uncanny in their ability to both influence and forecast what is likely to happen in a law suit. Too bad so few lawyers are able to attain that kind of extremely high skill level. I think most are held back by an incapacity to temper their emotions with objective ratiocination. The few that can, rarely also have the emphatic, intuitive skills.

Watson as Lawyer Will be a Champion Fortune Teller

Is Watson coming to Legal Jeopardy?

The combination of impartial reason and intuition can be very powerful, but, as the law professor study shows, impartial reason is a rarity reserved for the top of the profession. These are the attorneys who understand both reason and emotion. They know that the reasonable man is a myth. They understand the personality frailties of being human. Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead, Long Live the Whole Man, Parts One, Two and Three; and The Psychology of Law and Discovery.

I am speaking about the few lawyers who have human empathy, and are able to overcome their human tendencies towards overconfidence, and are able to look at things impartially, like a computer. Computers lack ego. They have no confidence, no personality, no empathy, no emotions, no intuitions. They are cold and empty, but they are perfect thinking machines. Thus they are the perfect tool to help lawyers become better prognosticators.

This is where Watson the lawyer comes in. Someday soon, say the next ten years, maybe sooner, most lawyers will have access to a Watson-type lawyer in their office. It will provide them with objective data analysis. It will provide clear rational insights into likely litigation outcomes. Then human lawyers can add their uniquely human intuitions, empathy, and emotional insights to this (again ever mindful of overconfidence).

The AI-enhanced analysis will significantly improve legal prognostications. It will level the playing field and up everyone’s game in the world of litigation. I expect it will also have the same quality improvement impact on contract and deal preparations. The use of data analytics to predict the outcome in patent cases is already enjoying remarkable success with a project called Lex Machina. The CEO of Lex Machina, Josh Becker, calls his data analytics company the moneyball of IP litigation. Tam Harbert, Supercharging Patent Lawyers With AI. Here is the Lex Machina description of services:

We mine litigation data, revealing insights never before available about judges, lawyers, parties, and patents, culled from millions of pages of IP litigation information.

Many corporations are already using the Lex Machina’s analytics to help them to select litigation counsel most likely to do well in particular kinds of patent cases, and with particular courts and judges. Law firms are mining the past case data for similar reasons.

Conclusion

Here is my prediction for the future of the legal profession. In just a few more years, perhaps longer, the linear, keyword-only evidence searchers will be gone. They will be replaced by multi-modal, predictive coding based evidence searchers. In just a decade, perhaps longer (note weasel word qualifier), all lawyers will be obsolete who are not using the assistance of artificial intelligence and data analytics for general litigation analysis.

Lawyers in the future who overcome their arrogance, their overconfidence, and accept the input and help of Watson-type robot lawyers, will surely succeed. Those who do not, will surely go the way of linear, keyword-only searchers in discovery today. These dinosaurs are already being replaced by AI-enhanced searchers and AI-enhanced reviewers. I could be overconfident, but that is what I am starting to see. It appears to me to be an inevitable trend pulled along by larger forces of technological change. If you think I am missing something, please leave a comment below.

This rapid forced evolution is a good thing for the legal profession. It is good because the quality of legal practice will significantly improve as the ability of lawyers to make more accurate predictions improves. For instance, the justice system will function much more smoothly when it does not have to bear the load of cases that have not been appropriately vetted by lawyers. Fewer frivolous and marginal cases will be filed that have no chance of success, except for in the deluded minds of second rate attorneys. (Yes, that is what I really think.) These poor prognosticators will be aided by robots to finally recognize a hopeless case. That is not to say that good lawyers will avoid taking any high risk cases. I think they should and I believe they will. But the cases will be appropriately vetted with realistic risk-reward analysis. The clients will not be seduced into them with false expectations.

With data analytics unnecessary motions and depositions will be reduced for the same reason. The parties will instead focus on the real issues, the areas where there is bona fide dispute and uncertainty. The Watson type legal robots will help the judges as well. With data analytics and AI, more and more lawyers and judges will be able to follow Rule 1 of the Federal Rules of Civil Procedure. Then just, speedy, and inexpensive litigation will be more than a remote ideal. The AI law robots will make lawyers and judges smart enough to run the judicial system properly.

Artificial intelligence and big data analytics will enable all lawyers to become excellent outcome predictors. It will allow all lawyers to move their everyday practice from art to science, much like predictive coding has already done for legal search.

4 Comments | Lawyers Duties, Review, Search, Technology | Tagged: best practices, computer assisted review, Dan Ariely, discovery, ethics, IRT, law, legal profession, legal search, machine learning, predictive coding, robot, robots, science, search, technology | Permalink
Posted by Ralph Losey

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

February 1, 2014

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

Final Word From Dan Ariely

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

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

Cornerstone Made of Pudding

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

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

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

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

If Not Reason, Then What?

