I, for one, welcome our new Computer overlords.
— Ken Jennings, upon losing to Watson on Jeopardy
Unbeknownst to most, one of the start-ups in the Big Data tech arena of law is a company called Lex Machina. For the moment, it’s limited to the IP niche of law, but what it seeks to do is rather astounding:
We mine litigation data, revealing insights never before available about judges, lawyers, parties, and patents, culled from millions of pages of IP litigation information.
We call these insights Legal Analytics, because analytics involves the discovery and communication of meaningful patterns in data.
In other words, they purport to be able to cull from the pages of court documents the efficacy of strategies, causes of action, lawyers, venues, judges, everything. Forget for the moment that papers don’t tell all, and often don’t tell much, but that enough paper, with the right analysis, should provide a statistically accurate picture that replaces the “art” of lawyering with science.
Josh Blackman, who is by no means an enemy to the cause of big data, raised four ethical issues with the Lex Machina approach (though, to be clear, it had nothing to do with Lex Machina itself).
The first is well-discussed. How are these data analytic firms structured? Specifically, do they run afoul of Rule 5.4, which blocks ownership of law firms by non-lawyers. The answer to this issue will depend on whether the nature of the activities these analytic firms are perform are considered legal services. If no legal services are being provided, Rule 5.4 doesn’t apply. If there are legal services being provided, until the rules are changed, Rule 5.4 applies. It is only a matter of time before several players in the field who are coy about the manner in which they are structured are going to have to deal with this. I’ll leave that issue here for now.
Most notable here is that Josh raises the “coy” piece, as Alt Law, businesses owned by non-lawyers who are providing legal services (at the moment primarily to corporations, which everyone assumes can handle their own issues) are law firms when they want to be and not when others come sniffing around. They are lucky that there is so little concern by prosecutors and disciplinary authorities in the Unauthorized Practice of Law, or they wouldn’t stand a chance. But hey, what’s a flagrant violation of law in the face of money to be made, lax oversight and the future of law cheerleaders?
Second, these data analytics firms, whether deemed law firms or not, will have to confront potential conflicts of interests.
Both sides of a dispute can go to the website, pay for some analytics, and get an answer, neither knowing that the other side did the same. Since the computer doesn’t play favorites, it might not matter. On the other hand, the data from one could influence the data to the other. It could suck to be the first to inquire if you serve to inform the second.
The third issue concerns legal malpractice.
Plug in your info and Lex Machina spits out its data. You rely on it, crash and burn. You can’t sue Lex Machina for legal malpractice, because it’s not a lawyer, but a machine. And might I toss in an additional thought that so many people forget about these days: GIGO. Garbage in, garbage out. Don’t blame a machine because you asked a bad question.
The fourth issue, and the other elephant in the room, is Unauthorized Practice of Law (UPL).
At the moment, Lex Machina is primarily directed toward lawyers, so that whatever it produces is filtered through counsel before it reaches the client. If their output sucks, it’s the lawyer’s duty to recognize it and address it.
But this is changing. Lex Machina now offers a sample of what it can do with a demand letter, and this concern goes to the interests of the client rather than the lawyer.
With Demand Letter Analytics, Lex Machina provides this report to help you better understand your demand letter. The first three sections provide information about the litigation activity of the company, law firm, and patents in your letter. With this information, you can better assess the threat of litigation. The last section provides information about other law firms, attorneys, and companies that have been involved in litigation with the company or patents. With their experience, these potential resources may help you better understand the threat you’re facing.
As anticipated, it didn’t take long to shift from providing big data support to lawyers to offering custom answers to individuals that can have a deleterious impact on their rights and future.
But we’re not IP lawyers? Who cares that these techno-freaks want to make IP lawyers and clients bow to the computer overlords? Well, it’s just a hop, skip and jump from IP to criminal defense, where the strategies we appear to employ, at least on paper, will be subject to computer analytics. What are the chances a suppression motion will succeed? Should I cop a plea or go to trial? What’s my lawyer’s won/lost ratio?
Stupid questions? Not really. Inadequate questions that fail to take into account a wealth of factors that papers could never reveal? You bet. But the computer overlord won’t give a damn, because it’s a computer. Nor will Lex Machina because it’s a business, and if its business model means your clients go to prison, it’s of no moment as long as they paid.
Watson may have beaten Ken Jennings on Jeopardy, but law isn’t as easily programmed.