Anyone following artificial intelligence in law knows that its first great cost saving has been in the area of document discovery. Machines can sort through duplicates so that associates don’t have to read the same document seven times, and they can string together thousands of emails to put together a quick-to-read series of a dozen email chains. More sophisticated programs evolve their ability with the help of human input.

Law firms are already saving their clients millions in adopting the technology. It’s bad news for the lawyers who used to earn their livings doing extremely boring document review, but good for everyone else. As in the grocery, book, taxi and hotel businesses, the march of technology is inevitable.

Other advances in law have come with search engines such as Lexmachina, which searches through a small number of databases to predict the outcome of patent cases. Other AI products that have scanned all U.S. Supreme Court decisions do a better job than people in predicting how the court will decide a particular case, based on briefs submitted in a live matter and the judges deciding the case.

When we think about our work gathering facts, we know that most searching is done not in a closed, limited environment. We don’t look through a “mere” four million documents as in a complex discovery or the trivial (for a computer) collection of U.S. Supreme Court cases. Our work is done when the entire world is the possible location of the search.

A person who seldom leaves New York may have a Nevada company with assets in Texas, Bermuda or Russia.

Until all court records in the U.S. are scanned and subject to optical character recognition, artificial intelligence won’t be able to do our job for us in looking over litigation that pertains to a person we are examining.

That day will surely come for U.S records, and may be here in 10 years, but it is not here yet. For the rest of the world, the wait will be longer.

Make no mistake: computers are essential to our business. Still, one set of databases including Westlaw and Lexis Nexis that we often use to begin a case are not as easy to use as Lexmachina or other closed systems, because they rely on abstracts of documents as opposed to the documents themselves.

They are frequently wrong about individual information, mix up different individuals with the same name, and often have outdated material. My profile on one of them, for instance, includes my company but a home phone number I haven’t used in eight years. My current home number is absent. Other databases get my phone number right, but not my company.

Wouldn’t it be nice to have a “Kayak” type system that could compare a person’s profile on five or six paid databases, and then sort out the gold from the garbage?

It would, but it might not happen so soon, and not just because of the open-universe problem.

Even assuming these databases could look to all documents, two other problems arise:

  1. They are on incompatible platforms. Integrating them would be a programming problem.
  2. More importantly, they are paid products, whereas Kayak searches free travel and airline sites. In addition, they require licenses to use, and the amount of data you can get is regulated by one of several permissible uses the user must enter to gain access to the data. A system integration of the sites would mean the integrator would have to vet the user for each system and process payment if it’s a pay-per-use platform.

These are hardly insurmountable problems, but they do help illustrate why, with AI marching relentlessly toward the law firm, certain areas of practice will succumb to more automation faster than others.

What will be insurmountable for AI is this: you cannot ask computers to examine what is not written down, and much of the most interesting information about people resides not on paper but in their minds and the minds of those who know them.

The next installment of this series on AI will consider how AI could still work to help us toward the right people to interview.

By now, if a lawyer isn’t thinking hard about how automation is going transform the business of law, that lawyer is a laggard.

You see the way computers upended the taxi, hotel, book and shopping mall businesses? It’s already started in law too.  As firms face resistance over pricing and are looking to get more efficient, the time is now to start training people to work with – and not in fear of – artificial intelligence.

And be not afraid.
And be not afraid

There will still be plenty of lawyers around in 10 or 20 years no matter how much artificial intelligence gets deployed in the law. But the roles those people will play will in many respects be different. The new roles will need different skills.

In a new Harvard Business Review article (based on his new book, “Humility is the New Smart”) Professor Ed Hess at the Darden School of Business argues that in the age of artificial intelligence, being smart won’t mean the same thing as it does today.

Because smart machines can process, store and recall information faster than any person, the skills of memorizing and recall are not as important as they once were. The new smart “will be determined not by what or how you know but by the quality of your thinking, listening, relating, collaborating and learning,” Hess writes.

Among the many concrete things this will mean for lawyers are two aspects of fact investigation we know well and have been writing about for a long time.

  1. Open-mindedness will be indispensable.
  2. Even for legal research, logical deduction is out, logical inference is in.

Hess predicts we will “spend more time training to be open-minded and learning to update our beliefs in response to new data.” What could this mean in practice for a lawyer?

If all you know how to do is to gather raw information from a limited universe of documents, or perhaps spend a lot of time cutting and pasting phrases from old documents onto new ones, your days are numbered. Technology-assisted review (TAR) already does a good job sorting out duplicates and constructing a chain of emails so you don’t have to read the same email 27 times as you read through a long exchange.

But as computers become smarter and faster, they are sometimes overwhelmed by the vast amounts of new data coming online all the time. I wrote about this in my book, “The Art of Fact Investigation: Creative Thinking in the Age of Information Overload.”

