due diligence; databases; spokeo; background checks; asset searches; information management;

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.

Do you ever wonder why some gifted small children play Mozart, but you never see any child prodigy lawyers who can draft a complicated will?

The reason is that the rules of how to play the piano have far fewer permutations and judgment calls than deciding what should go into a will. “Do this, not that” works well with a limited number of keys in each octave. But the permutations of a will are infinite. And by the way, child prodigies can play the notes, but usually not as soulfully as an older pianist with more experience of the range of emotions an adult experiences over a lifetime.

You get to be good at something by doing a lot of it. You can play the Mozart over and over, but how do you know what other human beings may need in a will, covering events that have yet to happen?

Not by drafting the same kind of will over and over, that’s for sure.

Reviewing a lot of translations done by people is the way Google Translate can manage rudimentary translations in a split second. Reviewing a thousand decisions made in document discovery and learning from mistakes picked out by a person is the way e-discovery software looks smarter the longer you use it.

But you would never translate a complex, nuanced document with Google Translate, and you sure wouldn’t produce documents without having a partner look it all over.

The craziness that can result from the mindless following of rules is an issue on the forefront law today, as we debate how much we should rely on artificial intelligence.

Who should bear the cost if AI makes a decision that damages a client? The designers of the software? The lawyers who use it? Or will malpractice insurance evolve enough to spread the risk around so that clients pay in advance in the form of a slightly higher price to offset the premium paid by the lawyer?

Whatever we decide, my view is that human oversite of computer activity is something society will need far into the future. The Mozart line above was given to me by my property professor in law school and appeared in the preface of my book, The Art of Fact Investigation.

The Mozart line is appropriate when thinking about computers, too. And in visual art, I increasingly see parallels between the way artists and lawyers struggle to get at what is true and what is an outcome we find desirable. Take the recent exhibition at the Metropolitan Museum here in New York, called Delirious: Art at the Limits of Reason, 1950 to 1980.

It showed that our struggle with machines is hardly new, even though it would seem so with the flood of scary stories about AI and “The Singularity” that we get daily. The show was filled with the worrying of artists 50 and 60 years ago about what machines would do to the way we see the world, find facts, and how we remain rational. It seems funny to say that: computers seem to be ultra-rational in their production of purely logical “thinking.”

But what seems to be a sensible or logical premise doesn’t mean that you’ll end up with logical conclusions. On a very early AI level, consider the databases we use today that were the wonders of the world 20 years ago. LexisNexis or Westlaw are hugely powerful tools, but what if you don’t supervise them? If I put my name into Westlaw, it thinks I still live in the home I sold in 2011. All other reasoning Westlaw produces based on that “fact” will be wrong. Noise complaints brought against the residents there have nothing to do with me. A newspaper story about disorderly conduct resulting in many police visits to the home two years ago are also irrelevant when talking about me.[1]

The idea of suppositions running amok came home when I looked at a sculpture last month by Sol LeWitt (1928-2007) called 13/3. At first glance, this sculpture would seem to have little relationship to delirium. It sounds from the outset like a simple idea: a 13×13 grid from which three towers arise. What you get when it’s logically put into action is a disorienting building that few would want to occupy.

As the curators commented, LeWitt “did not consider his otherwise systematic work rational. Indeed, he aimed to ‘break out of the whole idea of rationality.’ ‘In a logical sequence,’ LeWitt wrote, in which a predetermined algorithm, not the artist, dictates the work of art, ‘you don’t think about it. It is a way of not thinking. It is irrational.’”

Another wonderful work in the show, Howardena Pindell’s Untitled #2, makes fun of the faith we sometimes have in what superficially looks to be the product of machine-driven logic. A vast array of numbered dots sits uneasily atop a grid, and at first, the dots appear to be the product of an algorithm. In the end, they “amount to nothing but diagrammatic babble.”

Setting a formula in motion is not deep thinking. The thinking comes in deciding whether the vast amount of information we’re processing results in something we like, want or need. Lawyers would do well to remember that.

[1] Imaginary stuff: while Westlaw does say I live there, the problems at the home are made up for illustrative purposes.

