Getting Inside A Judge’s Head

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

Getting Inside A Judge’s Head

12/05/2018

Joe Patrice: Hello, thanks to our new sponsor Smith.ai. Smith.ai is a superior virtual receptionist service for lawyers. US-based professionals answer your phone and website chats, screen potential clients and schedule appointments. Get a free trial at Smith.ai.

Elie Mystal: And now on to the show.

[Music]

Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

[Music]

Joe Patrice: Hello, welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. With me Elie Mystal.

Elie Mystal: Is it Christmas yet?

Joe Patrice: It is not yet Christmas, but —

Elie Mystal: But almost Hanukkah, right?

Joe Patrice: It yes, that’s true.

Elie Mystal: That’s super early this year.

Joe Patrice: That is true, that is true, that is true, and in a sense from a legal industry perspective it’s Christmas, because bonus season has started, so we’ve got that going for.

Elie Mystal: That’s a big — that’s a great point.

Joe Patrice: Yeah. So —

Elie Mystal: How you be?

Joe Patrice: I’m good, I’m good. What’s angering you today?

Elie Mystal: I actually wrote about what’s angering me today, which is –

Joe Patrice: Well, there you go.

Elie Mystal: Which usually that takes the edge off, but I’m still pissed about it.

Joe Patrice: Yeah.

Elie Mystal: All right guys, really quickly, you should probably read this on Above the Law but in case you haven’t yet, do not buy the Amazon Echo for Christmas, do not gift it for Christmas, that thing is a government stooge that you’re inviting into your house.

Now, this isn’t my normal — I’m afraid of robots thing. I mean, I am afraid of robots and that is normal for me, but this is not my normal version of that. There are actual legal issues here. There’s a case going on in New Hampshire where there’s some kind of murder mystery thing and the government wants to — has compelled Amazon to give Echo recordings from this person’s Alexa with a very weak finding of probable cause.

To me this is a clear Fourth Amendment violation and I think that one thing that people have to understand when you have these devices that the government is going to treat them most likely just like a personal computer.

So, your probable cause standard for the Alexa is going to be no better than your email. Your Fifth Amendment rights against self-incrimination are going to be protected no better than your personal email, and while mainstream legal scholars might think that that’s fine, I think that is extremely dangerous because unlike your personal computer, your personal email, where you are somewhat self-consciously recording your thoughts, the way that people use these devices were just talking to it, and you’re thinking that you’re talking in this ephemeral conversational way you have to understand that these things are actually recording you and the government can actually go in and find all those recordings, anything you say to Alexa can and will be used against you, which is why I don’t have them.

Joe Patrice: Yeah, no, they’re cool.

Elie Mystal: Of course you have.

Joe Patrice: I mean, yeah, I got it more, it kind of came for free, but —

Elie Mystal: That’s the thing I’m saying don’t — don’t gift these to people. You’re gifting them a Fourth Amendment violation.

Joe Patrice: I mean, true, and it is true that if you aren’t comfortable with the idea if that can happen you should probably not have one. Largely I don’t murder people, and in particular I don’t murder people by saying, Alexa, right before I do it, so I’m in pretty good shape, but —

Elie Mystal: You’ve never contemplated it?

Joe Patrice: Not saying Alexa before I do it.

Elie Mystal: I can absolutely see myself saying.

Joe Patrice: If I guess I could meet somebody named Alexa that I don’t like, but probably not.

Elie Mystal: Alexa, how do you dispose of bodies? I could say that, I could say that in a moment of anger. I could be watching the television and say that in a moment of anger to Alexa, and then later if someone still turns up dead, they are going to come for me.

Joe Patrice: It’s true, true.

Elie Mystal: That’s what’s grinding my gears.

Joe Patrice: Yeah, but it’s just so nice to control all my lights from, yeah.

Elie Mystal: Right, because that’s the other thing, right. I am not so lazy that I can’t get up and turn on my own goddamn stereo.

Joe Patrice: Oh yeah.

Elie Mystal: I don’t listen a lot of music.

Joe Patrice: Yeah, fair enough. So, all right, well let’s take a quick break and then we’ll come back.

[Music]

Joe Patrice: Are you missing calls? Are you spread too thin? Interruptions kill your productivity but clients demand a quick response. The US-based professional receptionists at Smith.ai help law firms screen new clients and schedule appointments by phone and website check, plus Smith.ai integrates with your software including Clio and LawPay. Plans start at just $60 per month. Get a free trial at Smith.ai.

