Understand the rules if you want to play the game

Understand the rules if you want to play the game by Ken Grady is sub-titled ‘While you weren’t watching, techies and corps changed the rules.’

When I was growing up, I had a good friend who liked to play card games. His favorite games was Hearts, but he was willing to play many other games. Since I grew up in the Luddite era (yes, our TVs were in black and white and only had three channels — four if you counted a local station), rainy day card games were not unusual. When we got tired of cards, we would move to board games, including chess.

From time to time, we would change things up. We would invent new rules for old games. The new rules would change on the fly, which made the games hard to follow. But, the exercise entertained us. Of course, the more complicated the better, which inevitably led to fights. Neither of us wrote down the rules which meant we quickly lost track of how to play the evolved game. Now, it seems some of the fun of game playing has gone away. The rules are embedded in software and other gimmicks. Rainy days just don’t seem the same.

Rules mean something different to lawyers. Rules are to be followed. If the other person doesn’t follow the rules, they should suffer the consequences. Rules define the game and knowing the rules makes you a better player. Back in the day when I was a litigator, the lawyer with a better command of the rules could turn the tide, whether in a hearing or a trial.

Rules raise a problem when we start thinking that our rules are the only rules. They become very challenging when the other person plays by a different set of rules. I was the lawyer overseeing litigation at once company. We had an incident in one of our retail stores. We tried to settle, but the plaintiff’s lawyer wanted a huge payout. The amount demanded meant the lawsuit was picked up by the company’s insurer and it took over running the defense.

 The insurance company hired a Harvard Law School graduate with many years of experience as a defense lawyer. The case was in a sparsely populated Western state, but the lawyer was a native so the insurer was not bringing in a gunslinger from out of town. 
The case went to trial. The Harvard defense lawyer played by the rules. But, the plaintiff’s lawyer played by his own rules. If he wanted the jury to believe something, he would just tell them. Testimony was an inconvenience that got in the way of a good (if made up) story. Harvard would object, the judge would mutter something about the jury deciding for themselves, and the plaintiff’s lawyer would keep rolling.

 

As you probably suspected, the plaintiff won a large verdict (largest ever in the state for  the type of claim). The verdict was upheld by the state supreme court, composed of five individuals. Four of them had received sizable contributions for their re-election campaigns from — you guessed it — the plaintiff’s lawyer. Three of the four were former plaintiffs’ lawyers. Harvard and the plaintiff played by different rules.

The rules are changing in the legal industry and most U.S. lawyers have lost track of the game. Under the old rules, lawyers practiced law. That was it — that was the rule. Under the new rules, many parties provide services that fall under the general umbrella of “legal services.” Sometimes, those services constitute “practicing law” by almost any definition. Many times, the services fall into the not-well-defined universe. If a computer analyzes contracts and provides that analysis to the user is it “practicing law”? Not really.

Understand the rules if you want to play the game

But, the change in the rules means that many more are playing the game. Now, if the players were limited to those who do things in the U.S., we would have one story. But, the game is more interesting. The number of players is unlimited and they come from all over the world. And to make it really interesting, they don’t play by the U.S. rules — they have their own rules.

Elon Musk and Vladimir Putin exchanged, indirectly, some thoughts on artificial intelligence recently. Putin said that whoever took the lead in AI would, basically, rule the world. Winner takes all. Elon Musk’s view was that many countries would be competing for the “winner takes all” title, which could lead to WWIII.

China is emerging as a candidate to take the lead in AI. They aren’t in the lead yet, but they have made AI superiority a priority. China will play by China’s rules as it seeks to win the game of AI domination. The U.S. will play by U.S. rules, and so on as we go through the list of countries that get in the game.

Of course, the players below the country level may follow their own rules. For example, criminals are known to have different rules from the ones imposed by governments. These many different and overlapping sets of rules add some complexity to the game. Certainly, more complexity than my friend and I faced as we played cards on the floor of his room on a rainy afternoon.