I made the overload point with respect to finding facts outside discovery, but the same phenomenon is hitting legal research too.

In their article “On the Concept of Relevance in Legal Information Retrieval” in the Artificial Intelligence and Law Journal earlier this year,[1] Marc van Opijnen and Cristiana Santos wrote that

“The number of legal documents published online is growing exponentially, but accessibility and searchability have not kept pace with this growth rate. Poorly written or relatively unimportant court decisions are available at the click of the mouse, exposing the comforting myth that all results with the same juristic status are equal. An overload of information (particularly if of low-quality) carries the risk of undermining knowledge acquisition possibilities and even access to justice.

If legal research suffers from the overload problem, even e-discovery faces it despite TAR and whatever technology succeeds TAR (and something will). Whole areas of data are now searchable and discoverable when once they were not. The more you can search, the more there is to search. A lot of what comes back is garbage.

Lawyers who will succeed in using ever more sophisticated computer programs will need to remain open-minded that they (the lawyers) and not the computers are in charge. Open-minded here means accepting that computers are great at some things, but that for a great many years an alert mind will be able to sort through results in a way a computer won’t. The kind of person who will succeed at this will be entirely active – and not passive – while using the technology. Anyone using TAR knows that it requires training before it can be used correctly.

One reason the mind needs to stay engaged is that not all legal reasoning is deductive, and logical deduction is the basis for computational logic. Michael Genesereth of Codex, Stanford’s Center for Legal Informatics wrote two years ago that computational law “simply cannot be applied in cases requiring analogical or inductive reasoning,” though if there are enough judicial rulings interpreting a regulation the computers could muddle through.

For logical deduction to work, you need to know what step one is before you proceed to step two.  Sherlock Holmes always knew where to start because he was the character in entertaining stories of fiction. In solving the puzzle he laid it out in a way that seemed as if it was the only logical solution.

But it wasn’t. In real life, law enforcement, investigators and attorneys faced with mountains of jumbled facts have to pick their ways through all kinds of evidence that produces often mutually contradictory theories. The universe of possible starting points is almost infinite.

It can be a humbling experience to sit in front of a powerful computer armed with great software and connected to the rest of the world, and to have no idea where to begin looking, when you’ve searched enough, and how confident to be in your findings.

“The new smart,” says Hess, “will be about trying to overcome the two big inhibitors of critical thinking and team collaboration: our ego and our fears.”

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). There is a detailed section on logic and inference in the law.
  • Watch me speak about Helping Lawyers with Fact Finding, here. We offer training for lawyers, and I speak across the country to legal groups about the proper mindset for legal inquiry.
  • 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). It contains a discussion of open-mindedness.

[1] van Opijnen, M. & Santos, C. Artif Intell Law (2017) 25: 65. doi:10.1007/s10506-017-9195-8

 

What will it take for artificial intelligence to surpass us humans? After the Oscars fiasco last night, it doesn’t look like much.

As a person who thinks a lot about the power of human thought versus that of machines, what is striking is not that the mix-up of the Best Picture award was the product of one person’s error, but rather the screw-ups of four people who flubbed what is about the easiest job there is to imagine in show business.

Not one, but two PwC partners messed up with the envelope. You would think that if they had duplicates, it would be pretty clear whose job it was to give out the envelopes to the presenters. Something like, “you give them out and my set will be the backup.” But that didn’t seem to be what happened.

Then you have the compounded errors of Warren Beatty and Faye Dunaway, both of whom can read and simply read off what was obviously the wrong card.

The line we always hear about not being afraid that computers are taking over the world is that human beings will always be there to turn them off if necessary. Afraid of driverless cars? Don’t worry; you can always take over if the car is getting ready to carry you off a cliff.

An asset search for Bill Johnson that reveals he’s worth $200 million, when he emerged from Chapter 7 bankruptcy just 15 months ago? A human being can look at the results and conclude the computer mixed up our Bill Johnson with the tycoon of the same name.

But what if the person who wants to override the driverless car is drunk? What if the person on the Bill Johnson case is a dimwit who just passes on these improbable findings without further inquiry? Then, the best computer programming we have is only as good as the dumbest person overseeing it.

We’ve written extensively here about the value of the human brain in doing investigations. It’s the theme of my book, The Art of Fact Investigation.

As the Oscars demonstrated last night, not just any human brain will do.

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.

 

We have been asked in recent months to look at an uncommonly large number of expert witnesses, both for clients thinking of hiring experts and by people checking out the other side’s experts.expert witness due diligence.jpg

What an eye-opener. Nearly half of these people turned out to have something in their backgrounds that would give someone pause before hiring them. Consider just some of our findings:

  • A graduate degree that could not be verified (and which seemed suspicious because of a class rank in a field that doesn’t usually rank people);
  • A financial expert with multiple bankruptcies and tax liens in his recent history;
  • An expert who was not allowed to testify in his area of expertise last year in federal court because a judge held that he was not competent;
  • An expert who testified last year that his hourly rate was 20 percent lower than what he was proposing to charge our client.

