How to make all lawyers look bad

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One could not miss the flurry of litigation that followed the latest U.S. elections, which appear to be continuing weeks after the result seemed certain.

One could also be amazed at the lengths some of the Trump campaign lawyers have taken in order to argue their case. Certainly, lawyers must fiercely advocate for their clients, but this advocacy must have limits. A lawyer should not contort facts, law or themselves in an unbridled zeal to get a favorable decision.

Philadelphia attorney Jerome M. Marcus contorted himself in arguing that Republican observers did not have an opportunity to oversee the vote counting.

Judge Diamond: “Are your observers in the counting room?”

Marcus: “There’s a non-zero number of people in the room.”

Non-zero. I stopped and thought about that for a while. A helpful definition from Sciencing.com states that any number, whether positive or negative, that does not equate to zero essentially represents a nonzero number. Therefore, in theory, the Trump campaign could have had a negative number of scrutineers. Theorizing further, negative people — in space, not attitude — take up less room. So they could have had even more negative scrutineers.

However, the lawyer simply avoided answering the court’s question. Judge Diamond pressed the point. 

Diamond: “I am asking you as a member of the bar of this court: are people representing the plaintiffs in the [counting] room?”

Marcus: “Yes.”

(Having the court remind you that you are member of the bar is equivalent to your mother calling you by your first, middle and last name. You are in trouble.)

Diamond: “I’m sorry, then what’s your problem?” 

Trump’s team conceded the point and the two sides agreed to increase the level of access[ER1]  for scrutineers. The Trump lawyer lost the case and most of his credibility by this time. The attempts to rephrase the factual situation reminded me of the doublethink reference in George Orwell’s novel 1984: “Doublethink means the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.”

The Sticky Note hearsay evidence case provides another great example of advocacy limits. In a further attempt to prove fraud, the Trump campaign submitted an affidavit that seemed to contain questionable physical facts. I could feel the embarrassment of campaign lawyer Thor Hearne attempting to extend the law of hearsay to Michigan Court of Claims Judge Cynthia Stephens.

Judge Stephens: So I want to make sure I understand you. The affiant is not the person who had knowledge of this. Is that correct?

Hearne: The affiant had direct firsthand knowledge of the communication with the elections inspector and the document they provided them.

Stephens: Okay, which is generally known as hearsay, right?

Hearne: I would not think that’s hearsay, Your Honor. That’s firsthand personal knowledge by the affiant of what she physically observed. And we included an exhibit which is a physical copy of the note that she was provided.

After a bit of discussion, Judge Stephens reviewed the note and seemed to channel Judge Diamond’s exasperation:

Stephens: I’m still trying to understand why this isn’t hearsay.

Hearne: Well, it’s, it, I –

Stephens: I absolutely understand what the affiant says she heard someone say to her. But the truth of the matter … that you’re going for was that there was an illegal act occurring. Because other than that I don’t know what its relevancy is.

Hearne: Right. I would say, Your Honor, in terms of the hearsay point, this is a firsthand factual statement made by Ms. Connarn, and she has made that statement based on her own firsthand physical evidence and knowledge —

Stephens: “I heard somebody else say something.” Tell me why that’s not hearsay. Come on, now.

Hearne: Well, it’s a firsthand statement of her physical –

Stephens: It’s an out-of-court statement offered where the truth of the matter is asserted, right?

Just to confirm, the courts south of 49 do not occupy a separate legal reality. The U.S. case Subramanian v. Public Prosecutor (1956) found that hearsay evidence is any statement, either written or oral, which was made out of court, but is presented in court to prove the truth of that statement. Judge Stephens’ ruling upheld a situation that should have been obvious to a second year law student. Or anyone that streams movies dramatizing trials.

In a later written decision, Stephens went further and dismissed the evidence as “inadmissible as hearsay within hearsay.”

The Code of Professional Conduct of the Law Society of Manitoba suggests limits to such advocacy: “When acting as an advocate, a lawyer must not: knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence, misstating facts or law, presenting or relying upon a false or deceptive affidavit … ”

The court managed another admonishment with the “Come on, now,” which is reminiscent of Barack Obama’s admonition of Donald Trump: “Come on, man.”  These expressions are directed at people who contort the reality of the situation.

This type of contortion becomes a concern if the court record somehow becomes mudded with “alternate facts.” The novel 1984 provides another warning: “And if all others accepted the lie which the Party imposed — if all records told the same tale — then the lie passed into history and became truth.”