You might assume that the rules I am referring to are the “rules of law” or, in the case of criminals, the “rules of lawlessness.” They are not. The rules are not written in any statutes, established by any judges, or otherwise promulgated. The rules are really what anyone wants them to be — the rules are those crafted by techies and the programs they write.Let’s go back to the lawyers, struggling to understand this world. In this worldwide AI game, lawyers are like Harvard, our defense lawyer friend. They want to play by the rules they know and understand. They want to do things the way they have been taught to do them. But everyone else is playing like the plaintiff’s lawyer — they have their own rules. The game of AI works like that.

Let’s go back to the lawyers, struggling to understand this world. In this worldwide AI game, lawyers are like Harvard, our defense lawyer friend. They want to play by the rules they know and understand. They want to do things the way they have been taught to do them. But everyone else is playing like the plaintiff’s lawyer — they have their own rules. The game of AI works like that.

What does all this mean? Well, it means that each corporation, each AI inventory, each institution, can put in place the rules it wants (or no rules at all). What rules are embedded in things? What rules do algorithms follow? What happens to the data used in AI? What biases exist in the systems? All of these questions are answered with unknown rules.

A recent case from Wisconsin will, in a small way, illustrate the point. In Wisconsin v. Loomis, the prosecutor included with pre-sentencing materials a report called “COMPAS.” The report evidences a new trend to use data-driven analyses as part of the criminal justice process. The COMPAS report purports to predict whether the defendant is likely to commit crimes again and, therefore, help the court decide what type of rehabilitative services to provide the defendant while he or she is incarcerated. The COMPAS report is created by a private company that gathers data and runs it through an algorithm.

The defendant argued he should have access to the data and algorithm to independently verify the validity of COMPAS. COMPAS’ owner argued the algorithm was proprietary and refused to produce it and the court agreed. So, although the trial court used COMPAS to decide what to do with the defendant, the court, the defendant, and the prosecutor did not know anything about the algorithm. New rules.

Lawyers who don’t understand that the new rules require a much greater understanding of the tech world than “swipe right” have lost track of the game. That is dangerous, not just for them but for all of us. As legal services get distributed around the world, as major corporations take over legal services from the courts, as most of dispute resolution moves from public to private, understanding that the rules have changed will be a big deal. Knowing technology isn’t about being the lawyer who can number pdf documents without printing them. It is about understanding how “rule of law” is becoming “rules of software” and how to play the game under those rules.

Author 

Ken is a speaker and author on innovation, leadership, and on the future of people, process, and technology. He is Adjunct Professor & Member, LegalRnD Faculty, Michigan State University. On Medium, he is a “Top 50” author on innovation and leadership. You can follow him on Twitter, connect with him on LinkedIn, and follow him on Facebook. 

Ken first published Understand the rules if you want to play the game as We Need To Understand The Rules To Play The Game on The Algorithmic Society on September 25, 2017.

Credit: A  depiction of the original Mechanical Turk. Source: Wikipedia.

Posted by on Oct 24, 2017 in BigLaw firms, Clients | 3 comments

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Andrew Grech
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Andrew Grech

Ken,
I enjoyed reading your post – thanks. I wonder if you have any thoughts on the best ways for lawyers and those interested in applying AI to solving legal problems for people more affordably to dive more deeply into the world of AI.

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7 years ago
Ken Grady
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Ken Grady

Andrew – If you don’t have a background in AI, I suggest reading some general books in the area. Max Tegmark’s recent book Life 3.0 is a good read. Pedro Domingos’ The Master Algorithm is a bit more wonky, but it will give you a deeper understanding of the field of AI. From there, you have two paths. The first is to work with data scientists (e.g. in consulting firms) that are knowledgeable in the area or an alternative services firm in law that does the type of thing you are interested in doing. This is the path most lawyers will have to take. If you have a computer background, or want an all-absorbing hobby, you can learn to do AI through online tutorials, books, and a lot of practice. The strange thing about AI is that you can do some amazingly powerful things on a laptop. Usually the best course is to recognize that your firm/practice is the source of data, and then partner with an expert who can help you mine and use the data.

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7 years ago
Ken Grady
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Ken Grady

Andrew – In my first reply, I made an obvious, if unforgivable, omission. Kevin Ashley recently published Artificial Intelligence and Legal Analytics (it just came out). This is the book to read if you want to know the state of the art in applying AI to law.

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7 years ago