Should lawyers learn to code?

A little while ago lawyers at Sydney firm Gilbert + Tobin took part in a one-day workshop designed to teach lawyers how to deploy, interact with and design the business logic in smart contracts. The story was carried in the Global Legal Post and Simon Gilchrist, the firm’s innovation officer said:

“These workshops put Gilbert + Tobin at the forefront in terms of capabilities, imagination, and technical understanding of our legal team.”

This is not a particularly new concept, but it still relatively rare. There many different reasons why learning about coding, data and databases is a good thing to do. “Its fun” may not be top of the list. A great way of putting it is from the blog by David Zvenyach:

“…Asking whether lawyers should learn to code is like asking whether lawyers should read fiction… Reading fiction can help a lawyer improve her legal writing. It can help foster greater empathy and understanding of others’ motivations.”

Many years ago, Colin Sutherland QC (who is now the most senior judge in Scotland, the Lord President) gave a talk to solicitor advocates on the importance of written pleadings and in particular the ability to present complex questions clearly and concisely. His advice was simple – read. The more you read, and the wider the range of books that you read, the greater your understanding of the complexity of language. And fundamentally the objective of a contracts lawyer is to capture the parties’ intentions; the objective of a contentious lawyer is to use language to persuade an opponent of the merits of an argument. As an aside, reading older texts can lead to the discovery of strange and wonderful words. My latest discovery is “slobgollion”: “an ineffably oozy, stringy affair, most frequently found in the tubs of sperm, after a prolonged squeezing, and subsequent decanting. I hold it to be the wondrously thin, ruptured membranes of the case, coalescing.” You need to read the rest of Moby Dick to understand the context!

Back to coding. Until you have had the chance to play around with code, it is difficult to visualise the opportunities. Even the simplest of code opens your eyes to the art of the possible. I remember experimenting with the most basic command, and having “Hello World” appear on a web site page. Over the years, exploring HTML, CSS, .asp and SQL took me to the creation of some reasonable complex web sites. Once you understand how data can be structured and then manipulated, the possibilities become clear. The next thing you realise is that a different set of skills come into play – and that for the bigger projects you need the help of mathematicians and coders.

But without that basic background, as Simon Gilchrist puts it, you lack the technical understanding that fuels the imagination.

Jobs of the future – the World Economic Forum view

“Today, we are at the beginning of a Fourth Industrial Revolution. Developments in genetics, artificial intelligence, robotics, nanotechnology, 3D printing and biotechnology,

to name just a few, are all building on and amplifying one another. This will lay the foundation for a revolution more comprehensive and all-encompassing than anything we have ever seen. Smart systems—homes, factories, farms, grids or cities—will help tackle problems ranging from supply chain management to climate change. The rise of the sharing economy will allow people to monetize everything from their empty house to their car.”

That is the introduction the reader is given to the World Economic Forum’s Future of Jobs study, that looks at how the drivers of change are going to influence the jobs that are available. In general terms:

“Our respondents expect strong employment growth across the Architecture and Engineering and Computer and Mathematical job families, a moderate decline in Manufacturing and Production roles and a significant decline in Office and Administrative roles. Other sizeable job families, such as Business and Financial Operations, Sales and Related and Construction and Extraction have a largely flat global employment outlook over the 2015–2020 period.” (Page 11)

“Strong employment growth in the Computer and Mathematical job family is driven by trends beyond technology, such as rapid urbanization in developing countries, as well as by disruptions that negatively affect the employment outlook in other job families, such as geopolitical volatility and privacy issues—as companies from virtually all industries seek to recruit specialists that can help them apply tools such as Big Data analytics and data visualization to better understand and cope with these issues.” (Page 13)

“Interestingly, our respondents expect a comparatively small employment impact from two disruptions that currently receive significant attention. Where it is mentioned, the artificial intelligence and machine learning driver is expected to lead to negative employment outcomes in job families such as Education and Training, Legal and Business and Financial Operations. However, it appears our respondents do not believe that these technologies will have advanced significantly enough by the year 2020 to have a more widespread impact on global employment levels.” (Page 13)

These snippets only give a flavour of the detailed analysis that is contained in the 150 of so pages of the full report. We have heard often enough that the lawyer is doomed, but it would appear that the demise of the lawyer is not as imminent as some have predicted. To be fair to those that have predicted the demise of the lawyer it is not likely to be a swift and brutal change. Rather the change is likely to be one gradually taking place over many years.

