Excalibur – perhaps the sword of truth got stuck?

lt is almost three and a half years since I wrote about Clifford Chance and the Excalibur case.  One reason this case may be taking a rather long time to emerge from the bowels of the SRA is that there has been ongoing litigation. In November 2016 CC were further criticised by Tomlinson LJ for an acute conflict of interest. There was also a professional negligence case which was settled.

sword

There have been developments since then. Today the Lawyer tells us, via Financial News Today, that the SRA are investigating and that CC might be gearing up for a fight, with Clyde & Co instructed (fresh, if that be the word, from their own record-breaking run in with the SDT).  An expensive but important business will ensue -contributed to, one would surmise, by the standard of proof.

Given the level of seriousness of the allegations (medium serious not striking off serious, I’d guess), is this kind of cock up (if that is what it was) one that is best served by an adversarial trial to beyond reasonable doubt standards a la Crown Court? For all that the case may show failings of judgment and unprofessional conduct (or judicial intemperance, one or other seems to be likely on the facts as known) and for all that the case clearly merits investigation and, on the face of it – but we do not know all the facts, prosecution, I suspect we will have a hearing because a) professional defensiveness; b) the proof standard makes it worth a punt; and, c) the powers of the SRA to deal with this, other than by going to the Tribunal, are so limited (If I remember rightly, a £2,000 fine).

I most certainly do not rule out, though, the possibility that there might be: d) substantial room for doubt on the evidence as to whether anything wrong was done – Court of Appeal judges can make mistakes, as we all know. In many ways what is of interest is not just what happened to lead to this car-crash of a case, but how CC responded afterwards. As a firm that would – I am sure- like to hold is self out as a model of professional governance, it would be much more interesting to hear how it learned the lessons, rather than seeing how it goes into battle on the facts of this case for yet one more time. Or perhaps, like Sunderland AFC on one of its most enjoyable energy-sapping mid-season runs, sooner or later they have to win one of these.

The Lawyer story is worth reading in full for a better flavour of the history and my blog of old is here. In the meantime, settle down for a couple more years and await the outcome.

Advertisements
Posted in Uncategorized | Leave a comment

Standard of Proof in Bar Discipline

The Bar Standards Board is inviting comments on its proposals to bring the standard of proof into line with all professionals other than Vets and, for now, solicitors. Lucy Reed has exceeded her own high standards with an exceptional blog post on this.

In terms of the three questions the BSB asks, I agree  that the standard of proof should be the civil standard, that the decision should not await the SRA making such a shift, and I do not perceive equality or other impact concerns that should stop them doing so. I don;t propose to go into the arguments as the BSB’s document does that admirably and with concision.

I suspect one argument that may be made against the proposals is the risk of ‘political’ prosecutions of barristers for handling controversial cases. This is a risk that faces other professionals, although it might be thought to be a greater risk for lawyers, who’s work inevitably implicates them in greater controversy. Any such risk is properly protected by the independence of the regulator and prosecutorial decisions, rather than an artificially high burden of proof.

I hope also that a more public interest oriented standard of proof will also open the door to a wider range of enforcement, redress and restoration – with perhaps more disciplining of misconduct but a wider range of responses to such enforcement. Ethics is  important but it should perhaps rarely be the life and death of someone’s career. In particular, it is to be hoped that practitioners are less likely to fight made out misconduct conduct charges and more willing to engage in meaningful contrition and learning from their errors. This is not an approach likely to develop in scheme which has a criminal, adversarially oriented approach of which the balance of proof is one significant element.

Posted in Uncategorized | 2 Comments

A call to academics: law, technology, and access to justice in UK law schools

Roger Smith has written a challenging post on the teaching of innovation and lawtech in the UK.  I urge you to read it. Law schools should do more, but I think they Roger’s post is limited in the sense that it does not demonstrate much awareness (if any) of what is actually happening in this country around teaching law students about law, innovation technology. That’s disappointing, but rather than complain or tell you all what awesome things we already do at (say) UCL, I thought it might be an idea to do something a bit more constructive and less self-aggrandising.

