Artificial intelligence doesn’t equal artificial perfection. I have argued for a while now both on this blog and in a forthcoming law review article here that lawyers (and the investigators who work for them) have little to fear and much to gain as artificial intelligence gets smarter.

Computers may be able to do a lot more than they used to, but there is so much more information for them to sort through that humans will long be required to pick through the results just as they are now. Right now, we have no quick way to word-search the billions of hours of YouTube videos and podcasts, but that time is coming soon.

The key point is that some AI programs will work better than others, but even the best ones will make mistakes or will only get us so far.

So argues British math professor Hannah Fry in a new book previewed in her recent essay in The Wall Street Journal, here. Fry argues that instead of having blind faith in algorithms and artificial intelligence, the best applications are the ones that we admit work somewhat well but are not perfect, and that require collaboration with human beings.

That’s collaboration, not simply implementation. Who has not been infuriated at the hands of some company, only to complain and be told, “that’s what the computer’s telling me.”

The fault may be less with the computer program than with the dumb company that doesn’t empower its people to work with and override computers that make mistakes at the expense of their customers.

Fry writes that some algorithms do great things – diagnose cancer, catch serial killers and avoid plane crashes. But, beware the modern snake-oil salesman:

Despite a lack of scientific evidence to support such claims, companies are selling algorithms to police forces and governments that can supposedly ‘predict’ whether someone is a terrorist, or a pedophile based on his or her facial characteristics alone. Others insist their algorithms can suggest a change to a single line of a screenplay that will make the movie more profitable at the box office. Matchmaking services insist their algorithm will locate your one true love.

As importantly for lawyers worried about losing their jobs, think about the successful AI applications above. Are we worried that oncologists, homicide detectives and air traffic controllers are endangered occupations? Until there is a cure for cancer, we are not.

We just think these people will be able to do their jobs better with the help of AI.

An entire day at a conference on artificial intelligence and the law last week in Chicago produced this insight about how lawyers are dealing with the fast-changing world of artificial intelligence:

Many lawyers are like someone who knows he needs to buy a car but knows nothing about cars. He knows he needs to get from A to B each day and wants to get there faster. So, he is deposited at the largest auto show in the world and told, “Decide which car you should buy.”

Whether it’s at smaller conferences or at the gigantic, auto-show-like legal tech jamborees in Las Vegas or New York, the discussion of AI seems to be dominated by the companies that produce the stuff. Much less on show are people who use legal AI in their everyday lives.

At my conference, the keynote address (and two more panels) were dominated by IBM. Other familiar names in AI in the world of smart contracting and legal research were there, along with the one of the major “old tech” legal research giants. All of the products and services sounded great, which means the salespeople were doing their jobs.

But the number of people who presented about actually using AI after buying it? Just a few (including me). “We wanted to get more users,” said one of the conference organizers, who explained that lawyers are reluctant to describe the ways they use AI, lest they give up valuable pointers to their competitors.

Most of the questions and discussion from lawyers centered around two main themes:

  1. How can we decide which product to buy when there are so many, and they change so quickly?
  2. How can we organize our firm’s business model in such a way that it will be profitable to use expensive new software (“software” being what AI gets called after you start using it)?

Law firm business models are not my specialty, but I have written before and spoke last week about evaluating new programs.

Only you (and not the vendor) can decide how useful a program is, by testing it. Don’t let the vendors feed you canned examples of how great their program is. Don’t put in a search term or two while standing at a trade show kiosk. Instead, plug in a current problem or three while sitting in your office and see how well the program does compared to the searches you ran last week.

You mean you didn’t run the searches, but you’re deciding whether to buy this expensive package? You should at least ask the people who will do the work what they think of the offering.

I always like to put in my own company or my own name and see how accurate a fact-finding program is. Some of them (which are still useful some of the time) think I live in the house I sold eight years ago. If you’re going to buy, you should know what a program can do and what it can’t.

As with other salespeople in other industries, AI sales staff won’t tell you what their programs are bad at doing. And most importantly, they won’t tell you how well or how badly (usually badly) their program integrates with other AI software you may be using.

No matter how good any software is, you will need good, inquisitive and flexible people running it and helping to coordinate outputs of different products you are using.

While sales staff may have subject-matter expertise in law (it helps if they are lawyers themselves) they cannot possibly specialize in all facets of the law. Their job is to sell, and they should not be criticized for it.

They have their job to do, and as a responsible buyer, you have yours.

