In Johnny Cash’s great song “The Legend of John Henry’s Hammer” (inspired by American folklore hero/railroad worker John Henry), one of the great man vs. machine showdowns takes place.Accepting the railroad boss’ challenge that he can’t outpace the latest in technology, a steam drill that threatens the railroad workers with obsolescence, “steel-drivin’ man” John Henry defiantly proclaims
“A man ain’t nothing but a man
But if you bring that steam drill ’round, I’ll beat it fair and honest
I’ll die with a hammer in my hand
But I’ll be laughing, because you can’t replace a steel drivin’ man
Although we’ve become accustomed over the years to technological improvements making things better, faster, cheaper, and putting entire classes of jobs on the endangered list (run into any blacksmiths lately?), it nevertheless is a shock to the system when technology invades the realm of professional judgment.Imagine, then, the controversial prospect of using computers to analyze legal cases, craft arguments, and decide whether, where, and how to file a lawsuit.Will databases jampacked with information and algorithms predicting what will happen render trial lawyers like me as obsolete as John Henry?That day may be closer than you think.
The field of “quantitative legal prediction” combines databases with algorithms that can analyze variables, identify patterns and factors that affect outcomes, and then predict those outcomes.One company, for example, is Lex Machina, a startup that originated from the IP Litigation Clearinghouse at StanfordUniversity.Lex Machina uses its database to analyze settlement patterns and win rates.To do so, it first had to accumulate a vast amount of information, and so today its database contains information from 128,000 intellectual property cases, along with records from 63,000 law firms, 134,000 attorneys, 64,042 parties, and 1,399 judges, spanning the past decade.But data alone is not enough; Lex Machina’s co-founder, Joshua Walker, estimates that it took a team of engineers and lawyers about 100,000 hours to correctly categorize, tag, and code the information.
Since a company’s intellectual property often represents a significant portion of its value, corporations invest a great deal in obtaining and protecting things like patents.However, patent litigation is expensive—some studies have concluded that the average cost to take a patent infringement case to trial is as much as $5 million.That’s where quantitative legal prediction comes in, says Walker.For a fee, Lex Machina will crunch the numbers and provide a client with insight into costs, win rates, settlement patterns, etc.Walker believes that this technology will “revolutionize how corporate finance looks at litigation,” and will significantly impact how companies value and manage their intellectual property portfolios.
Another company trying to realize the potential of this technology is TyMetrix, a vendor of electronic billing and case management systems for corporate law departments.TyMetrix’s data warehouse boasts information accumulated from $25 billion in legal spending, and the company uses analytical tools to mine that information and help forecast legal costs.For example, a general counsel at a given company can better manage legal costs with an analysis that incorporates variables like the size of the law firm, its geographical location, the attorney’s title and years of experience, and his or her specialty area.Yet predictions are only as good as the amount and quality of the data on which they’re based.To be as accurate as possible, you have to collect vast amounts of data.Even TyMetrix is limited, since it gathers only certain types of information, and only from clients who have opted to share that information.
The legal profession has been quietly moving toward a greater reliance on technology for some time.Large, complex cases spawned the e-discovery industry, and within the e-discovery field “predictive coding” uses algorithms to analyze large quantities of documents (but not necessarily all) and predict which ones are likely to contain information relevant to a given case.For years, trial lawyers (myself included) have made use of courthouse and private databases to research verdicts and reported settlements in order to help assess the potential value of a lawsuit, or to study what juries in a given locale have historically done.But is lawyering in danger of being reduced to mere actuarial formulas?Daniel Katz, a professor at Michigan State University College of Law who has studied the impact of technology on the practice of law, says predictions made by computers are “not going to end lawyering . . . but I definitely think some percentage of tasks that lawyers do are going to be replaced by machines and/or technology.”
I’m not ready to bow to our robotic overlords just yet.Sure, I research verdicts to help me evaluate a case, and I bring my laptop or iPad to trial to have all kinds of information at my fingertips, just a few mouseclicks away.But as far as I’m concerned, there’s no substitute for the cumulative experience of a seasoned trial lawyer who’s stared down countless witnesses or looked into the eyes of hundreds of jurors over the years, and the insight that comes from doing that.All the technology in the world can’t substitute for reading the “tells” of a shaky witness, or the body language of the jurors.So, I guess I’ll go out like John Henry, with my hammer—or at least my legal pad—in my hand.