Decent investigators and journalists everywhere ought to have been outraged at news over the weekend in the Wall Street Journal that appears to have caught a corporate investigator masquerading as a Journal reporter.

According to the story, the person trying to get information about investment strategy and caught on tape pretending to be someone he wasn’t was “Jean-Charles Brisard, a well-known corporate security and intelligence consultant who lives in Switzerland and France.”

Fake news we know about, but fake reporters? It’s more common than it should be. Free societies need a free press, and for a free press to work people have to be able to trust that a reporter is who he says he is.

Good investigators working for U.S. lawyers should not pretend to be someone they are not – whether the fake identity is a journalist or some other occupation. Whether or not it breaks a state or federal impersonation statute, it’s probably unethical under the rules of professional responsibility.

Consider Harvey Weinstein’s army of lawyers and their investigators. The evidence was presented in Ronan Farrow’s second New Yorker piece on Weinstein that hit the web last night. The story says that Weinstein, through lawyer David Boies, hired former Mossad agents from a company called Black Cube.

“Two private investigators from Black Cube, using false identities, met with the actress Rose McGowan, who eventually publicly accused Weinstein of rape, to extract information from her,” the story says.

It goes on to explain that one of the investigators used a real company as cover but that the company had been specially set up as an empty shell for this investigation. The name of the company was real, but its purpose was not (it was not an investment bank). Worse, the investigator used a fake name. Courts have said this can be OK for the agents of lawyers if done in conjunction with an intellectual property, civil rights or criminal-defense matter. This was none of these.

The journalism aspect of the Weinstein/Black Cube investigation is (if accurate) just as revolting, involving a freelance journalist who was passing what people said to him not to a news outlet but to Black Cube. This produces the same result as the Brisard case above. Why talk to a journalist if he a) May not be a journalist or b) Will be passing your material on directly to the person he’s asking you about?  The freelancer in question is unidentified and told Farrow he took no money from Black Cube or Weinstein. Volunteerism at its most inspiring.

And where were the lawyers in all of this unseemliness? Boies signed the contract with Black Cube, but said he neither selected the firm nor supervised it. “We should not have been contracting with and paying investigators that we did not select and direct,” Boies told Farrow. “At the time, it seemed a reasonable accommodation for a client, but it was not thought through, and that was my mistake. It was a mistake at the time.”

Alert to lawyers everywhere: it was a mistake “at the time” and it would be a mistake anytime. Lawyers are duty-bound to supervise all of their agents, lawyer and non-lawyer alike. When I give my standard Ethics for Investigators talk, ABA model rule 5.3(c)(1) comes right at the top, as in this excerpt from my recent CLE for the State bar of Arizona:

A lawyer is responsible for a non-lawyer’s conduct that violates the rules if the lawyer “orders or, with the knowledge of the specific conduct, ratifies the conduct involved.”

“Ratification” can in some cases be interpreted as benign neglect. An initial warning “Just don’t break any rules” won’t suffice. The nightmare scenario is the famed Winnie the Pooh case in California, Stephen Schlesinger, Inc. v. The Walt Disney Company, 155 Cal.App.4th 736 (2007).

Schlesinger’s lawyers hired investigators and told them to be good. Then the investigators broke into Disney’s offices and stole documents, some of them privileged. The court not only suppressed the evidence, but dismissed the entire case. Part of the reasoning was that Schlesinger’s lawyers, after that initial instruction, did no supervising at all.

Black Cube may not have committed any crimes, but appears from the facts in the story to have gone over the ethical line in pretending to be people they were not. Boies (or any other lawyer in a similar position) should have tried to make sure they would do no such thing. What Black Cube did was everyday fare for Mossad, the CIA and MI6, but not for the agents of U.S. lawyers.

One lawyer we know has a stock answer when clients ask him how good their case is: “I don’t know. The courts are the most lawless place in America.”

What he means is that even though the law is supposed to foster predictability so that we will know how to act without breaking our society’s civil and criminal rules, there is a wide variety of opinion among judges even in the same jurisdictions about the matters that make or break a case on its way to a jury.