[Music]

Joe Patrice: And we are back. So —

Elie Mystal: I am not a technophobe. I actually like technology. I am excited about the things that technology can do which brings us to today’s guest.

Joe Patrice: Yes, so you are afraid of a thing that analyzes what you say all the time.

Elie Mystal: I am afraid of robots.

Joe Patrice: So let’s have a conversation about a machine that analyzes what you say.

(00:05:02)

So we’re joined today by Josh Becker from LexisNexis and we’re going to talk about data analytics and some cool offerings that they have.

So welcome to the show.

Josh Becker: Thank you.

Joe Patrice: Well, okay, Elie’s got something.

Elie Mystal: Josh, I think your product is awesome.

Josh Becker: There we go.

Elie Mystal: I mean, that is, you are not paying any for that. That is not an ad, like I actually think that the technology contemplated by Context is amazing. So, please tell us about it.

Josh Becker: Great, well, yeah, Context just hit today, and it’s really about analyzing language, right? Extracting language, persuasive language from text and to get insights into what does this — what cases does this judge cite, what specific language in that case does that judge cite, how many times has he or she cited it? So, it’s really scouring tens and millions of documents to extract the language and case citations that that judge uses and relies on most.

There’s a second part of it too, which is a first and market thing that we’re super-excited about, which is for expert witnesses. So, a database of 380,000 witnesses that lawyers can analyze to depose the opposition or bulletproof their own expert witnesses.

So, it’s scouring that and you can see this witness has been denied say 38% of the time and here’s the theory, so in each case, so what was the met, if this theory was on methodology on relevance and what happened, what was the exact language that the court used.

So, yeah, Context is a super cool product. Thanks, I’m glad you like it and I am very proud about it.

Elie Mystal: Don’t let expert witnesses know that, they will use that to jack up their fees.

Josh Becker: Yeah.

Joe Patrice: I’ve seen some of the rudimentary stuff that went into this obviously before today’s announcement and some of the stuff you can do with the experts is really cool because for years it’s kind of been a wild wild west sort of situation like, oh, there’s an expert like I don’t know much about them, you could dig here and there and try and find what you could, but this really pops up just — this is every time they have talked, how many times they are on the plaintiff’s side, defendant’s side, how many times they’ve been challenged, it just really did when I was looking at it I was like, wow, this would have made my search for an expert way different, because at least when I was doing it was much more of a shotgun approach of just try and find people who seem like they had good credentials, and much nicer.

Josh Becker: Yeah, thanks. I feel that there’s some kind of holy grails out there and we’re still pursuing some of them on the analytics side, but I think experts has sort of been one of them, and it’s just really, really hard to do and for this product to come out and combine a lot of that Lexis had with the technology that Ravel had and 07:57 and other sources to come up with this, I think it’s super-exciting.

Elie Mystal: Joe, you’re talking about this from the perspective of corporate white-collar or defense stooge for the man.

Joe Patrice: Sure, absolutely.

Elie Mystal: What I like about this possibility is the way that it’s scalable and kind of gives grittier lower-level kind of plaintiffs’ lawyers a chance to — or criminal defense attorneys even, a chance to punch back, because I think that if you’ve never kind of looked at this work done and any research about this work or done this work yourself, the government is going to put on expert witnesses against your client and you aren’t necessarily going to have the resources to vet them. It sounds like this product is one of the ways that you as the kind of solo practitioner can start to vet the government or the corporation’s experts and find where the holes are in their background.

I guess, to phrase that as a question how kind of scalable and accessible is this technology for the small or solo practitioners?

Josh Becker: Well, I think it is and I think that gets to the broader promise of analytics and if you think back to Lex Machina, which I ran for seven years, started as a public interest project. It was for three years at Stanford a public interest project around openness and transparency for the law and when it spun out into companies, it’s like great, let’s keep tree for academics and judges and these kinds of folks.

So, I think a lot of these technologies, and if you think if you talk to Nick and Daniel in the early days of Ravel, they were very much motivated that way as well. So, I think these technologies have great promise. Again, ultimately about openness and transparency, one of the things I like about Lexis and it was honestly a big factor for us in sort of joining up with them from the Lex Machina perspective was that there’s a real commitment to the rule of law like Mike Walsh believes that very, very deeply, and part of the rule of law is transparency.