So I am asking you, if you are in legal education, to help me collect some information on what is already happening in the nation’s law schools (and I am defining nation as meaning the UK here but really would be delighted if others wanted to join in).  If you are willing (and you can provide your information confidentially) I will publish a summary and if you are keen, I will try and organise a way of bringing all those interested together to discuss progress and problems in this area.

So if you teach or oversee activity in legal education on innovation or technology in legal services please fill in this survey.

Posted in Uncategorized | 1 Comment

How much do law graduates earn…?

Some very interesting data out linking graduate and tax records, which deserve wide digestion and scrutiny. I have not had time to do the latter, but my quick take is here on Storify.

law 2

Posted in Uncategorized | 2 Comments

Martyn’s Day

For some time, I have known how I would start my inevitable blogpost about Leigh Day’s disciplinary hearing. Win or lose, I would want to state unequivocally my prior belief, my starting point. That starting point is best indicated by what I told a legal magazine when asked – about three years ago- which lawyer I most admired and why? I thought for a bit and then told them Martyn Day. There were, from memory, two reasons.

One was that I admired the way Martyn had built a firm that did important work that they really believed in. Perhaps I should have picked Sarah Leigh who actually started the firm: male centric bias, quite possibly, but I had met Martyn a handful of times, in professional contexts where he was always purposeful, interesting, even though he was properly wary of me (what I was working on was somewhat antagonistic to his beliefs and his interests).

The second was that I, and the researchers I had worked with, (worked ‘on’ might be a better description) Leigh Day lawyers, and we and they came away with a feeling that this was a firm that had great people and the ‘culture thing’ as good as we had seen it. Partly for that reason, I could not really bring myself to engage with the reporting of the SDT hearings. I couldn’t read it through the glasses I had on. I did not want to.

The second point is that Martyn, and Leigh Day, has enemies. I know, imagine. I remember being taken aback when seeing a leading City spokesperson literally hissing about them being ambulance chasers. The hypocrisy was shocking: the same spokesperson that would have smoothly defended the way his colleagues ingratiate themselves with (say) Big Tobacco, or pretend that the debate about Tax Havens is properly framed as a debate about privacy had lost, I thought – but I might be wrong – a sense of perspective. The commercial law world is compromised by the need to keep their clients sweet but that does not mean Leigh Day is not, was not, might not be too. Phil Shiner had reminded us what was possible. I would have to wait for the findings to see what came out, I knew.

So, as you might imagine, I am relieved that Martyn and his colleagues were acquitted. A little piece of me does not have to die. And I am not unsympathetic to idea that dark forces were out to get him. And for what it is worth, what I did read of the SDT hearings did not suggest to me they had a good case. But also, for what it is worth, what I have read of the allegations that the SRA bent to the pressure of the government was similarly weak. But I want to say that my judgment here, at least, is likely to be limited – only modestly encumbered by evidence and experience. And I see the same flaws in judgments being reached by the professions and the commentators via the vehicle of questions need to be asked.

It is certainly the case that the hearing was expensive. And that the SRA lost on all 20 counts might very well raise questions about whether the prosecution should have been brought. And that any discussion between the SRA and the Government might have been inappropriate or unwise. But it might also be the case that the SDT is a poor tribunal. Or that the standard of proof is wrong (or right – this case may very well be an interesting and acute case study of the problems posed in disciplining lawyers). It is also the case that it would be worrying indeed if the good, sometimes great, and – the law of averages tells me – sometimes poor work that firms like Leigh Day does might be chilled by such judgments. But it is also the case that allegations of the sort that were made really do need to be investigated and, where appropriate, prosecuted. Phil Shiner tells us that, if it tells us anything. Martyn’s innocence (if that is properly how we see an acquittal) does not tell us that there is a need to find blame – not yet. And neither does it tell us we should not have a proper but balanced look to see if blame is deserved.