For more on what an AI testing program could look like and what kinds of traits the best users of AI should have, see my forthcoming law review article here:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3085263

 

We’ve had a great response to an Above the Law op-ed here that outlined the kinds of skills lawyers will need as artificial intelligence increases its foothold in law firms.

The piece makes clear that without the right kinds of skills, many of the benefits of AI will be lost on law firms because you still need an engaged human brain to ask the computer the right questions and to analyze the results.

But too much passivity in the use of AI is not only inefficient. It also carries the risk of ethical violations. Once you deploy anything in the aid of a client, New York legal ethics guru Roy Simon says you need to ask,

“Has your firm designated a person (whether lawyer or nonlawyer) to vet, test or evaluate the AI products (and technology products generally) before using them to serve clients?”

We’ve written before about ABA Model Rule 5.3 that requires lawyers to supervise the investigators they hire (and “supervise” means more than saying “don’t break any rules” and then waiting for the results to roll in). See The Weinstein Saga: Now Featuring Lying Investigators, Duplicitous Journalists, Sloppy Lawyers.

But Rule 5.3 also pertains to supervising your IT department. It’s not enough to have some sales person convince you to buy new software (AI gets called software once we start using it). The lawyer or the firm paying for it should do more than rely on claims by the vendor.

Simon told a recent conference that you don’t have to understand the code or algorithms behind the product (just as you don’t have to know every feature of Word or Excel), but you do need to know what the limits of the product are and what can go wrong (especially how to protect confidential information).

In addition to leaking information it shouldn’t, what kinds of things are there to learn about how a program works that could have an impact on the quality of the work you do with it?

  • AI can be biased: Software works based on the assumptions of those who program it. You can never get a read in advance of what a program’s biases may do to output until you use the program. Far more advanced than the old saying “garbage in-garbage out,” but a related concept: there are thousands of decisions a computer needs to make based on definitions a person inserts either before the thing comes out of the box or during the machine-learning process where people refine results with new, corrective inputs.
  • Competing AI programs can do some things better than others. Which programs are best for Task X and which for Task Y? No salesperson will give you the complete answer. You learn by trying.
  • Control group testing can be very valuable. Ask someone at your firm to do a search for which you know the results and see how easy it is for them to come up with the results you know you should see. If the results they come up with are wrong, you may have a problem with the person, with the program, or both.

The person who should not be leading this portion the training is the sales representative of the software vendor. Someone competent at the law firm needs to do it, and if they are not a lawyer then a lawyer needs to be up on what’s happening.

[For more on our thoughts on AI, see the draft of my paper for the Savannah Law Review, Legal Jobs in the Age of Artificial Intelligence: Moving from Today’s Limited Universe of Data Toward the Great Beyond, available here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3085263].

 

We don’t usually think of the law as the place our most creative people go. Lawyers with a creative bent often drift into business, where a higher risk tolerance is often required to make a success of yourself. Some of our greatest writers and artists have legal training, but most seem to drop out when their artistic calling tells them law school isn’t for them.

Group of Robots and personal computer vector illustration

Still, creativity and innovation are all the rage in law schools today. Northwestern has a concentration in it as does Vanderbilt, and Harvard has a course on Innovation in Legal Education and Practice.

Like it or not, as artificial intelligence takes over an increasing number of dreary legal tasks, there will be less room for dreary, plodding minds in law firms. The creative and innovative will survive.

This doesn’t worry us, because we’ve long talked about the need for creativity in fact finding. It’s even in the subtitle of my book, The Art of Fact Investigation: Creative Thinking in the Age of Information Overload.

The book takes up the message we have long delivered to clients: computers can help speed up searching, but computers have also made searching more complex because of the vast amounts of information we need to sort through.

  • Deadlines are ever tighter, but now we have billions of pages of internet code to search.
  • Information about a person used to be concentrated around where he was born and raised. Today, people are more mobile and without leaving their base, they can incorporate a dozen companies across the country doing business in a variety of jurisdictions around the world.
  • Databases make a ton of mistakes. E.g. Two of them think I live in the house I sold seven years ago.
  • Most legal records are not on line. Computers are of limited use in searching for them, and even less useful if figuring out their relevance to a particular matter.
  • Since you can’t look everywhere, investigation is a matter of making educated guesses and requires a mind that can keep several plausible running theories going at the same time. That’s where the creativity comes in. How do you form a theory of where X has hidden his assets? By putting yourself in his shoes, based on his history and some clues you may uncover through database and public-record research.

The idea that technological change threatens jobs is hardly new, as pointed out in a sweeping essay by former world chess champion Gary Kasparov in the Wall Street Journal.

