By far my favorite moment at Stanford Law School’s FutureLaw event was during the Dan Katz panel titled The Perils and Promise of Predictive Analytics in Law. Part of the reason that this write-up is so tardy is that I waited for CodeX to release the video of the panel so I could review it, react to it, and utilize all the juicy tidbits.
The panel focused on how data analytics and predictive technologies are shaping and will continue to shape the future of legal. It featured Dan Katz from Chicago Kent IIT Law School, Josh Becker CEO of Lex Machina, Gipsy Escobar from Measures for Justice, John Nay from Scopos Labs and Dera Nevin eDiscovery counsel at Proskauer Rose.
All the panelists were great (it’s no secret that I’ve long been a Dan Katz fanboy) but Dera Nevin blew me away. Using the themes of attention, emotion, and disintermediation, she gave specific and provocative examples of the legal system in the age of data.
Data analytics is bringing society’s collective attention and much-needed transparency to the algorithmic nature of law. As Dera put it:
Law is an algorithm, it’s an analog algorithm that is full of bugs and holes, but it is an algorithm. The opportunity in digitizing the legal system is to make our assumptions transparent and add bandwidth to generate more legal outcomes. We are in the dial-up era of our legal infrastructure. With greater bandwidth we can generate not only better but more legal outcomes.
The idea that the legal system can be represented in mathematical or programming terms is not new. The application of analytics to law will reduce what is otherwise perceived to be a complex unpredictable system with many possible outcomes to a more predictable one in which outcomes are mathematically represented. This reductive analysis will, in turn, expose the assumptions – good, bad, and arbitrary – that underpin our legal system.
Just as Dera suggested, knowledge of the underlying assumptions will not only improve our legal decision-making but also enable legal systems to scale in order to serve more people.
Emotion also plays a central role in the legal system and legal decision-making whether cool, logic-driven lawyers want to admit it or not.
Lawyers play a critical role in the assisting clients in the legal decision-making process. Dera expertly explained that while law is an algorithm, law is experienced and perceived by the consuming public as a storytelling machine. The lawyer’s role is to assess the client need in light of the legal storytelling machine and determine what in the client’s situation needs enforcing and to what ends it should be enforced. A lawyer should help the client make that enforcement decision based on logical factors, not emotional ones. If for example, a client’s reason for wanting a divorce is a momentary frustration, not based upon a breakdown of trust and respect, then divorce may not be the client’s best option. The lawyer’s job is to use the transparency that data and analytics are creating so that individuals in the legal system understand when they are making a logic-based decision or an emotional-based decision. Emotional-based decisions don’t need to be deflected entirely. Instead, emotional-based decisions become inflection points for us as a society to make judgments about whether and how the legal system needs to change.
Dera concluded that the transparency of data analytics will make sorting logical and emotional decisions easier. Legal professionals of all types will be able to focus on changing the system in order to remedy injustices inherent in the system and scaling it to serve more people more effectively.
Finally, disintermediation. Disintermediation, which means a reduction of use of intermediaries in given transaction of interaction, is frequently a scary term for lawyers. A disintermediated legal system means consumers interacting directly or more directly with the legal system without going through a lawyer. While data analytics has the potential to disintermediate the legal space by providing clients with information that may make the client less likely to hire a lawyer, it also presents an opportunity. While lawyers might be disintermediated by data, data presents new opportunities for lawyers to add value in new ways. One way is in being a counselor. Paraphrasing Dera:
Lawyers can counsel their clients about the prudence or likelihood of success of a given approach using data analytics because, as the old adage suggests, clients can be smart or they can be right and one is going to them more. There are situations, such a social justice, or areas in which a society is trying to stretch the law, when being right is important or the cost of not being right can be life-altering. In these cases the law should make a change despite the odds. There are cases where pursuing an expensive unlikely outcome due to an emotional reason, a business reason, a social reason, or even a process reason – a legitimate process reason – is the right thing to do. The availability of data analytics will help inform better decisions in these types of situations which will ultimately contribute to a better allocation of resources.
Another opportunity for lawyers in the age of data analytics will be asking questions. Again, paraphrasing Dera:
Law school trains law students to ask better questions. That will be a key skill in the future because while a computer may be able to “run” the legal algorithm it must first be asked a question. And, at least for the foreseeable future, computers will not have the ability to ask questions of clients in order to determine what the clients’ interest really is and whether what the client is saying is what they actually want. The risk of being a lawyer is that you implement exactly what the client says and it turns out that that’s not what the client wants. That’s why it’s both important for lawyers to hone the skill of asking questions and for algorithms to be built to be challenged (as noted above) so that clients can divert out in the event of a miscommunication between lawyer and client about what the client wants.
Finally, separate from the three themes Dera emphasized, the panel also responded to a question from the audience about how the legal system can create the same confidence in decisions driven by data analytics that judicial decisions enjoy. Again, Dera was spot on:
Humans will grow to accept data driven judicial decisions in the same way that humans have evolved to accept a judge. If you think about it, when you’re having a dispute with somebody why on earth would you go and have a man or woman and 12 random people you’ve never met to help you resolve it? It makes no sense but in the context of our society we have grown to accept it because those people – a jury of our peers and to a lesser extent the judge – reflect back to us stories about society that we believe to be true. And they accept our notion of social order the way we as a society understand it. The history of our law has consistently included a conversation – sometimes starting from the outside, sometimes from the inside – about why we believe those stories to be true. The data analytics revolution will be another example. Our society will have a new way of creating stories and because I believe in the plasticity of human imagination to adapt I believe we ultimately will accept this new way of telling societal stories.
Dera’s analysis was so compelling because it applied the emerging data analytics field to specific situations in the life of a practicing lawyer or client. And, while the work that all of the other panelists are doing is interesting and really important, whether and how data analytics plays out at the level of the everyday lawyer and everyday client may ultimately determine how the discipline is adopted in the legal sector more broadly.