Commenting on the report, Simon Torkington, wrote about two skills that job seekers will need to secure jobs in the future. Mathematical ability is one – perhaps obviously given what has been said before. In the age of the internet of things and big data, those who can understand and manipulate that data are going to be in demand. However, he highlighted work done by David Deming, associate professor of education and economics at Harvard University, who says that soft skills like sharing and negotiating will also be crucial.

The “map” of jobs took me slightly by surprise.

For up there, with a green dot, is lawyers and judges, with a middle of the road score for maths skills. I may argue that lawyers of the future will need greater maths skills, but it is comforting to see us still on the map!

Forecasting success in litigation – now we’re getting serious!

Others are picking up on the issue of the misuse of forecasting or probability language by lawyers. This has long been an area of interest of mine, but I see that it is being discussed by others who have an interest in this area.

In a series of articles, Robert Rothkopf discusses the use of probability in the commercial litigation context:

“In the context of complex commercial litigation, clients should be pleased to see a well-thought-through percentage chance of success that only very tentatively steps outside of the 35 – 65% range when there are cogent reasons to do so. Furthermore, users of legal advice that includes a percentage chance of success need to understand that it is just an estimate based on information available at the time of the forecast. A 70% chance of success means that there is a 30% chance of failure. If the client’s case was run 100 times, he would win 70 times and lose 30 times. A case with a forecasted 70% chance of success that loses does not necessarily mean that the forecast was wrong.”

Part 1 of the series concentrates on the issue of language, rather than the maths that sits underneath any prediction.

Part 2 considers “hedgehogs” and “foxes”, and has a helpful summary of the highlights from Daniel Kahneman’s “Thinking, Fast and Slow”. The stereotypical lawyer is also considered:

“In the UK at least, there is the perception that many studied humanities and gladly gave up maths, seeing themselves as better with words than figures. This is reflected in some of the costs budgets we see. Less charitable observers of the legal profession might well point to some stubborn egos, and there will be examples of lawyers who are famously unreceptive to other people’s views or new ways of doing things.

What emerges from Tetlock’s data is that if such a stereotypical lawyer exists, then he/she is probably not a great forecaster. Maybe maths and statistics should be part of all law degrees, and lawyers should seek maths training as well as updates on contract and tort law? Lawyers could also aim to develop some of the other traits listed above.”

The conclusion in Part 3 is that:

“Like us, lawyers should keep score, tracking whether their forecasts on a given case proved to be right or wrong. Law firms might even find that it becomes a useful marketing tool if they can boast about the accuracy of their litigation forecasts on budget, duration and outcome.”

What I found interesting was that the focus on the human behaviour that drives forecasting and predictions, rather than drilling into the challenges that might face those trying to build an equation to give clients a true prediction of outcome. Undoubtedly both are required, but I think it will be a few years yet before they come together.

Calculating prospects of success in litigation

I had to smile when I saw an exchange of posts on the Oil, Gas and Energy Mining Infrastructure Dispute Management mailing list.  The discussion started around the balance of success – whether it was the investor or the state, who was winning investor/state arbitration. What caught my eye was the discussion around probability.

“Which brings out an interesting element of human nature. You tell someone they have a 42% chance of winning they will think “I’m probably going to lose”. You tell them they have a 70% chance of winning the first stage and then a 60% chance of winning the second stage they will think “Wow, those are good odds”. Indeed, even though I know they are exactly the same odds, the second description still sounds better to me.”

The writer of that comment, Tony Cole, Senior Lecturer, Brunel Law School referred to a paper where it was said:

“However, most legal practitioners (jurors, judges, and lawyers) are not trained to maneuver even the most basic statistical formula. The consequent misuse of statistical evidence has resulted in frequent miscarriages of justice, both in the UK and worldwide. The mistakes made are common and systematic, and have been encapsulated in a handful of widely documented fallacies and other misunderstandings. However, even when law practitioners are aware of these fallacies, they still struggle to apply the correct statistical methods and the gross mishandling of statistics continues to rampage throughout legal practice. Furthermore, there is even widespread contention and confusion about what statistics and probabilities even mean, and what they are able to represent. This has led some people to wonder whether statistics should be allowed in the courtroom at all.”