(00:09:54)

So, I do believe that this does provide access to the small guys, that access that maybe would only be available at a larger firm or not available at all, because just to scour through so many hundreds, thousands, or tens of thousands of cases to find a particular language would be hard to do, if not impossible otherwise.

Joe Patrice: Yeah. And we talked about the experts, but the stuff that it does with judges is very interesting, because when you are litigating you are going through and trying to find your good cases, your good language to put together, we think a lot of judges and the clerks who service them obviously as these kind of sponges that see all the cases that we are bringing to them for the first time and they really dig in and try and learn everything about them, and that’s not necessarily true.

I mean, they have pet language that they like. They have opinions that they have grown to rely on and believe in more. They are familiar with the facts of them and they are more willing to trust them, and one of the things that this advances over basically what we core think of LexisNexis as, which is that search engine, this takes it to that next level of saying, you know, you are in front of this judge, did you know that when they decide motions to dismiss they cite the exact same sentence from the exact same opinion over and over and over again and maybe you should know that?

Josh Becker: Yeah, judges are human and they have patterns of behavior and that’s really — again, people talk about robots and we were sort of joking earlier about robots and law. I go out and speak — a lot of what I do now is speak to managing partners, law firms and general counsels and other audiences, people always ask, are robots going to take over law? And the answer is no, and there’s been a lot of studies on this and this could be a whole separate topic, but there is the big study that McKinsey did and then one out of MIT and UNC looking into tasks that lawyers do and what can actually be automated and one came up with 13%, one came up with 23%, but it was a pretty small amount of tasks.

But what the machine is good for, or what technology is good for is machine learning, finding patterns in data. That’s really the core of what machine learning is, and Context is a big user of machine learning and it’s basically to comb through those tens of millions of documents to find those patterns. And what you said is a pattern, there is a pattern here in terms of which language that this judge cites and now you can argue persuasively knowing the language that your judge wants to hear and I think that’s super-exciting.

Elie Mystal: I would be remiss if I didn’t try to at least talk about the downsides from my technophobe — again, not actually a technophobe perspective, but look, people do get freaked out when Facebook knows what kind of car you are going to buy before you walk into the dealership. Like people do get freaked out when the algorithm, the machine can figure out what you prefer before you have even kind of consciously thought of that.

With Context, I mean you really are looking at the possibility of having lawyers know what the judge is going to read before they write their brief, and so specifically tailoring their arguments to that particular judge, is there a worry that the case by case — case and controversy nature of the law gets subsumed into this judge-specific type of argumenting; argumenting, that’s not actually a word, I am sure the machine knows that, these kind of judge-specific type of arguments that Context is a thing that kind of allows us to do better than ever before.

Josh Becker: Well, as with any new technology, yes, it’s good to look at the possible downsides. I think that the law is constantly evolving and if judges were quite so predictable, then there would be maybe larger issues. But there are great insights that you can glean from this.

And what’s fun is over the time we have been able to show it to judges, judges really like it. They want to see, oh, what do you have on me, right? In Lex Machina, the first thing people say is, look me up, what have you got on me? And they might look at that and they may say oh, yes, I guess I am kind of predictable, maybe I need to rely on something else.

So you never know, it is kind of evolving here, but it’s good to look at those cautions, but I don’t think we are anywhere near there yet.

Elie Mystal: See, I love that answer, because I actually — I mean I think that that’s one of the other real benefits of this kind of technology. Judges don’t get training and they don’t — judges aren’t there for the CLE, they are not exactly self-aware and they are not always kind of putting in the work to evolve themselves.

(00:14:52)

I would like to imagine that, at least for the good ones, that putting this kind of information in front of them, we use sports analogies a lot in the show, it’s like a tendency breaker. Like one of the things that great football or basketball coaches do is self-scouting and they understand their own tendencies and that helps them evolve and grow and be better and I feel like this is — this kind of tool is how judges can potentially do the same thing, right Joe?

Joe Patrice: Yep, yep, yep, no, absolutely.

Elie Mystal: You are not going to — you are going to agree with me on the sports analogy?

Joe Patrice: I did.

Josh Becker: Yeah, it’s funny what you say about sports analogies, because I use a lot of sports analogies and one of the early examples of Context, really going back to the Ravel days, a slide I used to show was a certain judge, who this particular customer used to find that this judge does not like sports analogies and I was telling that story to a few managing partners and one of them said yeah, I have an exact situation. I was in San Diego, I made a Tony Gwynn sports analogy and the judge totally slapped me down, this is not baseball.

