Data Analytics And The Importance Of Loser Law
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In a fascinating presentation entitled The Malpractice of Hunches at the CALIcon 2018 conference, Fastcase founder Ed Walters discusses the interplay between artificial intelligence, big data and the Code of Professional Responsibility. In one example, Walters considers a scenario where a data analytics program with a 100 percent accuracy rate determines that a particular case ought to be settled — but the lawyer ignores the result, proceeds to trial and loses. Could that lawyer be sued for malpractice?
To many lawyers, Walters’s hypothetical may seem outlandish. Traditionally, lawyers have always been immunized from legal malpractice liability when they’ve exercised reasonable judgment. Thus, if a lawyer exercises judgment based on years of experience and advises a client to take a case to trial notwithstanding the results of a computer algorithm, then liability wouldn’t attach under the current standard of care. But consider a second scenario — one where a lawyer takes a case to trial but failed to research applicable precedent and never realized that it would bar the client’s recovery. Here, most lawyers would agree that the failure to adequately research a case to a client’s detriment constitutes malpractice. So if that’s true, then why shouldn’t overlooking or failing to give due consideration to another piece of information — albeit analytics rather than judicial precedent — similarly trigger a malpractice claim? In short, Walters’s argument has legs.
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