Virtual Reality in the Courtroom

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Virtual reality has arrived, and its awesome. It has the potential to revolutionize the way we learn, the way we conduct business, the way we interpret medical imaging, the way we litigate, and so on.

If admitted into evidence, virtual reality would change the way we present medical imaging and present expert testimony in the courtroom. With virtual reality, jurors/judges can view in 3D reconstructed crime scenes, or even experience the event in 3D from the perspective of one of the parties or witnesses.

However, the technology’s power has the effect of skewing perceptions. Merely showing the experience from one side would be highly problematic. It would give a dishonest impression.

I have inserted two links below, if you are interested to learn more:

http://www.businessinsider.com/virtual-reality-in-the-courtroom-2016-11

https://www.youtube.com/watch?v=pEJGAgR4yFE

https://uploadvr.com/courtroom-vr/

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2933867

 

(Views are my own and do not represent the views of any organization. Originally posted on slaw.ca)

Saaditi v Moorhead: Case Comment

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In Medieval Europe, deciding guilt or innocence was sometimes decided by trial by ordeal. It was believed that the holy water would reject a liar. So they would tie up an accused person and throw him in the water. If you floated, you were guilty. If you drowned, you were innocent.

Has the law evolved much further from this barbaric custom? Many think we have.

In Unfair: The New Science of Criminal Injustice, law professor Adam Benforado begs to differ. He points out that the law of evidence hasn’t caught up with neuroscience. That the way we decide cases isn’t always justifiable. And he gives examples of how we are blind to problematic reasoning.

As we uncover the secret world of detectives, judges, prisoners, and others, we will confront challenging questions. What if our legal rules and practices not only are blind to the real influences on human behaviour but serve to actively perpetuate myths that neuroscientists and psychologists have revealed to be false? What if the structures and frameworks of criminal law that we have adopted to eliminate bias actually make matters worse? And if most people are unfamiliar with the complexities of our hidden minds, might there be power players out there taking advantage of this knowledge to stack the cards in their favour at the expense of the weakest?… Do we care that the path through our system is greased for some and tarred for others, owing to the cognitive biases of police officers, jurors, and judges? Does it matter that certain people are disadvantaged front the outset simply because of their structure of their brain or the shape of their face? … Is justice really blind? [Or is lady justice taking in a lot of information and once she has a picture of you, there’s not much you can do to change it?]… We are masters at jumping to conclusions based on an extremely limited amounts of evidence.

Is it time we rethink the way we establish facts in courtrooms? What role should science have in evidence law?

Interestingly, most rules of evidence are based on judicial decisions. Judges making rulings on a set of facts. They are not rooted in science. They are not thought out by bureaucrats. They are not meticulously updated to keep up with scientific developments. In fact, there is a tension between judges and science.

I remember first entering law school, being surprised that judges did not rely on secondary material, like research papers in coming to conclusions. Rather they were restricted to case law and witnesses. But is that justifiable? How should the scientific method influence judicial decision making? Are the senses really enough to judge a case? How should science and law influence one another?

In Saadati v Moorhead, 2017 SCC 28 the Supreme Court of Canada narrowly considered this question. At issue in the appeal was the necessity of medical expert evidence. The trial judge found that a series of motor vehicle accidents caused the plaintiff psychological injuries. However, no expert evidence was put forth to establish the mental injury.

Ultimately, the Supreme Court welcomed expert evidence. But said it wasn’t necessary to prove mental injury. It also wasn’t necessary to confine a mental injury to a psychiatric disorder.

Justice Brown  stated at paragraph 2:

[2]                              This Court has, however, never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so now… recovery for mental injury does not require proof of a recognizable psychiatric illness. [Requiring proof of psychiatric illness is] premised upon dubious perceptions of psychiatry and of mental illness in general, which Canadian tort law should repudiate…

At paragraph 31, Justice Brown states that confining compensable mental injury to a medical condition is “suspect as a matter of methodology”. And that the categories identified as psychiatric disorders are constantly changing and evolving.

Although I agree that lawyers and judges shouldn’t abdicate their critical thinking to hired guns and that it shouldn’t be necessary to adduce expert evidence to show an injury, I strongly believe that we need to rethink the rules of evidence. The rules of evidence and how we apply these rules need to be grounded in science.

(Views are my own and do not represent the views of any organization.)

What makes a business disruptive?

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In the television show Billions, hedge fund manager Bobby Axelrod tells his wife Lara why her business won’t succeed:

Lara: It was a bullshit meeting. Treated me like my business wasn’t ready.

Axelrod: You weren’t ready … What is that you do that you are the best in the world at?

You offer a service – you didn’t invent.

A formula – you didn’t invent.

A delivery method – you didn’t invent.

Nothing about what you do is patentable or a unique user experience.

You haven’t identified an isolated market segment.