The reason this discussion made me smile was that I have long been interested in how to answer the question – what are my prospects of success, in percentage terms? It is a question often asked. I remember replying to a client that he had a 70% chance of success – and that the figure I had just given him was completely meaningless.

What I meant by that was that at the stage we were at, the number was more of a guess: a rough indication of the strength of the case. I was reasonably comfortable on the applicable law: but would I be able to prove the underlying facts. Would the witnesses perform well? Was there any documentary evidence that supported what the client said? How would the other side perform in court? What documentary evidence did they have?

When one looks at probability theory, and perhaps even Bayesian theorem, it is relatively easy to see that a lawyer’s meaning, when giving prospects of success is very different from a mathematician’s meaning. As far as I can see, it’s not so much the chances of winning that are important, it is the lawyer’s confidence in the prediction that the client should worry about. The question that follows is “what can we do to improve our confidence in the prediction”.

As mathematicians become more interested in the practice of law, so we see more and more providers who say that they can predict outcomes. Dart IP is one example. Their challenge is:

“What if you could have access to all the major IP cases from around the world? Would you like to see what other judges have decided on similar cases and be kept informed about trends?”

Of course we would! But if we can use data to predict outcomes, at what point are we going to use that same dataset to decide outcomes?

It was my understanding that there would be no math!

I have ever so slightly changed the quotation, but this is taken from a Saturday Night Live clip where Chevy Chase plays President Ford. How many times have we heard lawyers joke that they are no good with numbers. How many lawyers laugh off their inability to grasp and comprehend new technologies. This cliche is the starting point of an excellent – although sales driven – article about law and technology.

Marc Jenkins writes 

“Litigators increasingly rely on evidence based on statistics contained in expert studies. Some base level of numeracy is required to properly value damages, value corporate assets, understand DNA evidence, handle employment litigation or mass torts There is actually quite a natural link between logic, argument, law and math. In the age of Google, Westlaw, Lexis and eDiscovery, many attorneys have participated in the intersection of language, law and math through the running of Boolean searches. I believe lawyers can go much further in using technology to empower the services we provide.”

This struck a chord with me, as I have a case at the moment where the main point in issue is the use of a mathematical formula to calculate risk. A few years ago that risk might have been assessed by “experts” who would apply their knowledge and experience. However today, with the recognition that risk can (sometimes) be calculated, a mathematical model has been developed. But without a clear understanding of that mathematical model, and the robustness of the model, how am I to argue that it was or was not appropriate to use it? So it is time for a tutorial on maths.

Which is ironic perhaps, where in a household with two qualified lawyers as parents, the chat around the dinner table is about maths. My eldest daughter is off to study maths at university, so I can be lost in a conversation concerning equations and vectors! They joke about the poster in the maths classroom that says: “Small minds discuss persons. Average minds discuss events. Great minds discuss ideas. Really great minds discuss mathematics.” But there is hope yet, as I firmly believe that mathematicians will be an integral part of the legal process soon, if they are not already.

Marc moves on from the cliche and highlights the challenge of access to justice. However he mentions four products:

“Working in concert with the right technologies, educated attorney and purpose-built machine can accomplish things that were not possible a few years ago. Using cicayda, lawyers can discover insights and key documents in large data sets at a rapid pace, analyze the risks and costs of litigation at an early stage, and unlock the information contained in social media, wearable technology and internet of things data effectively. Using Ravel Law, lawyers can shorten the time to research a complex legal issue. Using Lex Machina, lawyers can grasp likely outcomes in matters based on jurisdiction and presiding judge. Using CaseRails, lawyers can shorten the time it takes to create work product and distribute more knowledge to more clients.”

Review of these products will show all lawyers that maths, and an understanding of how risk can be calculated is going to be an essential skill for future lawyers.