Twenty years after losing a chess match to a computer, Kasparov writes: “Machines have been displacing people since the industrial revolution. The difference today is that machines threaten to replace the livelihoods of the class of people who read and write articles about them,” i.e. the writer of this blog and just about anyone reading it.

Kasparov argues that to bemoan technological progress is “little better than complaining that antibiotics put too many gravediggers out of work. The transfer of labor from humans to our inventions is nothing less than the history of civilization … Machines that replace physical labor have allowed us to focus more on what makes us human: our minds.”

The great challenge in artificial intelligence is to use our minds to manage the machines we create. That challenge extends to law firms. We may have e-discovery, powerful computers and databases stuffed with information, but it still requires a human mind to sort good results from bad and to craft those results into persuasive arguments.

After all, until machines replace judges and juries, it will take human minds to persuade other human minds of the value of our arguments.

Want to know more?

  • Visit charlesgriffinllc.com and see our two blogs, The Ethical Investigator and the Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.

This blog may be one of the few publications in the Western world that has never written the word “Kardashian,” but that has now changed. In the stories about the robbery in Paris of Kim Kardashian we found numerous issues that touch on the work we do.Kardashian Paris Investigation

After my recent book The Art of Fact Investigation came out in May, a number of people wrote to me and suggested another chapter in the next edition about what people could do to maintain privacy in the face some who may want to dig up facts on them.

The easy advice for Kim Kardashian-West: if you are on social media a lot with information about valuable possessions and your whereabouts, criminals will easily learn about your valuable possessions and your whereabouts. Big rings on Instagram? Not a good idea. The super-secret apartment hotel in Paris? With paparazzi following you everywhere, how secret is any place you go?

The harder advice both to accept and to act on relates to some speculation in the media that the crime was an inside job, because the thieves knew that Kardashian’s security guard was not on duty that night.

When we let others into our homes and into our lives, there is always the chance that one of those people may feed information to the outside. This is why many people like a preliminary background check of the electrician or plumber they are about to admit into their home. They like a more thorough look at someone who will watch their children. But Kardashian-West isn’t just dealing with plumbers and babysitters.

How many photographs are there of her bringing home groceries, for example? She eats therefore food is delivered by people. When she buys something large, that too is delivered. It is unlikely that she drives her car to Jiffy Lube when it’s time for an oil change. People drive for her.

We have written before about the value of talking to workers who have been in someone’s home. Movers, gardeners, handymen – all get to know the home to an extent and the people who work there. If one of them becomes estranged because they are fired or are not paid, they have every incentive to talk about the person they used to serve.

We are not saying that Kardashian-West has been betrayed by any of her staff. Only that when police found out that the bodyguard was off duty that night, they surely wanted to know: who else knew that? And they would have started the questioning close to home.

 

Want to know more?

  • Visit charlesgriffinllc.com and see our two blogs, The Ethical Investigator and the Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.

 

When your defense is that the law allows you to publish garbage without fear of prosecution, one takeaway is simple: the internet is filled with garbage that needs to be well verified before you rely on it.Internet searching

This blog thinks the Ninth Circuit got it right in exonerating Yelp this week from the lawsuit by a small business that was incorrectly identified in a negative Yelp ad. The decision is here.

While we feel terribly for the locksmith whose business was tarred with a brutally negative review that Yelp erroneously attached to his business, it seems clear that the court was right in deciding that Yelp was protected from prosecution by the federal Communications Decency Act.

The reasoning in Congress for this and other laws that grant safe harbor to internet facilitators of exchanges (of opinions, goods or anything else) is that if the internet sites were to be held liable for the contents of what they were portraying, the industry would shut down or need to charge a lot of money to compensate them for the risk.

As fact finders, we think the Yelp case is a handy example of why just about anything on line should be verified if you intend to make any kind of important decision based on what you read.

We recently had a case in which a negative review of a doctor became relevant in a malpractice case. Question one to us was: is this reviewer a real person and if so who is she? Based on her Yelp handle and city we managed to find her and to take a statement from her that turned out to be even more valuable than what she had posted on Yelp.

But what if “she” had turned out to be a competitor, an embittered but deranged former patient, or just a crank?

This is the not the first time we’ve written about this. In The Spokeo Lawsuit: Databases are Riddled with Errors we discussed a database that spits out some free information but then asks you to pay for more (often inaccurate) information.

As we tell our clients all the time (and as I’ve written in my book, The Art of Fact Investigation), even the most expensive databases confuse people with similar names, leave out key information such as where a person really lives or works, and are mostly hopeless with linking people and their shell companies.