Is there anything special about checking out an expert versus due diligence on anyone else? For the basics, the answer is no. Criminal and civil litigation everywhere they’ve lived and been based are a must for review. If the expert has a consulting company, check on litigation and liens for that too.

When it comes to the resume, you want to see not only that everything on there is accurate, but what’s been left off. Associations with companies and cases that did not end well have a way of falling off the resume to make room for uncontroversial jobs.

See also our entry from two years ago, Due Diligence on Expert Witnesses: Assume the Worst, here.

Our conclusions, now as then, could not be clearer.

  1. If you hire experts, do a basic public records and press search on them to verify that they have not been in serious trouble.  If your matter is worth millions and you are paying an expert tens of thousands, why not spend $2,500 to $5,000 and make sure your case won’t be derailed by something so easy to check?
  2. If you are an expert, clean up your resume and get the false stuff off of there before an inquisitive client finds out about it.

A wonderful new book called The Half-Life of Facts by Samuel Arbesman makes riveting reading for anyone in the business of gathering information. Don’t let the fact that the author is an applied mathematician scare you off.

Sand Castle photo.jpg

Arbesman keeps his examples mostly in the realms of science and general knowledge, and leaves the law alone. But this is a book for litigators, transactional lawyers doing due diligence, evidence mavens, and of course those of us who gather facts for a living (and teach law students how to do the same).

One of the book’s themes is that we don’t know as much as we think we do, for a whole bunch of reasons that resonate with us and some of our previous writing, including:

  • Things just change: information goes out of date (measured by half-life). It’s human nature not to want to recognize that. Arbesman reviews the “Semmelweis Reflex,” “the tendency to ignore information simply because it does not fit within one’s worldview.” This is related to its converse, confirmation bias, “where you only learn information that adheres to your worldview.”

The worst thing an investigator can do is to pre-suppose what he will find before looking at all the evidence. We talked about this in Avoiding Due Diligence Failure: Follow Up on All Red Flags. And while the Semmelweis Reflex is often at work, Arbesman says, “our blindness is not a failure to see the new fact; it’s a failure to see that the facts in our minds have the potential to be out-of-date at all.”

  • Information hides in plain sight. Knowledge is highly specialized and specialists don’t communicate among themselves. Arbesman’s father, a dermatologist, unearthed an old article about ALS (Lou Gehrig’s Disease) that made reference to an absence of bedsores in observed patients. He then came up with a way to measure the disease’s progression (something that had eluded researchers) by looking at the elasticity of the skin.

            We aim to make the same kind of connections in our work. What companies does a person own?  Some places allow you to look up companies by shareholders and directors, but some don’t. We look not just at a company registry but at who owns that person’s home and office. If it’s a company, we look up who appears to control that company by using a variety of records and techniques. Many investigators and most automated databases fail to connect the facts that John Smith owns a company, and that company owns the house John Smith lives in.

  • Lazyness (or more politely, overwork). One study Arbesman cites concludes that 80 percent of scientists who cite an article in their paper have not actually read the article cited.

 In “Good Investigations: A Second Opinion on Most Everything,” we wrote about the need to do our own interviews rather than rely on newspaper articles that contained possibly error-filled transcriptions.

             The book is packed with lots more such material, though it’s far from just a catalogue about how shallow and dumb people are. On the contrary, another theme is that we are extraordinarily resourceful, and the more people who look at solving a problem, the more likely that problem is to be solved.

             By being aware of all the ways we neglect changing facts, we can be even brighter.

GettyImages_126527789.jpgOn Election Day, it’s useful to remember that Speaker of the House Tip O’Neill’s famous assertion that “All politics is local” can apply to investigations as well

When we’re tasked with a public records search, our clients expect that we’ll review federal and state government records.  What they may not realize, though, is that an exhaustive public records search also requires digging through local public records, which may be a treasure trove of offline information unavailable elsewhere. 

Remember, though: There’s local and then there’s local

Think of it as gradually smaller geographic circles until you hone in on where the person you’re investigating actually lives or works, and where they’ve lived and worked in the past as well. 

Start with the state government. Here folks usually know what to expect:

  • Civil and criminal cases;
  • In some states, there are publically searchable statewide criminal records and sex offender lists;
  • Corporation records filed with the Secretary of State;
  • Business and professional licenses, though which businesses are regulated may vary from state to state; 
  • Personal and corporate liens and judgments, as well as UCC (Uniform Commercial Code) records; 
  • And, of course, states also track driving violations. 