You haven’t truly branded your concept …

So why would an investment bank put serious money into it? …

You weren’t ready. 

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So what makes a business attractive to investors? A disruptive business.

In The Innovator’s Solution, Harvard Business School Professor Clayton Christensen explains what makes a business disruptive. He states that a business is disruptive when it gives people access to something that was traditionally out of reach.

Christensen identifies three criteria to a disruptive business:

  1. There is a large population of people who historically have not had the money, equipment, or skill to do this thing for themselves or have gone without it altogether or have needed to pay someone with more expertise to do it for them. AND, to use the product or service, customers have needed to go to an inconvenient, centralized location.
  2. There are customers at the low end of the market who would be happy to purchase a product with less (but good enough) performance if they could get it at a lower price. AND we can create a business model that enables us to earn attractive profits at the discount prices required to win the business of these over served customers.
  3. The innovation is disruptive to all of the significant incumbent firms in the industry.

When it comes to the legal world, an example of a disruptive business that meets all criteria is LegalZoom. LegalZoom allows a new population to access a “good enough” service that was traditionally out of reach. And allows them to access it from anywhere in the world.

So how should traditional law firms react? According to Christensen, law firms should focus on building their core competencies of the future. The core competencies of the future will be specialized legal advice that computers cannot easily replicate.

Christensen warns against “outsourcing your future”. Rather businesses should focus on building tomorrow’s services. “It’s like planting saplings when you decide you need more shade. It’s just not possible for trees to grow large enough to create shade overnight. It takes years of patient nurturing to have any chance of the trees growing tall enough.”

 

(Views are my own and do not represent the views of any organization.)

Legal Pedagogy: Broadening the Conversation

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Richard and Daniel Susskind argue in the Future of the Professions that technology will displace traditional ways of working. To respond to this, our law schools need to go beyond teaching black letter law. We need to embrace inter-disciplinary education. It is not enough to just select students from different faculties. We must also select teachers from different faculties.

Yes, law schools need to teach the fundamentals. Property, contracts, tort, criminal, family, constitutional law, etc. But it’s not enough to just know the basics. Future work demands creativity and breadth of knowledge.

One way to address this problem is to allow students to take extra coursework from a different faculty. It could be done on a pass/fail basis. Another way to address this may be to invite professors from other faculties to teach on related issues.

For example, it always struck me as odd the way law schools teach constitutional law. In constitutional law class, we would go from one case to the other in a matter of minutes,  learning the ratio decidendi from each case. We would gloss over the history, the politics, the philosophy underpinning each case.

The repatriation of the constitution is not a five minute lecture. But what would take classes to go through in a political science class, we sped through in a matter of minutes. Rushing to cram in the rules from each case. And for what? A grade? The bar exam?

I would have loved the opportunity to learn case law along side learning philosophy, history, politics, behavioural economics, women studies, literature, and neuroscience. Law does not happen in a vacuum. Understanding the influences on the development of our laws is important. And asking why our laws look the way they do is equally important.

We need to encourage future lawyers to ask the hard questions. What does equality really mean? What makes something fair? What does rule of law really mean? How do judges and juries really decide cases? Simply teaching for the bar exam is not enough.

What’s the point if students leave school without thinking critically? What good is it for students to focus on regurgitation? The Internet has externalized knowledge. It is what we do with that knowledge that makes lawyers special. By incorporating other disciplines, we can train better lawyers. We can give students the skills to use knowledge differently.

Law schools overvalue teaching black letter law. And I see this as a product of a precedent based system and a culture that overvalues our central executive mode. To quote neuroscience Daniel Levitin “Many creative artists and scientists report that they don’t know where their best ideas came from… In this see-saw of attention, Western culture overvalues the central executive mode, and undervalues the daydreaming mode. The central executive approach to problem solving is often diagnostic, analytic, and impatient, whereas the daydreaming approach is playful, intuitive, and relaxed.”

I hope that with the changes in our profession, we see a change in our schools. That we see our law schools embrace other disciplines and other ways of thinking.

Court Forms: Confusing by Design

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You name it, there is probably a court form for it. A form for service. A form for requisitioning something. A form for confirming something. A form for costs. A form for a back page. And so on. Navigating these forms requires experience and ideally a law degree. But the increasing numbers of self-represented litigants means that our forms need to be examined. They need to be user friendly.

I have watched countless self-represented litigants struggle with understanding court forms and court processes. All the while, watching government clerks guide them through these forms. And who can blame the self-represented litigants? Does it make sense that you get the forms online, fill them in, then file the form in-person? Does it make sense that the forms do not include rules about service? Does it make sense that the way lawyers count days in Ontario is different than the way everybody else counts a day? Does it make sense that sending someone a document after 4pm equals service on the following day? Does it make sense that serving someone by email is a pain in the a**?  Does it make sense that you go to court to book a date with the court?