What better way to mark the end of summer (as we send children back to school, return from vacations, and otherwise face reality) than with an acknowledgment that the litigants and controversies populating the legal system remain just as offbeat as ever?Here are a few gentle reminders of our system of “law and disorder.”
In Easton, Pennsylvania, Dave Gorczynski learned a lesson about taking things too literally.The bearded, ponytailed young man was participating in an “Occupy Easton” protest (a far cry from Wall Street) in August at a local branch of Wells Fargo Bank.Trying to send a message about predatory lending practices, he was holding up signs saying “You’re being robbed” and “Give a man a gun, he can rob a bank.Give a man a bank, and he can rob a country.”He later did the same thing at a Bank of America, where a bank employee notified police.Taking him a little too literally, Easton police arrested Gorczynski and charged him with attempted bank robbery.He was released on bail, but still faces two felony charges.Easton Police Chief Carl Scalzo maintains that his officers acted appropriately, evidently not getting the fact that Gorczynski was taking part in a political protest.
Maybe Gorczynski should adopt the “I forgot” defense.Years ago, comedian Steve Martin joked that the foolproof way to get out of any criminal wrongdoing was to simply maintain that you forgot the act was illegal—the “I forgot” defense, if you will.Maybe Sydney, Australia lawyer Michael Sullivan remembered that long-ago sketch.Sullivan recently persuaded a judge that he suffers from “dissociative amnesia” and that the condition caused him to assume the identity of an art thief, yet not remember his actions.In December 2008, Sullivan was dining at an art gallery restaurant when he made off with two paintings valued at $14,500—an event recorded on the gallery’s security cameras.Police later found both paintings hanging up at Sullivan’s home, and Sullivan tried to tell them that he had paid a $2,000 deposit for the artwork and planned on paying the gallery the balance.Acknowledging that this “is a somewhat bizarre case,” defense attorney Tony Bellanto nevertheless produced two psychiatric reports on behalf of his 54 year-old client, claiming Sullivan simply had no memory of committing the theft.Judge Jennifer English accepted the odd defense, setting Sullivan free on a 2 year good behavior bond.
From being caught red-handed robbing an art gallery to having a bunch of evidence documenting one’s crimes, you’d think that having too much evidence would be a nice problem for most prosecutors to have.Not according to Stephanie Rose, the U.S. attorney for northern Iowa.She recently asked a federal judge to dismiss charges against a fugitive doctor charged in what was the country’s largest internet pharmacy prosecution.Over a 9 year investigation, prosecutors had accumulated over 400,000 documents and two terabytes of electronic data in their case against Dr. Armando Angulo, a Miami-based doctor who fled to his native Panama after his 2007 indictment for selling prescription drugs to patients he never saw or examined.The evidence in the case—which helped close down two internet pharmacies and helped convict 19 other doctors as well as other defendants who had illegally sold some 30 million pills—was simply too voluminous.The two terabytes of data—the equivalent of the text of 2 million novels—was taking up 5% of the DEA’s worldwide electronic storage.Since Panama doesn’t usually extradite its citizens, maintaining the government’s case against Dr. Angulo constituted “an economic and practical hardship” for the DEA, according to Ms. Rose.A federal judge agreed and dismissed the case—not for lack of evidence, but in this case, too much evidence.
I’ve written before about how failure to proofread legal documents carefully can result in expensive mistakes.As it turns out, city officials in Santa Clara, California may have made a $548 million mistake, all over two words.A proposed ballot measure to renew a $548 million tax allowing the local water district to maintain the city’s water supply featured a 77 word summary—a violation of election laws mandating no more than 75 words.When the water district board realized its mistake, it was hastily corrected—perhaps too hastily, as it turns out.Apparently, the meeting at which the corrected summary was approved missed the requisite notice period required under California’s open meetings law by less than an hour.Oops!Now a local taxpayers group is threatening a lawsuit unless the measure is taken off the ballot.Sounds like two little words and what city officials call a “minor technicality” may have a half-billion dollar impact.