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

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

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

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

Call For Action

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

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

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

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

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

A Few More Specific Suggestions of Reform

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

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

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

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

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

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

Conclusion

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

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

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

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

4 Comments | Lawyers Duties, New Rules, Review, Search, Spoliation/Sanctions, Technology | Tagged: Center for Advanced Hindsight, computer assisted review, Courts of Law, Dan Ariely, discovery, IRT, justice, law, legal profession, machine learning, negligence law, predictive coding, Professor Ariely, robot, robots, science, technology | Permalink
Posted by Ralph Losey

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

January 26, 2014

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

Doing the Right Things for the Wrong Reasons

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

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

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

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

The Power of Emotions and the Myth of Reasoned Behavior

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

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

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

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

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

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

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

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

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

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

Robots and Neuroscience?

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

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

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

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

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

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

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

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

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

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

3 Comments | Evidence, Lawyers Duties, New Rules, Review, Search, Spoliation/Sanctions, Technology | Tagged: Dan Ariely, ethics, IRT, Jason R. Baron, judge, judges, justice, law, legal profession, machine learning, predictive coding, Professor Ariely, proposed rules, Ray Kurzweil, robots, science, technology, truth, Victor Stanley | Permalink
Posted by Ralph Losey

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

January 19, 2014

The Reasonable Man on which the law is based is a fiction of our collective legal imagination. He does not exist. Never has, never will. We humans are much more complex than that. Although reasoning is important, it is only one of our many capacities, including imagination. Most of our decisions are not even based on reason. Quaint notions to the contrary from the 18th Century Age of Reason are out of touch with reality. They are contrary to what science today is telling us about how humans process information and reach decisions.

Scientific research shows that the cornerstone of the Law – Reasonability – is not solid granite as we had thought. There are no hard gears in our head, just soft, gelatinous, pinkish-beige matter. (Our brain is only soft grey matter when dead.) The ratiocination abilities of the brain are just one small part of its many incredible capacities. (For example, recent experiments at MIT have shown that we can identify images seen for as little as 13 milliseconds, 13/1,000ths of one second.) We are far more than just rational, and that is a good thing.

Going Beyond the Age of Enlightenment
Into the Modern Era of Science

This blog will offer proof that the Law’s Reasonable Man is dead. Then I will encourage the profession, starting with you dear readers, to transcend the mere rational. We all need to change our work to include more of our human capacities. This does not mean a return to the Dark Ages and the discovery of truth by torture and combat. It means following the inevitable dictates of the Age of Reason, that we be guided by the findings of science and objective repeatable, experiments, no matter how irrational these findings may at first seem. To refuse to accept the truth, no matter how different it is from your current beliefs, is itself an irrational carryover from the Dark Ages. We must boldly go where science and reason takes us. The world is not flat and we are not governed by reason alone. We are far more than a thinking machine. We must open our eyes and see the truth. That is the true meaning of the Age of Enlightenment.

Science, based on reason and the experimental method, has taken Man beyond the rational, has shown the limitations of reason. Just as the evidence from physics experiments forced scientists to go beyond Newtonian Causality, and required them to embrace the seemingly irrational truth of Relativity and Quantum Mechanics, so too must the Law now evolve its thinking and procedures. As proof for this proposition in this blog I will proffer the testimony of one expert witness, a noted MIT and Duke University Psychologist and Behavioral Economist.

The Legal Profession Must Awaken from the Daydream of Rationality

My last blog, The Psychology of Law and Discovery, laid the foundation for the introduction of this evidence. I noted how law is based on the assumption that people make reasoned decisions and are capable of acting in a reasonable manner. I offered preliminary evidence that this assumption is contrary to the findings of research psychologists. I referred to a recent article by one such psychologist, Herb Roitblat, who is also an expert in legal search: The Schlemiel and the Schlimazel and the Psychology of Reasonableness (Jan. 10, 2014, LTN). I will now offer further, more detailed proof that humans do not act out of reason. I will do so by use of videotaped expert testimony of sorts. I will then argue that these findings require us to make fundamental reforms to our system of justice.

The consequences to the Law of the new experimental findings are profound. They raise many questions for which I have only a few preliminary answers. Many more questions will arise I am sure. This is much bigger than any one lawyer, or one or two blogs. The entire profession will have to awaken from the daydream of rationality. This is just the start of the discussion. We need to work together to change our system of justice to conform to the evidence of irrational behavior that science has uncovered.

This evidence is abundant. With only a little search I am sure you will find much more proof than I will now proffer. This is solid scientific evidence based on verifiable experiments. The evidence proves that our assumptions made in the law as to human reasonability, assumptions built centuries ago when the Age of Reason first began, are false assumptions. The evidence shows that the Reasonable Man is a legal fiction.