But the longer I interact with the system, the less absurd it looks to me. I become more and more desensitized to the structure. I become used to the confusing design of it all. Instead, it begins to look normal. Of course, you don’t count a holiday. Of course, you fax it. Of course, you file it in person. Of course, you need to have the original (even though the whole document was created electronically). Of course it takes years to resolve your claim.

But how does our court system maintain its legitimacy if it remains out of date. If it continues to cling on to paper? If it continues to communicate in legalese? If it continues to process cases slowly? If it puts civil cases on the back burner? If it continues to go on like the Internet is some kind of phase, like a moody teenager.

Why do we think that treating our courts “like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?” (Bank of Montreal v Faibish, 2014 ONSC 2178)

Luckily, it appears that our government is beginning to change things. The Ministry of the Attorney General will be launching an e-filing service in five locations on April 24, 2017.

The Ontario Bar Association announced that “Phase 1 of the service will enable e-filing of the documents required to initiate a civil action in the Superior Court of Justice, auto-issuance of statements of claim and notices of action, and online payment. The pilot will be launched in Brampton, Ottawa, London, Newmarket and Sudbury, with a province-wide rollout to commence later in the year. The second phase of the service will be introduced shortly after the full rollout of phase 1, and will enable the e-filing of additional document types.”

I eagerly await these changes. I hope that the electronic filing assists users with the confusing rules about service. Ideally by incorporating prompts about service in its design and prompts about other rules (like adding a party).

(This is not a sponsored post. Views are my own and do not reflect the views of any organization.)

Tomorrow’s Law Firm

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In The Future of the Professions Richard and Daniel Susskind state that we are starting to see technologies displace traditional ways of working. We are still in a transitionary phase between the era of the print-based society and the Internet based society. During this transitionary phase, traditional professionals working in conventional institutions will still be needed as the main interface between the lay person and the specialized knowledge. However, as we fully progress into an Internet/technology based society, traditional professionals will no longer be THE DOMINANT interface between lay people and knowledge/expertise.

It is in this context of reading the Future of The Professions and other like minded articles that I predict the future of law firms.

1. Tomorrow’s law firm will look different.

2. Most firms won’t be built upon the billable hour. Or the billable hour masquerading as something else. It will charge clients based on the end product. The focus will be on the end product. And technology will transform how the end product is created.

3. Anything that can be outsourced or automated will be outsourced or automated.

4. Law firms will be managed by non-lawyers, with specialized training.

5. The raison d’être for firms will shift towards client experience.

6. Law firms will use gamification to get employees to work harder, preferring the carrot over the stick.

Currently Uber is using gamification to incentivize its drivers. Using psychology to make drivers take on more riders. Or using psychology to make its drivers go to certain areas at certain times.

In the New York Times article, “How Uber Uses Psychological Tricks to Push Its Drivers’ Buttons”,  they say:

The secretive ride-hailing giant Uber rarely discusses internal matters in public. But in March, facing crises on multiple fronts, top officials convened a call for reporters to insist that Uber was changing its culture and would no longer tolerate “brilliant jerks.”

Uber’s innovations reflect the changing ways companies are managing workers amid the rise of the freelance-based “gig economy.” Its drivers are officially independent business owners rather than traditional employees with set schedules. This allows Uber to minimize labor costs, but means it cannot compel drivers to show up at a specific place and time. And this lack of control can wreak havoc on a service whose goal is to seamlessly transport passengers whenever and wherever they want.

Uber helps solve this fundamental problem by using psychological inducements and other techniques unearthed by social science to influence when, where and how long drivers work. It’s a quest for a perfectly efficient system: a balance between rider demand and driver supply at the lowest cost to passengers and the company.

Employing hundreds of social scientists and data scientists, Uber has experimented with video game techniques, graphics and noncash rewards of little value that can prod drivers into working longer and harder — and sometimes at hours and locations that are less lucrative for them.

In sum, Tomorrow’s Law Firm will look different than the firms of today. They will be meaner, leaner, and smarter.

(Views are my own and do not reflect the views of any organization.)

Can Algorithms Save the Courts?

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Algorithms are behind the most sophisticated kidney exchange programs in the world. In Canada, the Canadian Blood Services has built a national Living Donor Paired Exchange Registry. The Registry helps incompatible living donors receive a kidney transplant.

Pairs are matched by comparing the medical information from all pairs in the database and by identifying pairs that might be able to exchange donors. The Registry may also identify a series of pairs that could exchange kidneys in a chain like fashion.

As you can imagine pairing kidney donors can become quite complicated. Algorithms help untangle the madness. Algorithms are a process or set of rules to be followed in problem-solving operations.