The internet is a wonderful, useful and time-saving place, but there is no substitute for a good critical mind to sort investigative gold from the masses of garbage you find there.

 

Want to know more?

  • Visit charlesgriffinllc.com and see our two blogs, The Ethical Investigator and the Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.

 

It’s cloud illusions I recall

I really don’t know clouds at all

–Joni Mitchell

Today’s decision by the Second Circuit that Microsoft did not have to hand over data stored on its server in Ireland should remind us all that information isn’t just “out there.” As with printed information so it is sometimes with electronic data: physical location matters.

The court imposed a major limitation on the scope of a warrant issued under the Stored Communications Act. It reversed the Southern District of New York’s Chief Judge in quashing a warrant issued to Microsoft to turn over emails stored outside the United States. The full opinion is here.

This blog doesn’t usually get into the weeds when it comes to the Stored Communications Act, but we are intensely interested in how to find things and how to get them to the clients who need them.

The case reminds us that even though a lot more information than ever before is stored electronically, it still matters greatly where it is stored.  Crucially, electronic storage is not the same as accessibility via the internet.

Even in the U.S, most counties do not put all of their records on line. Those that purport to do so can have less than complete recordkeeping compared to the data that is searchable on site at the local courthouse.

Just the other day we read in the newspaper about an old case in Bergen County, New Jersey that would help our client. The case was nowhere to be found on line at the New Jersey courts website. When our retriever travelled to Bergen County, he was told that the case had been destroyed.

Were we out of luck? No. The same parties had gone at it in another New Jersey county, and had attached a copy of the Bergen County suit to the one in the other county. That other suit (also not on line but visible on the computers on site) had not been destroyed. We were then able to see what the Bergen suit was all about.

None of this was accomplished on the internet, which is just a series of boxes that sit in different rooms in different jurisdictions.

Which jurisdictions the boxes are in can make all the difference.

 

Want to know more?

  • Visit charlesgriffinllc.com and see our two blogs, The Ethical Investigator and the Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.

 

What lesson does the Brexit vote hold for anyone conducting or contemplating fact investigation?

Don’t let confirmation bias muddy your thinking.

One of the key “Investigator’s Enemies” identified in my book, The Art of Fact Investigation, confirmation bias is what many of us tend to do when looking into an issue: we find what we expect (or want) to find.

Avoiding Confirmation Bias
Avoiding Confirmation Bias

The big money in last week’s British referendum was in favor of remaining within the European Union. It wasn’t just that large banks, corporations and the people who work there supported “Remain,” but that these people bet more heavily on their preferred outcome than those betting on Brexit.

The result? Even though opinion polls consistently pegged the race as very close, bookmakers in the UK put the odds of a Brexit victory at as little as 10 percent, according to the Wall Street Journal.

How could this be? For the simple reason that bookies like to balance their bets. Even though all voters in the U.K. got evenly weighted votes, bookies don’t evenly weight all bets. If you want to bet $400,000 on Remain and someone else bets $100 on Brexit, the odds will go heavily toward the Remain camp – whatever the polls say.

That may be what happened last week. So much money went against Brexit that those making — or in sympathy — with that outcome started to believe the odds and not the opinion polls.

How would this kind of skewed thinking work in an investigation?

Since all the information we have gathered about Mr. Jones is that he is a “New York guy,” we will not spend serious time looking outside New York to see whether he may have a litigation history or any commercial presence outside the city. We then could miss the apartment he quietly bought for himself in Miami two years ago, along with the companies he runs out of that apartment.

With confirmation bias, we might dismiss the idea of a Florida base because if he had such a thing, someone would have found it by now.

As with Brexit, we would assume that all of the “smart money’ was on one outcome (Brexit/New York) that we expect we will find.

Instead, a little smart inquiring (perhaps a database search nationwide on Jones, or a look at bet sizes for Brexit) would make us more informed and less beholden to our prejudices.

All people hold some form of prejudice when they begin an investigation. You need to have some pre-existing idea of where to look, since you can never look everywhere for everything. What we aim for is the judicious balance between inspired guessing and submitting to confirmation bias.

Want to know more?

  • Visit charlesgriffinllc.com and see our two blogs, The Ethical Investigator and the Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.

A reader of my new book, The Art of Fact Investigation, suggested that for the next edition there should be a chapter about legal ways to “hide from snoopers, private and public sector. I am probably not the only one who was thinking as I read the book on what I could do to keep my life more private in general in this day and age, other than staying off Facebook and Twitter.”

