Challenging Technology’s Ability to Produce Reliable Evidence
Author | Ken Chasse |
Date | October 17, 2018 |
Access to Justice (A2J): for our work as lawyers, we don’t know enough about the technology that produces much of the evidence we have to deal with. So how to be educated affordably? This is an outline of three articles that I have recently posted on the SSRN. (Click on each of the three hyperlinked headings below to download a pdf. copy of each.)
1. Technology, Evidence, and its Procedural Rules (SSRN, October 1, 2018, pdf., 64 pages)
The rules of procedure that govern proceedings concerning discovery, disclosure, and admissibility of evidence have to be flexibly applied to fit each different technology that produces the evidence being dealt with. That is particularly important for those sources of very frequently used kinds of evidence, such as:
(1) electronic records management systems (records now being the most frequently used kind of evidence);
(2) mobile phone tracking evidence (because we all carry mobile phones that continuously tell the electronic world where we are);
(3) breathalyzer/intoxilyzer device blood-alcohol-content (BAC) readings (being the foundation evidence for thousands of impaired driving and “over 80” prosecutions—Criminal Code s. 253), and,
(4) TAR (technology assisted review) software programs that are used to conduct the “records review stage” of electronic discovery proceedings that do the “reading-for-relevance” of large quantities of records, including email and text messages.
Much of the evidence now used in legal proceedings is produced by complex electronic systems and devices. But our legal education is inadequate for competently challenging technology’s ability to produce reliable evidence. So, how to deal with the “access to justice” (A2J) problem that is, educating counsel for court affordably for middle and lower income litigants?
Limiting the time and cost of legal proceedings by limiting the issues to be decided is becoming more difficult and unjustifiable. The more complex the sources of evidence are, the greater are the number and complexity of the issues of fact and law that must be decided to determine the reliability of such evidence and the adequacy of its production.[1] And, the more complex a technology, the more ways it has to break down. A motor vehicle has more ways to fail than does a bicycle, and therefore a greater probability to perform inadequately than does a bicycle. And so, each motor vehicle must be expected to generate more complex and costlier legal proceedings than will a bicycle.
Mass transportation based upon motor vehicles has imposed a vastly greater burden upon the justice system and its legal infrastructure than did mass transportation based upon horses 110 years ago. And, motor vehicle technology is still increasing the legal infrastructure necessary to regulate its use adequately—infrastructure that includes not only the volume of laws, regulations, and national and international standards of performance, but also the size of police forces, and the number of government departments, courts, judges, court administrative staff employees, and the number of lawyers, and the involvement of companies providing insurance, construction, and other related products and services.
And electronic technology in all of its applications will be even more varied and demanding of an adequate controlling legal infrastructure. In addition, the transition from pre-electronic to comparable electronic forms of technology and services is happening much faster than has transportation’s transition to motor vehicles from horses. The existence of the necessary regulatory legal infrastructure is inadequate. And, society’s majority that is middle and lower income people cannot afford the lawyers necessary to argue for infrastructure’s creation, let alone its proper application, and those lawyers’ education by retained experts. Can legal education keep up? The complexity of such issues and problems steadily increases because law societies and the method of producing legal services remain fixed and stationary.[2]
Because technology is constantly changing, lawyers’ education has to change accordingly so that they can challenge the reliability of complex technology’s sources of evidence. That includes arguments as to why and how the rules of procedure must be flexibly applied. For example, when determining issues of the, “admissibility of evidence,” what should be the point at which the “onus of proof” can in fairness be transferred to the opposing party to provide, “evidence to the contrary”? Such should be made to vary with, inter alia, the nature of the technology involved, within the particular context in which it is used.[3] But you say, that might best be left to expert opinion evidence. Yes, but most litigants can’t afford that.
Instead, law societies have to formally recognize a “legal research lawyer specialist” for each major area of law, part of whose stock-in-trade would be knowledge of such frequently used, evidence-producing technologies in each such area of law. Such innovation is now necessary: (1) not only because of the volume and complexity of legal literature in each area and the multiple ways of researching it; (2) but also so as to make available to all lawyers such knowledge in aid of preparing competent cross-examinations and arguments with which to challenge the reliability of such frequently used sources of evidence; and, (3) to argue how the rules of procedure that control proceedings concerning, discovery, disclosure, and admissibility, must be applied flexibly so as to be compatible with constitutional requirements as to “fair trial,” and, “an opportunity to make full answer and defence” (Canadian Charter of Rights and Freedoms ss. 7 and 11(d)). But, because few law firms would have sufficient volume of production to be able to employ such highly specialized research lawyers, they would have to be made available in support services operating at cost for each case and counsel served.
However, law societies have no history of either creating specialist legal research lawyers, or support services. They are not going to do it. Consider their performance in regard to even more important major problems. Does any of them have a program the purpose of which is to solve the A2J problem that is the unaffordability of legal services for the majority of the population that is middle and lower income people? And, the per capita number of lawyers in private practice has been shrinking for decades, particularly so, the number of general practitioners.[4] What are law societies doing to defend the market of the general practitioner from the commercial producers of legal services, such as, LegalZoom, LegalX, RocketLawyer, etc., and the many small start-up applications of electronic technology (“apps”) for direct-to-retail sales? Nothing! As to such retail sales by “apps,” see: Ken Chasse, “Artificial Intelligence: Will it Help the Delivery of Legal Services but Hurt the Legal Profession?” [forthcoming in Slaw].
If the law societies won’t sponsor the creation of the necessary support services, we should look to the big law firms, or groups of law firms to do so. Consider the Fasken InHouse model of support service.
Given that technology is pervasive, and a constantly evolving, moving target, how to teach lawyers and law students about such factors as, software error rates, the strengths and vulnerabilities of particular electronic systems and devices, their national and international standards, and the requirements for their adequate manufacture, usage, and maintenance, they being three areas of frequent human failure? Very little of that has an adequate legal infrastructure to control it. Manufacturing motor vehicles allegedly does. Nevertheless, every year its manufacturers must recall millions of automobiles that they have inadequately produced.
In addition to the quality of...
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