We are constantly bemoaning the lack of resources funneled to the judiciary. Perhaps algorithms can be created and applied to stretch the limited resources of our courts, from matching judges to courtrooms, cases to judges, etc. in an efficient way. And also by creating algorithms to decide simple disputes that are regularly before the courts and tribunals.

For example, common interlocutory motions or types of small claims can be solved by using algorithms.  Ideally, the algorithms would be run by computers, reducing the amount of resources required in the long run.

(Views expressed in this blog are my own and do not reflect the views of any organization.)

Suing Apple over FaceTime

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In December 2014, a young child died in a car accident. The culprit: allegedly a distracted driver. The driver was on FaceTime.

The parents of the child are suing Apple for the iPhone’s design. The parents allege that Apple was negligent for not warning users that FaceTime was dangerous “when used or misused in a reasonably foreseeable manner” and by not including technology in the cell phone to disable certain functions while driving.

Does Apple have an obligation to warn users? It is already legislated in most jurisdictions to not use your cellphone while driving. If people need to be warned by Apple about the dangers of FaceTiming and driving, perhaps those drivers shouldn’t be driving in the first place.

The more interesting argument is the technology argument. Is it careless for Apple to not institute features that disable cellphone functions while driving? What is the standard of care to be applied to Apple?

In the statement of claim, the plaintiffs state that the Apple should know or should have known that drivers would be distracted by the features on their iPhones. And that Apple breached its duty of care by failing to use reasonable care in the design and manufacture of the phone by not using the lock-out technology.

This is a novel argument. I predict that Apple will move to strike the claim before filing a defence.

But if Apple is unsuccessful, would this open the floodgates? When Apple / Google / Samsung etc. makes products, what duty of care do they have to their users? Do they have a duty of care to lock-out users while driving? Do they have an obligation to build products that ensure privacy by design? Particularly so that Apps don’t steal data? Is failing to prevent Apps from stealing your data negligent?

Moving Forward: From Ink Quills to Electronic Documents

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This weekend I attended the Ontario Bar Association Annual General Meeting  (AGM) as a Provincial Council Member. The AGM brought together lawyers from across the province, from different practice areas, and from different career stages. This led to invigorating discussions about the future of our profession.

A significant topic was the Law Practice Program (an alternative program to the traditional articling program in law firms). The Law Society of Upper Canada recently released a report commenting on the viability of the Law Practice Program. As a reason for possibly scrapping the program, it was stated that graduates of the Law Practice Program are seen as second tier to traditional articling graduates.

At the AGM, many individuals argued that the perception that graduates of the Law Practice Program are second tier is nonsense. This is because the program offers standardization and acts as a check on the unregulated nature of articling in private practice. Furthermore, traditional articling is rife with problems, which arise from its inherent structure. The problems mentioned echoed the sentiments written by Professor Adam Dodek in his 2013 article “The Ethics of Articling“.

It seems to me that the recommendation that the Law Practice Program be scrapped and that articling be shortened is a move by the Law Society to inch towards an American style practice of qualifying lawyers (i.e. no articles, tough bar exam).

Another topic of discussion was the modernization of the court system. This year the President of the Ontario Bar Association David Sterns plans to keep the Attorney General’s “feet to the fire” and shine a light on changes to the court infrastructure. As someone who frequently writes about electronic filing, I welcome this goal.

To end, I would like to echo Colin Stevenson’s (Chair of the Policy & Public Affairs Standing Committee) eloquent statement that “while we are bound by history, we need to be firm on progress.”

 

 

 

 

Law Firms: Look to Your Left, Look to Your Right

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The old saying to law students: “look to your left, look to your right, because one of you won’t be here by the end of the year” is untrue. So law students need not fret. But law firms, they should.

Today most law firms look to the firm down the street for their largest competition. But in a few years time, the real threat won’t be that law firm down the street. It will be some technology company that will encroach on an aspect of their work.

Currently, this looming threat is sitting in his parents’ basement or sitting in his university dorm room, working on the next big thing. The best example of this next top threat is DoNotPay. DoNotPay is a free artificial intelligence lawyer, designed by 19-year-old second year Standford University student Joshua Browder. DoNotPay helps users contest parking tickets in an easy to use chat-like interface. So far, the program has successfully contested 160,000 parking tickets across London and New York for free.

“The program first works out whether an appeal is possible through a series of simple questions, such as were there clearly visible parking signs, and then guides users through the appeals process. The results speak for themselves. In the 21 months since the free service was launched in London and now New York, Browder says DoNotPay has taken on 250,000 cases and won 160,000, giving it a success rate of 64% appealing over $4m of parking tickets.” (The Guardian)

The process for appealing fines is relatively formulaic and therefore perfectly suitable for applying artificial intelligence. Meaning that customers can receive accurate advice without paying high fees to lawyers.

Challenging parking tickets is just the beginning. And I can’t wait to see what’s in store.