Oh, and there is one other thing which I was readying myself to say if Martyn had been convicted. Although, I confess now I am not sure I would have been brave enough to say it without carefully reading the decision (which we must wait for until August). Instead, I remind you about two other lawyers who I greatly admire, for similar reasons, and who could just as easily have made it into my most admired column, two similarly high profile, senior lawyers of great repute have been convicted – in the past- and after they scaled the heights – of significant professional misconduct. Making mistakes is much more common than we care to admit. Some of those mistakes probably do require the full monty of adversarial process but most probably do not. And nor do mistakes usually require the analgesic reaction meted out to (say) Phil Shiner. Pretending this is about bad guys and that they are acres away from us is not always wise. So let’s react, investigate, think about the lessons to be learned. But let’s also keep those lessons in perspective and remember which glasses we have on as we peer at the few things we know now or the SDT judgment in a few months’ time.

Posted in Uncategorized | 1 Comment

Cryptic Disclosure: My first take on the Trojan Horse case

The Trojan Horse case (h/t Rich Greenhill for the link) is an uncomfortable reminder of how badly wrong lawyers can get disclosure obligations. It would be interesting to explore the reasons why that is and to wonder how much of this goes on unremarked upon (as nearly happened here). Whilst it can sometimes be difficult to ask a lawyer to step into their opponent’s shoes and decide which material may be relevant to, and disclosable to, their opponent’s case; that was not the case here.

Where we end up is – according to the decision of the Panel – a deliberate attempt to mislead their opponents and the Panel about the existence of obviously disclosable documents. Whether that failure was a knowing and reckless failure or a professional misjudgement (as the firm involved will almost inevitably seek to present it) remains to be seen. It will be crucial to the careers of at least some of the lawyers involved.

What it also indicates is an interesting attempt to use (or rely upon, depending on how deliberate one thinks this has been) institutional and professional boundaries to blur responsibility for disclosure problems. Counsel encouraged, the Panel and his opponents to think the real reason documents was not disclosed was a cock up in one part of Government, slightly but significantly removed from the client he represented.

Why he did so remains to be explained. Who thought the non-disclosure of documents could be said to be due to one part of government not knowing what the other held when that was untrue is an important and unanswered question in this case. Was it something dreamed up on the hoof in the heat of proceedings, perhaps as the result of misunderstanding one’s instructions? Was – as seems more likely – counsel instructed this was what happened – which seems to be a very deliberate and catastrophically damaging thing to have happened for whoever gave those instructions (could it be client, could it be the solicitors, could it just be the chaos of war)? With a Government Department, an Executive Agency, a firm of solicitors, and Counsel, there a number of ways of slicing, dicing and defining away the blame. Yet, the administration of justice should demand someone takes responsibility. So far, no one appears to have done so, save a fresh counsel –untainted by the allegations – called in at the end to make some admissions.

And interestingly, when one counsel on the case spots the problem, they are given a ‘torrid time’ for what turns out to be exposing what appears to be significant wrongdoing. The people giving them the torrid time are presumably the same lawyers caught up in the wrongdoing. And then those caught up disappear at the critical moment when the wrongdoing is revealed. It speaks to a wretched sense of professionalism and the covering already naked backs. If you are interested, read on to see a summary of the case…

The case involves a disciplinary panel on teachers accused in to an alleged plot to ‘Islamify’ Birmingham schools. There is a timeline on the BBC site here which rehearses some of the background. One of the teachers accused was represented by barrister Katie Langdon. Ms Langdon is the heroine of the piece. As has been widely reported in the press, the case was thrown out. The National College of Teaching and Learning were represented by Nabarros (who have taken the most flack for the allegations) and for the most material times instructed Andrew Colman as “Presenting Officer” (as I understand it, essentially the prosecutor of the case against the teachers).