Manitoba’s code of conduct provides guidance on how lawyers should be balancing these two solitudes of client and society: “When acting as an advocate, a lawyer must represent the client resolutely and honourably within the limits of the law, while treating the tribunal with candour, fairness, courtesy, and respect.”

# trump #election

GoogleLaw and creative destruction of the legal profession

beating-construction-crushing-37409 (1)Google and artificial intelligence may not be the end of the legal profession, but, boy, can you see it from here.

I anticipate encountering what Joseph Schumpeter euphemistically called creative destruction. Innovation destructs archaic business models and creatively releases capital to be deployed elsewhere — a benign description of being out on the street with your law degree.

Perhaps it’s too hyperbolic, but, for example, Google has made a database of federal and state case law and legal journal articles available via its Google Scholar search. In their defence, lawyers can now purchase on Amazon the “Please Do Not Confuse Your Google Search With My Law Degree” coffee mug.

For a simpler DIY approach, YouTube displays more than 146 videos on family law. This also includes shuffle playlist for greater variety.

For comparison, AI factors into more than 38 per cent of regular enterprise planning for mainly customer interfaces. As for law firms, it’s likely not so much. Most of law firm and in-house planning centres on how to augment regular legal work with new AI tools to make this more effective and efficient.

JPMorgan Chase & Co., apparently, eliminated 360,000 hours of legal work creating legal security documents by the use of COIN, for Contract Intelligence, to review commercial loan agreements. The bank plans to use AI to analyze credit default swaps . . . since things worked out so well last time.

Other forms of AI can review entire contracts, interpret sections and even recommend sections that are not there. These recommendations can depend on which side of a particular transaction you happen to be. Similar to customizing streaming music systems, one can imagine the type of customization that can occur as you adjust the lever from buyer focused over to seller focused. We await the ultimate customization that includes sliding the scale either to the far left or far right into the “jerk” setting.

I tried a contract review application one time with a simple release. No comments came back. I imagine legal associates would be ecstatic to receive something back from a senior lawyer without any comments. I was hoping for at least one “atta boy” type of meme.

Instead of augmenting legal practice, another perspective suggests a client-based focus where the system asks questions and directs the client to certain resources. For example, The DoNotPay website helped users successfully appeal hundreds of thousands of parking tickets by having the client answer a number of questions. The system then interprets the situation and prints out a draft letter to send to the authorities.

I tested DoNotPay over the weekend and can confidently assert that the experience replicated that of retaining some legal firms. The site took in my request, said it was sorry to hear that and told me if I could email more information it would get back to me in 24 hours. Nice immediate reply, but a solution may come a bit later. Notwithstanding the delay, the value proposition — benefits divided by total costs — cannot be beat. The system is free.

So, where do the law societies stand among all of this creative destruction? Their mandate includes the protection of the public. However, the other two mandates generally include advancing the cause of justice and the rule of law, which requires the public disclosure of legal codes and processes. Societies also facilitate access to justice. This suggests making it as easy as possible for the general public unable to afford a lawyer access to some form of legal information.

This type of access does not mean providing paper or online brochures but a more customized response. In other businesses, chatbots can ask an advancing series of questions and provide a more “intelligent” and applicable answer. This forms the entire basis behind a customer-focused type of interface.

A new client-driven model suggests perhaps an Uber approach. Uber does not own cabs and tries not to employ drivers. The courts have imposed some obligations here. Generally, Uber is a simple platform that connects customers and drivers. A similar approach could connect a client and a lawyer providing the most cost-effective service. Cost is not everything, but as the law becomes more commoditized, then perhaps being “the better lawyer” may not carry the day if everyone uses the same type of AI platform to research and provide a result. And, yes, everyone shall likely have their respective settings maximized over to jerk, so there will still be plenty to argue about.

From a policy analysis perspective, one appreciates the different approaches each law society brings to the table and the complicated socio-economic analysis that would be required to balance justice access and public protection. The 2014 CBA Legal Futures Initiative outlined a number of areas that the legal profession could take to remain relevant. Implementation of the recommendations may be slow in coming.

The various law societies currently have authority over who can practise law. One can easily imagine a public lobbying effort to storm the ramparts to allow some form of AI system that can ask questions and guide the individual to a possible area where help could be found. There is nothing like a bit of urgency to assist in the legal change management process.

 

 

Canadian Lawyer November 6, 2017

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