Impactful Legal Technology

One of the simplest (conceptually) but potentially most impactful areas of legal technology is just easier access to data and services that are already available. From Business Insider, a story on DoNotPay:

First Joshua Browder went after parking tickets, building a bot that helped hundreds of thousands of users challenge their fines.

Then, the 21-year-old student broadened his focus, expanding into everything from landlord disputes to chasing compensation for lost luggage on flights.

In 2018, Browder  took aim at Equifax after a data breach exposed the personal data the firm held on tens of millions of Americans, and his app DoNotPay was used to help file 25,000 lawsuits against the company.

See also Bad Landlord? These Coders Are Here to Help.

Can software tools help non-experts effectively navigate domains that experts have created and maintained? First step: access the underlying data.

Legal Tech by Students

I know very little about CodeX – The Stanford Center for Legal Informatics, but I vow to you dear reader that I will start looking into this.

I fear the technology they are building is probably not quite on point.  I have this theory that legal technology sucks (legal definition) because it is built by people who don’t practice law – or at least practice law in the practical way outside and in-house lawyers do.

And, by the time those outside and in-house lawyers have the practical experience to make a decent legal product, they are making too much money to just give it up for a startup.

It’s a weird feature of law.

These sentences have no meaning

From Law360 (paywall):

“The data-driven lawyer is the lawyer of the future,” said Josh Becker, Lexis head of legal analytics and chairman of Lex Machina. “This is still very early days and these pioneers are critical. They’re evangelists within their firms and they bring data with them each step of the way.”

To save you the subscription, Law360 (which is owned by the same parent as Lex Machina), says lawyers using data is the future.

Just so you’re aware.  Lawyers have always used data, and those that used it better usually got ahead.  In 2007 you might build a script to download info from the USPTO, and in 2018 you now might pay a subscription fee for someone to do that for you.  This has been going on forever, you’ve only added marketing.

And, from what I’ve seen from Lex Machina (which is now dated by a few years) I’m unimpressed.  At that time, it could tell you an insight such as: only 10% of motions to dismiss have been granted in a certain jurisdiction.  So what?  That’s still a 10% chance.  It’s a shot on goal.

The future for lawyers is competency and intelligence. Let’s make that happen.

Timing and a prediction

My belief is that Trump now sees his trade war with China as costing him votes because of it’s purported negative effect on the stock market.  Trump now needs to rev up the stock market for his 2020 race.  Self preservation at its finest.  If he wins, assume the trade war will commence post reelection.

I do not think a new trade deal with China (if one is cobbled together) will be better than what we had.  But it will stabilize the economy and boost the stock market.

That said, I do think any new deal will have language protecting US intellectual property.  But this is a hollow pledge because most of the intellectual property worth protecting was stolen long ago.

The truth is more complicated

The push against arbitration clauses has been gathering steam over the past few years.  It has now found momentum with law firms. (Paywall, but you can see enough to get the point.)

I understand the push back against arbitration clauses because many arbitral bodies are thought to be unfair (not great data on this – and there are some very good ones) and many people think it allows companies to hide their dirty laundry (which does happen).

I only wish the law students took a more nuanced position.  Mandatory arbitration clauses can be a godsend to those who are afraid of facing public scrutiny about what happened – it is not always fun to face both the perpetrator and the public when bringing a case.  The public (or a vocal part thereof) does not always treat the victim with much kindness or understanding.

Also, taking this out of the sexual assault/harassment realm.  Bringing a public lawsuit may have consequences on who will hire you in the future.  Even if the claim is completely legitimate.  That’s the world we live in.

A more nuanced approach would leave it open to the victim/aggrieved party to decide whether they want to file a public lawsuit or private arbitration.

Perhaps the law firm agreements do this.  But this is not what the law students are pushing for.

Life Advice

Ran across this Twitter thread from Patrick McKenzie and thought it was great. Here are some lines for emphasis:

Companies find it incredibly hard to reliably staff positions with hard-working generalists who operate autonomously and have high risk tolerances. This is not the modal employee, including at places which are justifiably proud of the skill/diligence/etc of their employees.

and

Technologists tend to severely underestimate the difficulty and expense of creating software, especially at companies which do not have fully staffed industry leading engineering teams (“because software is so easy there, amirite guys?”)

and

There is no hidden reserve of smart people who know what they’re doing, anywhere. Not in government, not in science, not in tech, not at AppAmaGooBookSoft, nowhere. The world exists in the same glorious imperfection that it presents with.

Your Lawyer’s Email Advice is Wrong

What do your lawyers tell you about email? Don’t write bad emails, right?

Here’s a bad email:

“OMG we totally infringe this patent.”

And the response:

“Hey guys, the lawyers told us not to discuss patents on email. Let’s take this discussion offline.”

So now it looks like discussion, offline, about how much they infringe the patent. And that’s probably not what happens.

It’s fine to email. The mistake is speculating and exaggerating in email.

The truth is the author has no idea if they infringe the patent. They are expressing a fear. Infringement is a legal analysis and almost always requires a full technical investigation.

Email is fine. But don’t fucking speculate. Don’t panic. State the facts and loop in your lawyer.

Guaranteed Patent Validity vs No Permanent Injunctions

Fascinating and bold proposal by Professor Paul Janicke of the University of Houston Law Center to fix the U.S. patent system:

(1) Continue to allow prosecution of as many claims as desired, but after allowance require the applicant to choose no more than three for issuance. During the first three years from grant, attacks on these claims can be made in the PTO or the courts, to the same extent as now. After three years from the issue date, validity of the claims becomes incontestable.

(2)  In exchange for (1), the remedy of permanent injunction disappears, except in ANDA cases. It will be replaced by a revised financial remedy: equitable sharing in the infringer’s revenues from the infringing activity, as set by the judge.

He anticipates the objections but argues radical change is needed. And it is certainly appealing to think about a fundamental rebalancing. The patent system is broken.

AI and Tattoo Identification

Somewhat of an old story raised anew this past month.  The use of AI to identify tattoos and what they mean.  This raises all sorts of serious concerns as pointed out in the article (but take with a grain of salt given the advocacy group behind it).

I just like the idea of this needing to be explained in court as a way to establish reasonable suspicion or probable cause.  There are ways to get around that need by just using police officer testimony, but someone is going to go after the algorithm.