Litigation Support Tip of the Night

January 10, 2019

In 2016, the Supreme Court of Wisconsin affirmed an order that the use of risk assessment software for sentencing violated a defendant's right to due process.  See, State of Wisconsin v. Loomis , 881 N.W.2d 749 (Wis. 2016).   The software used the Correctional Offender Management Profiling for Alternative Sanctions (COMPAS).   Loomis was convicted for his role as a driver in a drive-by-shooting.   He pled guilty.  The Wisconsin Department of Corrections prepared a report which included bar charts generated with COMPAS showing the Defendant's risk for pretrial, general, and violent recidivism.  The COMPAS assessment was referenced by the lower court at Loomis's sentencing.   Loomis was sentenced to six years in prison and five years of extended supervision.   

The Defendant's expert contended that because COMPAS was not designed to assist with sentencing, its use would lead a court to overlook a defendant's unique circumstances.   COMPAS was designed to determine when individuals could remain in their communities rather than be incarcerated.   The software's developer does not disclose how its software evaluates a person's risk for recidivism.  The COMPAS training manuals state that it is not be used for sentencing.  

The Wisconsin Court of Appeals certified two questions to the Supreme Court of Wisconsin:

1. Did the use of COMPAS at sentencing violate due process because the proprietary nature of the software prevents the Defendant from challenging its scientific validity?

2. Did the use of COMPAS at sentencing violate due process because the software took gender into account?

The Supreme Court of Wisconsin held that COMPAS risk scores could be used in sentencing because they were not the determinative factor in deciding if Loomis could be supervised in a local community and because the defense could challenge the scores.  It was also found that Loomis did not meet the burden of showing that the court relied on his gender in issuing its sentence.   

The Supreme Court of Wisconsin did however find that a court cannot rely on COMPAS in order to determine whether a defendant is incarcerated or to decide the length of his sentence.   A court must explain the other factors in addition to the COMPAS risk assessment that it uses in sentencing.   A presentencing investigation report should inform the court that how COMPAS weighs certain factors is proprietary; the scores rely on group data; studies of COMPAS show they may disproportionately classify minorities as having a risk for recidivism; COMPAS uses a national sample, without having a Wisconsin specific study; and COMPAS was not specifically developed for the purpose of sentencing.    

The Supreme Court of the United States denied a petition for a writ of certiorari.   See, Loomis v. Wisconsin, 137 S.Ct. 2290 (2017)

March 28, 2018

As noted in the Tip of the Night for March 23, 2017, a McKinsey study in January 2017 found that 23 per cent of work performed by lawyers could be automated with existing technology.   

An interactive chart available here can be used to display the statistics for lawyers and other legal professions. 

The chart also shows that 69% of paralegal tasks could be automated, and 78% of work performed by legal secretaries.   

67% of work currently done by judicial law clerks

48% by bailiffs

37% by database administrators; and

16% by court reporters.

Even 26% of the work of administrative law judges and 11% of arbitrators' jobs could be automated. 

March 23, 2017

On March 19, 2017, the New York Times published an article which is sure to be widely noticed in the legal community.   Entitled, "A.I. Is Doing Legal Work. But It Won’t Replace Lawyers, Yet.", the article makes the case that concerns about artificial intelligence eliminating large numbers of attorney jobs is probably overblown.   The Times highlights the findings of Dana Remus of the University of North Carolina School of Law, and Frank Levy of MIT in their study, "Can Robots Be Lawyers? Computers, Lawyers, and the Practice of Law".     The paper claims that even a uniform implementation of legal technology would only reduce lawyer's billable hours by 13 per cent.    Remus and Levy's research indicates that lawyers currently spend only 4 per cent of their time on document review.  

The Times contrasts these findings with  a McKinsey study that concluded 23 per cent of attorney tasks can be automated.    Also discussed are the efforts of Alexander Hudek of Kira Systems to automate contract review.  He's apparently been successfully at reducing the time required to review contracts by 20-60%.    Ross Intelligence has software that can quickly find cases similar to the one an attorney is working on.   Ross can also generate legal memoranda which an attorney interviewed by the Times claims are indistinguishable from those drafted by attorneys, but that is only because human input is involved.  

An attorney from Palo Alto, is quoted as claiming that a patent case in 1999 that would require three partners, five associates and four paralegals, will now only necessitate one partner, two associates, and one paralegal.   

What comes up in a Times article is likely to get repeated either first hand or second hand in the legal community, so it's a good idea to be familiar with the more salient facts in it. 

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Sean O'Shea has more than 15 years of experience in the litigation support field with major law firms in New York and San Francisco.   He is an ACEDS Certified eDiscovery Specialist and a Relativity Certified Administrator.

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