Our firm believes in showing exactly how we get the information we get (plenty of examples in the book as well as on our two blogs). Therefore, we offer here free of charge a few pointers on how databases collect information about you and what kinds of things you can do to stay off them.

  1. Buy a house through a limited liability company that is not named in connection with you or anyone in your family. Base it not at your house or office but at the office of a trusted lawyer. Deeds and mortgages in the U.S. are public, so any home bought in your name will pop up, often on the internet free of charge if you live in a county that puts all such information on line. Some counties do, some don’t.
  2. When you move into the house and you want to register for discount cards at your local drugstore or grocery store, don’t. If you don’t mind lying, give them a different name and a made-up phone number. Those stores sell the information people submit to the databases. If you put your real name and number down, you will get calls the same day asking if you need contracting or other help with your new home. As long as you have the card with you or remember the phone number you used, you will still get your discounts.
  3. If possible, put utilities in a name different from yours. Gas and electric company information gets into databases.
  4. Buy a cell phone with cash and replenish it as you go.
  5. Be very careful about who gets your cell number. As in #2 above, if you order a pizza while visiting someone else’s house and provide your cell phone number to the pizzeria, the databases may associate your number and that address.
  6. Avoid borrowing money. This is a big one, but credit reporting agencies are allowed to sell some information to databases that relates to where you live. The databases won’t disclose how much you’ve borrowed and from whom without your approval, but will make use of “header” information that can reveal home addresses, numbers and associated businesses.
  7. Try not to sue people. We had a case in which someone hiding assets and claiming to be broke sued a neighbor. We were able to trace his car that had allegedly been damaged by the neighbor, and found that the car’s owner was a relative who jumped to the top of our list of people who could have been holding our man’s money for him.

In summary, unless you use cash and live an extremely quiet life as a renter, it is difficult to hide completely from the electronic information gathering available today. On the other hand, we report to clients on a regular basis that a particular person owns a home, has never been to court and has nothing of note about him in any database or newspaper.

We then recommend interviewing former colleagues and others who would know more about him.

Once you get to this stage, our advice is: be nice to others and they will probably say nice things about you too.

Want to know more?

  • Visit charlesgriffinllc.com and see our two blogs, The Ethical Investigator and the Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.

A story in today’s Wall Street Journal about “Why the Virtual Reality Hype is About to Come Crashing Down” makes the simple point that computers haven’t caught up to all the permutations of real life to make a “virtual reality” headset experience resemble a genuine experience.

A short demo is one thing, but life goes on after the short demo is finished.

philip segal the art of fact investigation.JPG

“The dirty little secret about [virtual reality] is that the hardware has run ahead of the content,” says the Journal.

My view is that catching up to real life is something that it is hard to see computers doing anytime soon, a point made in my recently published book, The Art of Fact Investigation: Creative Thinking in the Age of Information Overload.

The book makes the case that figuring out problems related to human behavior requires guesswork and the flexibility to change course when one series of guesses appears to be the wrong way forward. Computers are wonderfully flexible and free of emotional bias, but are completely unimaginative.

While computers can sort easily through data people enter onto their hard drives, they have a much harder time saying, “Here is something you should expect to find but do not.” Example: risk management programs failed to note the suspicious fact that Bernard Madoff’s alleged billions under management were audited by a tiny accounting firm in a suburban shopping mall. The computers did not say (because they were not programmed ahead of time to say), “I should be seeing a Big-Four auditor here but I don’t see it.”

But what about all the hype about “Big Data” and our ability to predict things based on billions or individual cases only a computer can keep track of?

The problem is that in some kinds of investigations (who is this particular person? What is the probable reaction of this particular company to litigation?) we don’t demand an answer about what other people or companies have done in the past.

Big data aggregates lots of individual results, but sometimes when the stakes are high, we want to disaggregate and find out what this particular person did at work eight years ago to prompt a departure left off a resume, or what this particular company’s board is like when faced with a lawsuit.

You won’t find those answers in any magical database. If you are lucky and smart, you will find some clues that will help you put together a probable story.

If that sounds less than the neat and tidy solution you were hoping for, who said real life was neat and tidy?

Want to know more?

  • Visit charlesgriffinllc.com and see our two blogs, The Ethical Investigator and the Divorce Asset Hunter;
  • Look at my book, The Art of Fact Investigation (available in free preview for Kindle at Amazon);
  • Watch me speak about Helping Lawyers with Fact Finding, here.