Then there’s the county level. Forty-eight of the 50 states (excluding Connecticut and Rhode Island) have operational county governments. This means that counties are the source of:

  • Court records;
  • Real estate transaction details;
  • Licensing documents and regulatory and inspection records, including fines levied against a business or an individual;
  • UCC records and property rolls that might not be found at the state level.

Then there are city records

  • Some cities have their own courts, where there may be records of criminal and civil trials that are unavailable at the county level. In some cases this requires going to the individual municipal courts to find the information. 
  • Some municipalities also have licensing requirements for local businesses, so corporate information may be available at the city level.  For example, while investigating whether or not a government contractor was violating the terms of his agreement with our client and obtaining more work elsewhere, we uncovered a number of companies licensed at the municipal level in Missouri.  We researched all of the companies and found that one of them had recently bid on a military contract, violating his terms of employment with our client.  

And last but not least, there are town and village records to investigate

  • In many areas of the country, town and village law enforcement and court records are unavailable online, making individual town and village records only accessible in person. A good investigator will go personally or hire a researcher to sift through those records by hand. We have had cases where arrest records for violent crimes and for misdemeanors like shop lifting have only been uncovered through labor-intensive town records searches.  

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What does it really mean when an investigator says that they are going to do a background search on a person and track down all the relevant documents “on the public record”? Well, let’s start with what it doesn’t mean: bank documents and cell phone records are not public record.  Any investigator who tells you he can track these down for you is ostensibly promising to break more than a couple of laws to get you that information.  In addition, given that he’s acting as your agent, odds are it could get you in a heap of trouble as well.

So what can you expect instead?  Below is a list of the various public documents that you should expect from your investigator when investigating a person.  Future blog posts will detail similar lists for background research on companies and for asset searches.

For due diligence on an individual:

  • College or university enrollment and graduation information: Colleges and universities will often confirm if someone did or did not graduate from their institution.

  • Professional licenses and affiliations: If someone’s job requires a license (think doctor, accountant, attorney), public records will indicate if they are licensed and whether or not they are still in good standing with the licensing authority.  Similarly, any professional sanctions against someone whose work is licensed are often publically available.
  • Criminal behavior: Despite what cheap background search companies will tell you, there is no way to do a quick and easy nationwide criminal background search.  No central database compiles this information from the federal, state and local governments for anyone outside of law enforcement.  However, it is possible to do searches of federal records and of individual state and local records to confirm whether someone has ever been tried or convicted of a crime, or been the subject of a restraining order. Done right, this is done state by state or county by county.
  • Civil litigation: Public records will confirm whether someone has ever sued or been sued, although copies of the court documents are usually not available unless you go to the proper storage locations in person or hire a subcontractor to do that on your behalf.  Usually the most important documents are the complaint, answer and disposition of the case, as well as any judgment or notice that the case settled.  The complaint and the answer are especially helpful—they get to the heart of the case and often provide a summary of facts that can help fill in any gaps about the person’s involvement in the matter.
  • Corporate affiliations: Corporation records, filed with the Secretary of State in the state in which the company is doing business and where the company was originally incorporated, can help link a person to a private company.
  • Securities and Exchange Commission filings: Publically held companies are required to file information with the SEC, and these documents may link a person to a public company or provide information about their salary and any bonuses or stock options awarded. They are useful for turning up new addresses too.
  • Property records: Deeds and to land are publically available.  Furthermore, mortgaging information and liens against a property are as well.  Records of loans outstanding on other property, including cars, motorcycles, aircraft and watercraft are also available to the public.
  • Liens and judgments:  A search of litigation records and public-records databases will help determine whether someone has a judgment against them or has been subject to a state or federal tax lien.
  • UCC filings: If an individual has entered into a secured borrowing transaction with another individual or a company, then they should  have filed a Uniform Commercial Code (UCC) record detailing the transaction, including what items or equipment have been put up for collateral.  UCCs are available on the state and local level.
  • Bankruptcy records: Some clients are surprised to learn that bankruptcy records are not sealed.  You can determine whether someone has filed for bankruptcy using general database searches, and can usually obtain copies of the documents filed by paying only a small copying fee.
  • Media mentions: If something has been published in the press about a person, or posted online, then it’s definitely worth tracking down. Not all publications are on line, however. As with courthouses, your investigator may need to get out of the office to find what you need.
  • Driving record: The public record will provide information on driving violations. 
  • Voter registration records: Public records will detail where someone registered to vote and whether they are affiliated with any political party.
  • Political contributions: Every time someone gives money to a politician as an individual and not through a corporate entity, their name, the amount given and to whom will be made publically available.
  • Security/terrorism sanctions: This may seem unlikely, but it is worth doing a name search on the U.S. Treasury’s Office of Foreign Assets Control list, as well as Interpol, the International Financial Action Task Force and UN Sanctions lists.