The case was a complicated, document heavy one. Very late in the day, when the panel was about to announce its decision on the case, questions were raised about non-disclosure of the ‘Clarke transcripts’ (their existence had not, it seems, been disclosed in the unused material). After that, in December 2016, Nabarros indicated they had reviewed the transcripts and disclosed one (whilst taking the view it was not harmful to their case or helpful to their opponents). Seven others were disclosed after the Panel considered whether the confidentiality originally (and erroneously) promised to the witnesses that had been transcribed could be overridden by the public interest in the teachers’ teams having the statements. In discussing with the Panel why the documents had not been disclosed sooner, the Presenting Officer said this:

” I have to say, and I will not go into greater detail than this, that it seemed they also gave rise to some departmental misunderstanding about what material was and was not accessible to the NCTL, at an earlier stage of these proceedings, for which I apologise. That position has been clarified more recently, and so, the material has been available for those presenting the case on behalf of the NCTL to consider, and we have considered it”.

The suggestion was that the sponsoring department of the NCTL the DoE (it is an Executive Agency for the Department of Education) had had the transcripts not the NCTL. Their lawyers would be able to say, hand on heart, they had not had or seen the document. Sadly though, the position is not as it was suggested as the Panel goes on to report:

It was understood that the material which the presenting officer accepted should have been disclosed in accordance with the NCTL’s responsibilities was held by the Department of Education. Indeed, he said this included not only material which may harm the NCTL’s case and/or assist the cases of the teachers but also material which may have assisted the NCTL’s case although there was no application by the NCTL to introduce any further evidence.

The decision not to pursue material which may have assisted the NCTL might most kindly be described as being an offer in the manner of Alanis Morissette. They were, as it turns out, offering not to rain on the teacher’s judgment day when they had no water. The Panel goes on:

As at 12 April 2017, it had been accepted by the presenting officer, Mr Colman, that there had been failures in the disclosure process but that it was through misunderstanding rather than any deliberate acts or omissions on the part of the NCTL. Indeed, the following exchange took place at that hearing between Mr Colman (“AC”) and the legal advisor [to the Panel] (“RH”)

“AC: I have – the reason the Panel couldn’t decision -, deliver its decision in December has its genesis in the late disclosure of material by the NCTL, and I accepted that we should have had that before, and it should have been disclosed before. And I can say no more about that, except that as soon as we received it, we made every effort to review it as soon as possible, and did it in what in the context was extraordinarily short period of time, given the quantity of material, and have sought to move these proceedings forward since then as productively as we can.
RH: Do, do you mind if I just interrupt? You said you can say no more about -,
AC: I can’t – I can’t seek to justify the reasons why you did not have the material earlier. We should have.
RH: and it -, can you provide the Panel with an explanation as to how that has come about?
AC: I don’t think I can go further than the rather cryptic phrase I used earlier with departmental misunderstandings. Mr Faux, explained that on the defence’s part, they have assumed that the Clarke material was not held by the Department for Education but by the House of Commons. It turned out it was held by the Department for Education, and that they should have provided it to those presenting the case for the NCTL earlier.
RH: sorry, who should have provided it?
AC: the DFE
RH: So, departmental understandings are between -,
AC: between the -, there is a structure in place between the Department for Education and the NCTL put in place to try assure the judicial independence of Panels such as yourself, in that it is a separate executive agency. But it still under the auspices of the DFE. And that’s what I – I don’t think I can go further really. I think that need to take further instructions if there’s anything well-detailed required.”(sic).

The discomfort is clear and it is unfortunate that he was not asked to provide a more specific explanation as there are at least two clear possibilities (there may be others). He does not wish to disclose information harmful to his clients or he does not know the situation in sufficient detail to explain it.

Then Ms Langdon, representing one of the teachers, made a very interesting intervention. She:

stated that she had read the Clarke transcripts which had been disclosed and that she had seen certain of the text before. When she had looked back at the witness statements which had been served by the NCTL in these proceedings, she recognised the same text in those statements.