As Exhibit “A” to the assumption busting proposition I rely on the work of Dan Ariely, a Professor of Psychology and Behavioral Economics at Duke University. As an introduction to his work I offer a TED video of Professor Ariely, Are We In Control of Our Own Decisions? He refers to his many scientific experiments at MIT, then Duke, that show we are not in control of many of our own decisions, even seemingly simple ones. These experiments prove my point. Listen carefully.

Predictable Irrationality and Swearing on Bibles

Need more proof? Then please consider additional testimony from Professor Ariely on predictable irrationality. This discourse even mentions every e-discovery lawyer’s favorite company, Enron, and examines our basic moral code, our personal fudge factor. Dan has conducted many experiments on the all too human tendency to cheat and lie, if only just a little, and the moving grey line between acceptable and unacceptable behavior. This is the line that the Law is constantly asked to draw, and to evaluate. These psychological insights are important to all lawyers, especially discovery lawyers, of the “e” only type like me, or not. Again, please listen carefully and consider the implications of these findings on the Law.

One interesting finding from Professor Ariely’s scientific experiments on cheating, one that you can easily miss in the video (see around frame 8:15), even if you can see 77 frames per second, is that asking people to swear on a Bible significantly reduces cheating. This even works for atheists! I kid you not. Perhaps we should bring back the old tradition of requiring all witnesses to swear on a bible before beginning their testimony?

I have done this myself long ago when I was out taking depositions as a young lawyer. In the early eighties many court reporters in rural counties of Florida would still pull out a Bible before a deposition began (they all used to carry them around for that purpose, and yes, that was way before they started carrying around computers). The court reporter would then ask the deponent to raise their right hand and put their left hand on the Bible. All the witnesses I saw instantly complied, thinking erroneously that this was a legal requirement. They placed their hand on the Bible, some nervously, and some like they did that all the time, and then were asked to solemnly swear on the Bible that they would tell the truth, the whole truth and nothing but the truth so help me God. They did as asked by the serious court reporter, and some seemed pretty impressed by the whole ceremony. I recall that overall the testimony from these witnesses was pretty good.

I only saw this done a few times, and, as a typical arrogant big city lawyer (yes, out in the rural areas where they were still doing this, they all thought of Orlando as a big city), I dismissed it as a quaint old custom. But now science shows that it works. Science shows that this quaint custom works, even for members of the Church of the Flying Spaghetti Monster.

What are the implications of these findings about human behavior? Maybe we should bring back Bibles into the court rooms? Or at least bring back a bunch of solemn oaths? If we do not require swearing on or to a Bible, due to Church and State, or whatever, then perhaps we should ask people giving testimony to swear on something else. Most anything seems to work, even if it does not really exist. Dan Ariely’s experiments found that it even worked to have MIT students swear on an honor code that didn’t exist. Maybe asking lawyers to swear on their ethics codes would work too? Maybe that is the reform in the procedural rules we should be pushing for, instead of Rule 37(e)? Maybe we should update Rule 603 of the Federal Rules of Evidence:

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

We need to work on forms designed to impress today’s savvy witnesses. Maybe bringing back Bibles will work for some, or something custom-fit to the particular witnesses. Who knows, for a chemist, it might be the periodic table. For others it might be a picture of their mother. Maybe the oath should be administered by prisoners in chains and mention the penalties of imprisonment for perjury. I think that would be pretty effective. Have you ever seen prisoners in chains up close in the court room? A few judges I know used to handcuff and shackle fathers who were delinquent in child support payments like that before their hearings. I am told it had a very sobering effect. Some experiments with this should be conducted because our current systems are not working very well. We rarely impress witnesses enough to awaken their latent conscience, much less our lawyers.

Maybe we should also amend Rule 26(g) to add swearing and a reference to ethics codes? Maybe stronger, more impressive oaths by lawyers signing 26(g) discovery requests and responses would work. Perhaps that would magically make more all too human lawyers start taking the requirements of the rules more seriously.

Maybe we should follow the British and make our judges wear fancier robes and make our lawyers and judges wear wigs? (One of Ariely’s experiments found clothing had an impact on honesty.) Let us build even more impressive court rooms while we are at it, and let’s not only say Your Honor, but how about Your Lordship too? Or Your Grace? Maybe all lawyers should start adding courtly formalities to their 26(f) conferences? I can just imagine defense attorneys beginning every one of their responsive statements with things like: “The right honorable attorney representing the plaintiffs in this proceeding has made a point with some validity, but …” Maybe that would motivate lawyer conduct that would in fact please the court?

Of course I jest, but Ariely’s work shows that irrational approaches have a better chance of success than appeals to abstract knowledge alone. Forget about using reason to appeal to lawyers to cooperate, we have all seen how far that gets us.

END OF PART ONE.
Part two will follow next Sunday. I swear.