Our friend’s answer came to mind while reading an interesting roundup of experienced trial lawyers over the weekend about why the trial of Bill Cosby outside Philadelphia resulted in a deadlocked jury and mistrial, announced on Saturday.

In the New York Times, the attorneys mostly fell into two camps: those who thought lead witness Andrea Constand presented the jury with credibility problems because of inconsistent testimony, and those who thought the judge’s decision to limit the admission of evidence of many other similar allegations substantially weakened the prosecution’s case.

My view is that the two reasons are linked: evidence that many women have made claims similar to Constands’ could easily have overcome the credibility problem if the jury had been able to hear about many of the other women who alleged Cosby had drugged and had sexual contact with them too.

In another case with identical facts and a different judge, the other accusers may have made it in a great example of two things we tell clients all the time:

  1. Persuasive evidence is good, but admissible evidence is what you really want when you know you’re going to trial.
  2. A lot of legal jobs are now being done by computers, but while there are human judges they will differ the way humans always do: in a way that is never 100% predictable.

Admissibility

When we are assigned to gather facts in civil or criminal matters, all of the evidence we get must always be gathered legally and ethically. Otherwise it could easily turn out to be inadmissible. But even if you do everything right, admissibility is sometimes out of your control. The whole case can turn on it.

If all you are doing is trying to get as much information as you can without any thought of taking it to trial, then admissibility may not be much of a concern. Think about deciding whether someone is rich enough to bother suing using hearsay evidence; or finding personally damaging information that may be excluded as prejudicial, but even the thought of arguing a motion about that information would be too much for the other side to bear. It could increase the chance of a more favorable settlement for you.

In the Cosby case the information in question would have been very helpful to the prosecution.

Ordinarily the justice system doesn’t like to see evidence of other bad acts used in a case to paint a picture of  a defendant’s character. Rule 404 (b) of the Federal Rules of Evidence excludes this kind of thing, but allows admission of evidence of another act “as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

So the prosecution could have argued that all the other accusers making similar claims that they were drugged and subjected to sexual contact were evidence of Cosby’s intent, or a lack of accident, and may even have been seen as preparation for the time Constand went to Cosby’s home and was drugged.

But the judge wouldn’t let any of that in. In Pennsylvania, the rules in this section are tougher on the prosecution than are the federal rules. The state’s rule 404(b) (2) “requires that the probative value of the evidence must outweigh its potential for prejudice. When weighing the potential for prejudice of evidence of other crimes, wrongs, or acts, the trial court may consider whether and how much such potential for prejudice can be reduced by cautionary instructions.”

It seems that the judge was afraid that even warning the jury not to read too much into the other accusers would have prejudiced them even if he instructed them that the other accusers alone did not constitute proof of Cosby’s guilt — in this matter with Constand.

Unpredictability

The legal world is justifiably occupied in trying to figure out how to reduce costs by automating as many tasks as possible. Gathering of some facts can be automated, but not always, for the simple reason that facts are infinitely variable and therefore not wholly predictable.

Implicit in fact gathering is evaluating the facts you get, as you gather them. You are constantly evaluating because you can’t look everywhere, so promising leads get follow-up, the others don’t. Machines can scan millions of documents using optical character recognition because there are only so many combinations of letters out there. But the variety of human experience is limitless.

If machines can’t be trusted to properly evaluate someone’s story, imagine the problems if that story has never been written down. Think about all the things you would not want the world to know about you. How much of all of that has been written down? Probably very little. It was human effort alone that developed the other witnesses the prosecution wanted to call.

The only way a computer might have helped in this case would have been to predict – based on prior cases – which way the judge would rule in excluding the other evidence. Even that would be a tough program to write because these decisions turn on so many unique factors. But since judges are chosen at random, it wouldn’t have helped shape the decision about whether or not to charge Cosby.

Want to know more about our firm?

  • Visit charlesgriffinllc.com and see our two blogs, this one 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.
  • If you are member of the ABA’s Litigation Section, see my piece in the current issue of Litigation Journal, “Five Questions Litigators Should Ask: Before Hiring an Investigator (and Five Tips to Investigate It Yourself).