And the Panel makes this even more interesting observation:

It is fair to say that Ms Langdon was taken to task as she was making such a serious allegation [later on they refer to this being ‘torrid’ which suggest significant pressure was brought to bear on her], in effect saying that this failure to disclose was not down to departmental misunderstanding at all, but that the transcripts had been in the possession of the solicitors instructed by the NCTL at the time the witness statements were prepared for the purposes of these proceedings. This was clearly contrary to the statement made to the Panel by the presenting officer on 12 April 2017 as referred to above. Ms Langdon was afforded some time to review the transcripts and the witness statements to find out whether she was able to present to the Panel examples of similarities between the text in both documents. Ms Langdon was unable to do so but did not resile from her position that such similarities existed. Ultimately, Ms Langdon did not pursue those submissions and the presenting officer stated that if such submissions were not being pursued, “can we not just leave it at that?”

And as a result, the Panel accepted that the failures with regard to disclosure of the Clarke transcripts were caused by misunderstanding on the part of DfE and set about trying to come to a final decision. Then comes the biting of the rat that Ms Langdon had smelled but, under severe pressure from her opponents and under – we know not how much but probably significant – time pressure had been unable to fully flush out into the open.

By the time of the relevant hearing, the identity of the Presenting Officer had changed from Mr Colman to Mr Christopher Gillespie and he brought with him a document entitled “Note to Panel” dated 1 May 2017. The Panel, with admirable restraint, remarked drily:

It is worth pointing out that, despite the seriousness of the revelations contained within the Note, and despite the fact that the presenting officer, Mr Colman, and his colleague, Mr Geering, had appeared on each of the 34 hearing dates up to and including 23 June 2016 together with the additional hearing dates on 20 December 2016, 16 and 17 February 2017 and 10, 11 and 12 April 2017, neither were present nor did anyone from their instructing solicitors, Nabarros, attend.

The Note was prepared by NCTL solicitors in these proceedings, Nabarros, which had become part of CMS Cameron McKenna Nabarro Olswang LLP (“CMS”) on the same day as the note (a coincidence). The Panel was highly critical of the note which, it said, “raised more questions than answers and was conspicuously lacking in specificity. It professes to be a Note designed to clarify …It completely fails to provide such clarity.”
Importantly though, it did confirm

… that CMS had been in possession of 25 of the Clarke transcripts at the outset of their instructions which was prior to the NCTL notifying any teachers, to include the respondent teachers, that there was to be an investigation in respect of their conduct. This is in direct conflict with the understanding both the Panel and the teachers’ representatives had been allowed to believe for many months, namely that the transcripts were in possession of the Department for Education or, for example, the House of Commons and “departmental misunderstandings” had led to the failures on the part of the NCTL to meet its disclosure obligations.

And:

The Note makes clear that the Clarke transcripts were utilised when the witness statements were being prepared for the purpose of these proceedings. Their importance, therefore, cannot be overstated. The transcripts are clearly relevant and CMS must have looked upon them as relevant as they were being used in the course of the preparation of the witness statements.

The note then engages in what looks like a mealy mouthed attempt to justify the obfuscation which perhaps give some insight into the thinking of the lawyers involved, but also deepens the sense that the documents were knowingly lied about (I should emphasise we would need to hear the individual lawyers’ side of the story to be sure whether this is really so but it does not look good). It is an observation particularly important in light of the attempt to blame non-disclosure on the documents not being held by the NCTL. The claim was that to protect witness confidentiality promises (promises that could not be properly made in a watertight way) the witness statements were written in a way which, “contained all relevant evidence in the proceedings so as to make it available to the teachers and the Panel.” This in no way provides any kind of defence, that I can see, to a failure to disclose the antecedent material. The Panel are perhaps even less impressed saying the explanation is inconsistent with a number of other things that CMS (the Nabarros bit, as I am sure CMS are now thinking of it) did on the case. The Note also says the Clarke transcripts were provided to Counsel in November 2016. And that CMS had been in possession of the transcripts since late 2014. The Panel assumes , “CMS had not informed the presenting officer at any stage that they had been in possession of the transcripts since late 2014”.

After the note (on the 4th May) came a witness statement from the partner at CMS with conduct of the matter confirming they had the transcripts approximately 3½ months before the relevant witness statements were signed and finalised. And then this happened:

Despite the fact that the Panel had directed witnesses to attend to give evidence, the partner was not in attendance. The reason given for her non-attendance was that she had to attend a partners’ meeting.