Elie Mystal: See, I think that’s awesome.

Joe Patrice: Yeah. And one of the things that this does, talking about potential downsides, one thing that it does and it will never fully replace them, but it changes the relationship you have for those of us who did kind of national level litigation, it changes that relationship with the local counsel, because the local counsel used to be your only insight for these sorts of nuggets. Now you can look at them yourselves.

Elie Mystal: I didn’t even think of that.

Joe Patrice: One of my favorite stories from my career, I wasn’t involved in this story, but I was told this very early. So when I was a young lawyer at a large firm I got told that you need to care about your local counsel, and the reason was they were litigating a case in New Hampshire I believe and the judge — it was an intellectual property case and a local counsel was like things you need to know about this judge and told them this fact that I am going to hold in reserve here for a second, and then moments later the other side said, the reason why this intellectual property case is so easy judge is, this isn’t rocket science, yadi, yadi, yada.

And what the local counsel had told our people is Judge McAuliffe’s wife Christa was on that Challenger that blew up. And that’s an insight that you might not have necessarily had back in the day when everything wasn’t digital, but the local counsel is like here are things you need to know before you start having a conversation about science with this guy, and that was valuable.

But now these are the sorts of things that obviously we have more digital scouting on judges, but now we are going to have even more analytical scouting of just what their tendencies are that sometimes that seasoned local counsel isn’t going to know. I mean they are still valuable for a myriad of other reasons and filing and so on and so forth, but I think it could change that relationship. I don’t know. I have rambled for a bit there.

Josh Becker: Well, I think it’s interesting, with Lex Mach, we didn’t know if local counsel in Delaware say or in the eastern districts would sign up for the product, because that’s kind of their job to know everything. And lo and behold, they actually did sign up for it, because they knew a lot, they had a lot of insight from their years there, but they also wanted the — again, they don’t have 1,000 cases top of mind. They still wanted access to the strategy analytics of Lex Mach.

Again, it’s the complement now that we are launching with the language analytics of Context, but I remember that was like a big deal, we are like hey, will these guys actually sign up, and lo and behold, they did, they signed up as well, so that was fun.

Joe Patrice: I mean it’s so addictive, like when you play around with this stuff, you really do like it. Like you said, the judges first thing they want to know is what you have on you, like that’s — it’s so true. When you start playing with it, you are like ooh, wait, I wonder, and you have hunches that you want to see if the data really back out. It’s a fun little toy to play with, and obviously, it’s more serious than a toy, but yeah, you can have a lot of fun with it too.

Elie Mystal: Josh, honestly, anytime you guys want to make this data — kind of give us a dataset that we can turn into a post on Above the Law, I am down for it. I want to know which judges like oranges for breakfast and which ones like grapefruits, like I want to know that. I can make a whole post about that and I can get people to read it.

Josh Becker: Excellent, excellent. Well, yeah, we will talk afterwards.

Elie Mystal: Yeah.

Joe Patrice: Well, great. This was so informative. Thanks for talking to us about this product. I guess some housekeeping details to go through are that I believe I am right in this that people who have Lexis accounts right now are going to have I think a month’s worth of access to this before having to add it to their subscription, is that right?

Josh Becker: That’s above my pay grade.

Joe Patrice: Okay. I think that’s right.

Josh Becker: I am not sure to be honest.

Joe Patrice: Well, I think that’s correct. I saw a press release that said something to that effect, may not have all the details right, but the law school faculty and law school folks, they are going to have access and folks who already have Lexis subscriptions will have a trial run to get used to it, test it out and hopefully then sign up. So that’s exciting coming forward.

(00:20:03)

Thanks so much for joining us. That’s Josh Becker from LexisNexis talking about analytics generally, but in particular their new product Context.

Thanks everyone for listening today. If you don’t already subscribe to the podcast, you should. You should also give it a review. You should read Above the Law. You should listen to other Legal Talk Network shows. You should follow us on Twitter. He is @ElieNYC. I am @JosephPatrice.

And with all of that, we will talk to you next time.

Elie Mystal: Alexa, kill yourself.

Joe Patrice: Yeah. Well, okay, see, now somebody is listening to this like over a speaker, like their Alexa just set off. See, that’s just cool. All right. Bye.

[Music]

Outro: If you would like more information about what you heard today, please visit legaltalknetwork.com. You can also find us at abovethelaw.com, atlredline.com, iTunes, RSS, Twitter, and Facebook.

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

[Music]

Continue Reading