Another EB-5 visa fraud, more burned investors. For people outside the United States trying to pick a reputable investment that will get them permanent residency in the U.S., sorting through hundreds of projects is often the hardest part of the job.

EB-5 due diligence

There is plenty written about what you should do before you invest, one of the latest guides being from the North American Securities Administrators Association, here. You can read up on EB-5 frauds here.

What are the warning signs of fraud? Last year’s revelation of a huge fraud at a Vermont development that had sucked in hundreds of investors led many to wonder, “How could we have known this would blow up?”

There is no guaranteed way to find fraud, but if you see things that would give a prudent investor pause; if the project’s sponsors don’t have a good track record; if you don’t understand the risks of the project (and they all have risks) walk away.

Remember, many reputable immigration lawyers refuse to recommend an EB-5 investment because they don’t want to be sued if the investment encounters problems, whether of a normal business variety or because of fraud. Even if your lawyer recommends an investment, you should still perform due diligence on the project.

Even more surprising to some non-Americans, once the government spots EB-5 fraud, it’s often too late for the investors who have put in their money. Sometimes investors can recover and sometimes not, but the green cards they wanted will not be delivered and they have lost time in addition to money.

Looking at the track record of a developer is much easier than going through the hundreds of pages of documents you and your lawyer will need to examine before you invest your money. You will always need to do both, but as you sort through five or ten possible investments, start with the track records.

The Vermont Fraud Warning Signs

One of the most celebrated of all the projects was the group of investments in the northeastern state of Vermont, near the border with Canada. Jay Peak was an old ski hill that fell into the hands of a Canadian operating company. They began with the EB-5 program by raising money for one project, but then in 2008 the Canadian company sold the business to a man local press described as “mysterious,” Ariel Quiros. He grew up in New York, was of Puerto Rican and Venezuelan background, but had spent years in Korea building unspecified businesses which supposedly gave him the ability to buy Jay Peak for $25 million.

Once Quiros bought the mountain, the EB-5 projects accelerated, with six more projects for hotels and finally, before the scheme was exposed, a bio-technology park that was supposed to flourish among the ski hills and dairy farms of far-northern Vermont.

The main thing an investor should have asked about Jay Peak was, who exactly is Ariel Quiros, the owner? The whole sickening unravelling of the investment project is available at vtdigger.org (going from most recent to oldest story). But anyone investing after January 14, 2014 would have had an easy way to throw this one in the waste basket. A Vermont Digger article available on line described Quiros’ track record this way:

  • He lost his seat on the board of Bioheart Inc. after AnC Bio [Quiros’ company] failed to make the second installment in a $4 million investment.
  • Quiros also survived a Texas lawsuit in which two investors alleged breach of contract after they didn’t get their money back in full in 10 years.
  • And a Florida man claims he never received almost $16,000 worth of equipment from a [Quiros] company called Q Vision, but he appears to have dropped his pursuit of the matter.

Of course, full due diligence could involve verifying the assertions in this article, but if they turned out to be true, who would entrust half a million dollars and a green card to someone with a track record of not following through on investments and unhappy investors alleging breach of contract?

If Quiros occasionally had disputes with investors and partners, you would also ask a more basic question: how did he make his money – the money that bought Jay Peak — in the first place?

The article in January 2014 said,

“Quiros has melded street smarts from New York, military sensibilities from the Korean Demilitarized Zone and a love of adventure into a business empire that spans the globe, starting with international trade from Korea in the early 1980s… GSI Group, where he got his start in Korea, imported and exported goods ranging from shoes to women’s blouses to radios…He specialized in raw materials, much of it for the Korean government, he says.”

In addition, Bloomberg says that “Mr. Quiros serves as a Director and Principal of GSI Group, a raw materials procurement company for the South Korean manufacturing community with offices in Seoul, Beijing, Sydney, Hong Kong and Miami.”