The sarcastic remarks I have written here and deleted you will have to guess at. At the hearing the Presenting Officer (Mr Gillespie) accepted:

in the course of the various hearings including, and since, the hearing on 20 December 2016, the Panel and the teachers’ representatives had listened to submissions on the issue of disclosure which were not correct and that the Panel had been misled
…It was accepted …that one interpretation of CMS’s approach was that it sought to circumvent a disclosure requirement by making sure that everything they considered relevant was included in the witness statement
…Mr Gillespie stated that the decision to withhold disclosure of the transcripts was not,”….an unconscious decision. It was misguided perhaps, but the intention was to make sure that what had been said to the Clarke Enquiry, insofar as it was relevant to what was then going to be before the Panel, was contained within the witness statement now, I’m not attempting to justify that.” He went on to say, “it was not done in a way, I hope, to frustrate the proceedings. It was trying to balance a number of different issues and maybe getting the balance wrong.”

The panel unsurprisingly takes the view that the Clarke transcripts, “were deliberately withheld from disclosure”; “that CMS clearly understood the status of this category of document,” and that it is, “fair and appropriate to discontinue these proceedings for abuse of process on the grounds that it offends the Panel’s sense of justice and propriety to be asked to continue to hear the case against the teachers given the particular circumstances of the case.” And of the failure of the CMS partner to turn up for the hearing they note this:

At the very least, the Panel finds that to be disrespectful but, more fundamentally, it meant that the Panel and the teachers’ representatives were deprived of the opportunity of making further enquiries, and seeking further clarification, of what exactly had gone on when decisions were being taken in late 2014 and 2015 regarding the whole topic of disclosure.

On Mr Colman, their comments are fuller of doubt, but nonetheless I think suggest his conduct should be investigated. He is deliberately cryptic in April, when he knows of the failure to disclose and is offering a partial explanation which he cannot or will not develop upon, and we have no explanation as to how the ‘DfE had the documents’ explanation he offered to the Panel came about. The Panel is itself though is measured:

The Panel is prepared, on balance, to find that, up to 12 April 2017, Mr Colman was working on the same assumption although it is surprising to say the least that, when he was provided with certain of the Clarke transcripts in November 2016, Mr Colman neither asked, nor was told, when CMS had come into possession of them

One of the things that is interesting here is that it was at the April 27th hearing that Mr Colman made his cryptic remarks and at which Ms Langdon was given such a torrid time. By whom is not clear. Was it Mr Colman? It seems a logical thing to assume. Having not been able to give full details on how the documents had not been disclosed what did he say and do when Langdon not only smelt a rat but smelt the right rat? We do not know, but the Panel does not think they were deliberately misled:

The Panel does not consider that Mr Colman would have set out to mislead the Panel and the parties deliberately in such a serious manner…In support of this finding, the Panel notes that it was at the conclusion of the hearing on 12 April 2017 that enquiries must have been made by or on behalf of Mr Colman which revealed that the Clarke transcripts had been in the possession of CMS since October 2014 and this led to the Note to the Panel of 1 May 2017 (which we were told was dated incorrectly and should have been dated 2 May 2017). Had Mr Colman looked to mislead the Panel deliberately, no such enquiries would have been made and the Panel and the teachers’ representatives would have been none the wiser

So it seems too that after that during or after the hearing Mr Colman may also have been smelling the rat that Ms Langdon had been taken to task for asking about.

Posted in Uncategorized | 2 Comments

Never mind the result, what’s your reasoning? How far computers can tell you what a case says.

One of the interesting counters to discussions about AI predicting legal outcomes (aside from it not always working that well yet), and whether legal robots are really robots* is that a practice at the heart of lawyering is the understanding and giving of reasons. Computers can’t do that, so the story currently goes, and so lawyers are safe. But an interesting study has just been published in Artificial Intelligence and Law called Recognizing cited facts and principles in legal judgements by
Olga Shulayeva, Advaith Siddharthan and Adam Wyner which gives us some inkling into how near or far we might be from machine driven analysis of law’s reasoning.

