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Before Blue Eyes

-- By JacksonAlberts - 06 Apr 2013

The Bad Man I, or Every Client

According to Oliver Wendell Holmes, all clients, indeed all capitalists, are bad men. For they simply want an answer to the question “if…then…” that maximizes their own return or minimizes the penalty exacted by society, whether it is called a tax or penalty. In The Path of the Law, Holmes was careful to point out that the “bad” man was not bad, that the law is not a system of positive or negative judgments reaching a single correct sum. Rather, an “if…then…” mode of thought corresponds to Cartesian geometry, that much more accurately describes a rational actor at any given moment. A typical not-so-bad man wants to know if he speeds, what the fine will be, so that he can compare the time saved to the cost. When he has been later caught, he wants to know if the facts can lead to a dismissal. When the car he drives is a multi-billion dollar conglomerate, the inquiry is correspondingly more complex and sound advice as precious.

The Old Crystal Ball

That bad man has access to the best prediction money can buy. His attorney is well versed in the “crystals” that are the law and the “mud” within which a litigator may wiggle. Following Holmes and Langdell, the study of law boils cases down into rules, which predicate the terms of the settlements by which the vast majority of conflicts are resolved. Some go to trial, the vast majority of which reaffirm the lines already drawn. Legal scholars study the decisions, and in turn devise rules exemplified by specific decisions. They look broadly at opinions when compiling casebooks, or compile unique sets for law review articles. Occasionally, the judiciary departs from precedent, either on their own whim or prompted by academia, and muddy up the lawyer’s crystal ball. The dust gradually solidifies into new formations, and the process repeats. In Holmes’ time, a decent ball could be contrived by studying a generation’s worth of cases in a given jurisdiction and drawing functions accordingly.

Coming Change

Since the turn of the last century, all sort of lenses have radically improved in ability, cost, and ubiquity. And though Shepherdizing has given way to Lexis searches, another revolution is due. The tools available at present are cumbersome enough for research; they have little to no predictive ability. For that, attorneys must rely on their experience and knowledge, and clients must pay accordingly. Change is in the air, however. Consultants now offer legal data analysis to in-house counsel. Law schools are beginning to offer courses in “Empirical Legal Studies.” But this is only the beginning. As the volume of data available increases exponentially year by year and the tools for analyzing it follows Moore’s law, the impact on the legal field will eventually catch up.

The Bad Man II, or the Example

Take that simplest bad man, the rational speeder. An experienced commuter, he knows by now which stretches of road he is likely to encounter police on. He also knows the cost of a ticket, the time value saved and its corresponding worth to him. All this information is held by his in-house legal knowledge. When he does get a ticket, he might turn to outside help to fight it with advanced legal tools, such as questioning the citing officer. Or perhaps he goes in to fight it himself, with no strategy other than the hope the officer will not come to court. Or he calculates that the odds of success and the time cost are not worth it, and simply pays the ticket.

The New Crystal Ball

Currently, even for very sophisticated clients, the legal analysis done is shockingly rudimentary, compared even with say professional baseball. Good lawyers know how to judge and jurisdiction shop, how to introduce certain types of evidence that have often been effective, when to settle. Most of the expertise is gained through experience. Lawyers, and the client for whom they work, make these calls based on very little quantifiable data: verdict amounts, estimated billable hours, etc. But what if it does turn out to matter that a client wore a white hat on the day he signed a contract? What if that fact could be plugged into a matrix along with a whole range of other variables, and the predicted outcomes adjusted accordingly? Though trials are much more difficult to dissect than baseball games, perhaps a new system parallel to sabermetrics and available to the mass market could revolutionize predictive lawyering as it is currently practiced.

The Bad Man III, or How to Most Efficiently Serve Tomorrow's Clients

For the ticketed speeder, the most relevant piece of information is not the size of the fine, but how likely it is that he will have to pay it. While the information may already exist in formal or informal form on how often officers in general show up for court, or even officers of a given department, much better can be done. In this simplest scenario, the client needs to know if a given officer will show up to a support a ticket on a given date. And if enough tickets were plugged in, trends would certainly begin to emerge. Eventually, a formula could be adduced that accurately predicted the cost of that given infraction, then packaged into an app or website. As time progresses, modeling products will emerge to meet every legal service sector they are applicable to, in a manner scaling to the niche served. The most difficult task involved is gathering and classifying the available data in efficient terms. For the speeder, enough tickets will have to be logged in to make the inferences at all valid. Either those who will benefit will do it in a crowd-sourced manner, or data miners will need to sit down with whatever public records are available and then charge for it. Obviously, the information necessary for multinational corporate giants to wage the most cost-effective battles of attrition against each other will be correspondingly vaster, and the marketable product equally more difficult to use. Even so, it will still be cheaper than current billing models.

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