AI, short for Artificial Intelligence, is all the rage at present. The business world is trying to find ways to use AI for many reasons, some of course, involve finding ways to cut out the human component – that is, employees. Others try to find ways to do things better than humans can on a repetitive basis. Streamlining processes, providing better service (at lower cost) and many other objectives are a part of the increased interest in AI. (I will digress and note that much of what is being touted as AI is not really AI. Having attended Georgia Tech for graduate school, I learned enough about AI to tell the difference. True AI involves the goal of computers going beyond what is usually said to be AI today. Many AI applications involve the computer “learning” by improving on repetitive tasks and using the computing power of “big data” to broaden a knowledge base. This is not really AI as the computer experts want it be.) I mention all of this because, in over 30 years of working around lawyers and litigation, I have seen several attempts to find “short cuts.” These have often had to do with jury selection with various programs being designed and sold to make jury selection easier. I had a recent conversation with a long time client who noted many efforts by insurance companies to use computers for claims handling to reduce big verdicts. Coincidentally, I had just read an article about a new attempt to computerize and use AI to predict which cases were the most risky. Without knowing what has really been done about this product, I looked at the program with great skepticism. I believe computers can streamline the litigation process. They can keep up with deadlines and prevent things from falling through cracks. I am sure too, that with large data sets incorporated, a computer program can help identify risky claims. More importantly, perhaps they can help keep adjusters from being “asleep at the switch” by flagging critical details that may be easy to miss. But, claims, leading to verdicts, are not governed by machines. They are governed by humans. Maybe there will come a day when our society will accept a decision made by a computer in a civil or criminal case, but that day is far away. Until then it takes real intelligence, on the part of humans, to process a claim (adjusters), to litigate a case (lawyers and judges), and to make decisions (jurors or arbitrators). These are things beyond the purview of machines. I’m sure that, despite a computer being able to win at chess, Melissa’s ability exceeds that of a computer to successfully pick a jury. Games like chess do not have the impact of a jury decision. And, the rules of games or flight planning and airline employee scheduling are much more well defined than the activities involved in litigation. Looking for any “quick fix,” like AI, can blind one to the realities inherent in any endeavor – especially something as human driven as litigation.
As David and I have written in previous posts, many people busy themselves with looking for an easy way out, a short cut, or an end run in any given situation. Unfortunately, this includes attorneys, who often fall for the latest fad when litigating cases. Whether it’s the old time snake oil of neurolinguistic programming (NLP), yesterday’s characterization of jurors as snakes (the hilariously named reptile theory), or today’s latest trend of categorizing jurors, with another funny name I should, but can’t remember, many attorneys waste valuable time making decisions based on fads rather than preparing their case in a thoughtful manner. Whether or not artificial intelligence can out perform me in selecting jurors and juries remains to be seen. Some of my friends teasingly call me a machine, but although I may make decisions with machine like precision, I am, first and foremost, a human being. I just happen to be a better listener and observer of human nature than other people, along with decades of education and experience in doing my job. I am a huge fan of the movie series “Planet of the Apes,” but I don’t care much for “2001 A Space Odyssey.” Whether humans are surpassed by apes or computers and AI, I will keep working to demonstrate to my clients that there are no quick ways to know if a particular type of person will be a help or a hindrance on their jury. And, if that fails, I can always consult my Magic 8 ball!