The aim of the piece was to test whether it is possible to generate accurate summaries of the facts and reasons for decisions in case law. Think of it as a significant step towards automatic headnote generation. Given the overwhelming volume of case data, this is not a trivial advance and it is a technique which suggests the possibility of shaping reasons from unpredictably structured narratives.

 

What they find is this: they test the human annotation of cases (an expert trains a lay person to identify text in the cases which contain cited facts and relevant principles) and they compare the accuracy of so doing it with an algorithmic approach. They find, “human annotators can achieve reasonable agreement on which sentences in legal judgements contain cited facts and principles (respectively, K = 0:65 and K= 0:95 for inter- and intra-annotator agreement)”. This human comparison forms their ‘gold standard’, the best achievable human classification of relevant facts and law on the cases.

 

“We further demonstrate that it is feasible to automatically annotate sentences containing such legal facts and principles in a supervised machine learning framework based on linguistic features, reporting per category precision [facts or principles identified as relevant were correct] and recall figures [not missing relevant facts or principles] of between 0.79 and 0.89 for classifying sentences in legal judgements as cited facts, principles or neither using a Bayesian classifier, with an overall j of 0.72 with the human-annotated gold standard.” It looks pretty accurate, in other words; not perfect but good. Like humans.

 

The test was performed on 50 common law reports taken from BAILII on civil matters, mainly contract, trust and property law cases.

 

As a result, they conclude, “it is feasible to automatically annotate sentences containing such legal facts and principles to a high standard. The reported studies lay the basis for further applications, including creation of meta-data for search and retrieval purposes, compilation of automated case treatment tables containing summaries about legal principles and material facts of cases, and automated analysis of reasoning patterns and consistency applied in legal argumentation.”

In this way if we see, “determining the authority of a case required a strong grasp of precedent and legal analysis” and finding precedential information as, “‘buried in the sea of irrelevant information” where , “…appellate court decisions are rife with disagreements between the judges on what the law is.” Then, inspite of these concerns, machines can be programmed to learn the task well, even before we consider the efficiency gains of the machines having the potential to do this on large volumes of case law. How do they do it?

 

They seek to tie, “specific statements of legal principles and evidence to citations within decisions” through what they call, “argumentation zoning” to isolate, “the argumentation used by the author of that paper or judgement.” These arguments can often, they think, be identified linguistically; “a legal principle can, for instance, be indicated by deontic modality, e.g. expressions of must for obligation, must not for..” Principles are, we might be unsurprised to learn, typically stated in the present tense, and facts in the past tense. Certain verbs and verb tenses were potential signifiers; as were, “word pairs that are grammatically linked”; length of the sentence; the position of certain words in the text; and there was a citation in the sentence. Collectively, these factors contributed to accurately being able to identify the facts and principles which (it appears) made up the core of the judgment.

 

One final comment from the author on its utility:

 

“This functionality could, for example, allow a legal practitioner to not only search, say in Google, for citations mentioned in a case, but also the associated legal principles and facts, providing deep access to and insight into the development of the law. It would also offer the opportunity to access the law directly rather than via the edited and structured materials made available by legal service providers.

 

I should add some notes of caution. The author’s acknowledge there are limitations and weaknesses to the approach. For example the system may systematically miss legal principles which are ”active” in reasoning, but need to be, “inferred from the text.” It seemed to me that the amount of text that makes its way into the relevant facts and principles is a reasonably sizeable proportion of the case (from the article it looks like the relevant facts and laws might make up about a third of the case judgment – as was the case for the human annotators). The system does not order or explain the judgment it simply extracts (most of) the relevant information. It’s a step towards being able to extract the reasoning from cases.

——————————————

* Yep, I know the natural response is who cares? But if you like a bit of hype bashing read this and make up your own mind – to my mind it does not matter if something can be called a robot for the titlation of our legal press, it matters whether the product better meets a need. The blog post linked to contains interesting thoughts on that too.

Posted in Uncategorized | Leave a comment