In July I wrote a post titled Computers Pick Outside Counsel Better than People Do, reporting on a NY Times article. The article’s broader point was that computers often decide better than do people. Remember, lawyers are people too. 

Maybe We Should Leave That Up to the Computer (NYTimes, 7/18/06) reports that “mathematical models generally make more accurate predictions than humans do.” Computers can best people in medical diagnoses, purchasing decisions, predicting grad school performance. Judgment and expertise are overrated. “Other cherished decision aids, like meeting in person and poring over dossiers, are of equally dubious value when it comes to making more accurate choices, some studies have found…” Beyond better outcomes, models have other advantages: codify and retain knowledge, teach newcomers reasoning processes, and immunity from fatigue.

Of course, not everyone believes this and the article reports the skeptics’ views. So, should some legal decisions be delegated to models? In thinking about this, consider the following:

  • Some of the online legal services I list here are, in a sense, models that provide users with answers.
  • I have written how formal risk analysis using decision trees can enhance decision-making in litigation. While not the algorithmic approach the Times article means, this approach moves away from “gut feel” to a more quantifiable and easily communicated view of a case.
  • My friend and mentor David Johnson (a professor at NY Law School) already experimented years ago (when he was a partner at Wilmer Cutler) with neural nets and genetic algorithms to determine whether a worker is an independent contractor or employee. A 20-factor test drives this; if the reported cases were properly translated into a large enough and well-structured data set (ok, a big if), then perhaps an algorithmic approach would work.
  • Lawyers (well, at least the forward thinking ones) are increasingly relying on “smart search engines” to reduce the cost of reviewing e-discovery documents.
  • Many documents are already created automatically by a wide range of “document assembly” tools. Two years ago articles reported on Cisco’s “Click-Accept” automated approach to contracting (see my post, Contract Management).

BigLaw CIOs do not need to budget for this in 2007 but it’s interesting to think about how our legal system would change if more decisions were computer-based.

9/18/06 Update: Add to the list above selecting a jurors in voir dire using a computer; see Computer Voir Dire, National Law Journal, 9/6/06.

9/19/06 Update: Dennis Kennedy has an interesting post referencing this: Computer-based Legal Decision-making in 2006 raises the question of whether “justice is something fuzzier, yet more comforting than pure accuracy.”