The only problem is, GSI is one difficult company to find. Quiros shows up on open-source databases as a corporate officer of 96 companies, but these are all in Florida, Panama and Vermont. None of the Florida companies are called GSI.

On line, there is www.GSIkoreanet., but this mentions no overseas offices. GSI Australia’s website says it is a company dealing in poultry, swine and grain. There are no Korean links evident. And it is based in Queensland and Victoria, not New South Wales where Sydney is. The Australia companies registry provides no evidence of any Korean trading company registered in New South Wales.

In Hong Kong, a search of directors of all Hong Kong companies shows that nobody named Quiros and no company called GSI directs any Hong Kong company.

A search of regulatory filings in the U.S. turns up nothing on Quiros until 2010, after he bought Jay Peak. A news search on Bloomberg turns up only GSI Group Inc., a maker of agricultural equipment.

The earliest mention of Quiros in securities filings in the U.S. is in 2011, as an investor in a U.S. biotech company. His Korean address in this filing was: 10th Floor, H&S Tower, 119-2 Nonhyun-Dong, Gangnam-Gu, Seoul, Korea 135-820. A reverse search of this address turns up nothing on GSI.

Are we therefore stunned to learn today that according to the U.S. Securities and Exchange Commission, Quiros never used his own money to buy Jay Peak in the first place? Instead, according to the judicial complaint filed in 2016, Quiros took money investors had already put into Jay Peak when it was owned by the Canadians, and used that cash to buy the ski resort.

Subsequent cash that came in for new projects funded prior projects, but eventually the game was up when Quiros told investors that their hotel project was cancelled and converted into a loan. They would get their money back, he promised, but green cards would not be forthcoming. Quiros is fighting the SEC, while his President has settled with the agency.

In the Bernard Madoff Ponzi scheme, there were red flags that sent many prudent investors away: a small-time accountant for what was supposed to be a multi-billion-dollar enterprise, and no independent custodian for the investor money.

In the case of Quiros and the Vermont project, a history of unhappy investors and a murky source of funds should have been enough for investors to say, “Not this one.”

 

About the firm:

Charles Griffin Intelligence is an independent consulting firm that performs investor due diligence for hedge funds, corporations and individuals both inside and outside the United States. We never do work for any EB-5 developer or regional center. We do not provide legal advice, but can help investors and their lawyers assess the business risk of an investment.

For more information about the firm, please see the website at www.charlesgriffinllc.com. You can also read our blog, The Ethical Investigator, at www.ethicalinvestigator.com

 

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.

What to do when the databases you rely on start stripping out the very data you are paying for?Due diligence databases

Word in today’s Wall Street Journal that the main credit reporting firms will be removing many civil judgments and tax liens from credit reports prompts us to restate one our core beliefs:

Not only do databases routinely mix people up, they are far from complete in the information they contain.

Now, they will be even farther away from complete, because in order to list adverse information the credit reporting companies want several identifiers on each piece of information before they include it in a credit report. Even if there is only one person in the United States with a particular name, if his address and Social Security number are not included in a court filing against him, that filing may never make it onto his report. From what we’ve seen, there are almost no SSN’s in most of the filings we review.

As a result of this new policy, the credit scores of a lot of people are about to go up, says the Journal.

To answer the question posed at the top of this posting: what you do is you go after the information yourself. You (or a competent pro you hire) looks at databases and courthouse records for liens, litigation and other information people use every day to evaluate prospective associates, counterparties and debtors. If there’s enough money at stake, you may want to conduct interviews, not only with references but with people not on the resume.

The idea that databases are missing a lot is old news to anyone who stops to take a careful look.

The next time you are searching in a paid database, you may notice a little question mark somewhere around the box where you enter your search terms. Click on that and prepare to be shocked.

“Nationwide” coverage of marriage licenses may include only a handful of states, because such licenses are not public information in many jurisdictions. In other cases, the information is public but the database doesn’t include it because it’s too expensive to gather data that has not been scanned and stored electronically.

Of course, sending someone to a courthouse costs more than a few clicks performed while sitting at your desk. But does it cost more than lending to the wrong person who defaulted on a big loan six months ago?

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.

 

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.