What ever happened to the concept of “don’t kill the messenger?”City officials in the Belgian seaside resort town of Knokke plan to sue private weather service Meteo Belgique for incorrectly predicting bad weather in August.Mayor Leo Lippens says the flawed forecast hurt the town’s tourism trade.He says the weather service should be “financially responsible” for such “public disinformation.”
Jessica Angel and Colin MacKenzie of Adelaide, Australia love each other—perhaps a bit too much.The couple is facing a $4,000 fine for violating South Australia’s Environmental Protection Act of 1993, which includes noise pollution.It seems the couple have been having noisy sex—and lots of it—to the point where police have made 20 visits to their apartment.At one point, an “Emergency Environmental Protection Order” was served on Angel and MacKenzie, decreeing no noise for 72 hours—an order reportedly ignored by the couple.Mr. MacKenzie blames his girlfriend.
Finally, if you had any doubt that the political correctness police running all too many of our schools have taken things too far, consider what’s going on in Grand Island, Nebraska.Grand Island public school administrators have a district rule banning anything in the school that looks like a weapon; apparently they interpret this to include children making a “stick ‘em up” sign with their fingers.As if this wasn’t ludicrous enough, school officials want 3½ year old Hunter Spanjer (who is deaf) to change his name because of this “zero tolerance” policy.It seems that in Signing Exact English (S.E.E.) language, Hunter signs his name by crossing his forefinger and index finger and moving his hand up and down.School officials, worried that this could be taken to mean something threatening (from a 3½ year old?), reportedly have asked Hunter’s parents to change their child’s sign language name.Lawyers for the National Association of the Deaf have already been in touch with Hunter’s parents about protecting their son’s right to sign his name.
It looks like school officials could use a remedial course of their own—in common sense.
I recently talk to a dear friend whose voice sounded shaken. Seems that her daughter was leaving to go to college and neither her nor her husband could come to grips with their daughter being away from home. As I tried to console her it dawned on me that for some parents who are attached to their kids, find it difficult to see their kids leaving them, especially if they’ve never been away from home.
After I hung up with my friend, I remembered my first day in school, a day I will never forget! I cried my lungs out as mom — bless her heart — tried everything possible to make my first day in school a pleasant one. I was especially frightened of Sister Benigna, my first-grade teacher at San JoseCatholicSchool. Back then (in the late 40s), the attire of the Sisters of St. Mary of Numur, was something that would make any kid’s knees buckle. However, after a few weeks, she dispelled my fears with her gentle, yet stern discipline.
After trying several methods of comforting and alleviating my fear of school on that first day, mom asked Sister Benigna if she would allow my younger sister, Cecilia, to sit with me in class for a week until I got used to being in school. She agreed. Well, with Cecilia sitting next to me in class, I changed my attitude, forgot my fears and went on about the business of school. Though my sister was a year younger than me and was supposed to be in school for only one week, Sister Benigna allowed her to stay. The both of us graduated from high school in 1956. My sister can thank my unrelenting tears in first grade for her early graduation.
Of my three kids, only one of them cried on their first day in school. It was my middle child, Michele. Just like my mom, I tried everything in the world to make her first day in school a pleasant one. Nothing worked. My son, Larry, who is older, was already in middle school when she started the first grade and wasn’t there to help her with her fear of school. I still remember the pain I felt in my heart when I left Michele crying aloud as she was held back by her teacher. Her sobs and shouts, “Daddy! Daddy! Please don’t leave me,” echoed through the school hallway and broke my heart. I remember that I cried all the way to work, thinking of her. I knew then how mom must have felt when she heard my cries on my first day of school. That evening, I asked my wife to quit her job or take some time off to be with Michele in hr first class until the youngster was used to it. My wife’s boss gave her some time off, and in a few days everything was all right. But Michele never grew to really like school.
On the other hand, my youngest daughter, Cecilia, was the opposite. She was very active and in high school was elected as a cheerleader for four straight years. As a senior, she was elected class favorite and homecoming queen that year. To be honest with you, my wife and I never thought that her high school’s predominately white student body and teachers would choose our brown and beautiful daughter as homecoming queen. That goes to show you how much we knew about our daughter’s personality and her friends at school.
However, her school activities didn’t come without some discomfort to us. Her friends and involvements almost drove my wife and me to the point of running away from home. You parents know what I’m talking about. Yes, that darn telephone (before cell phones came along)! Throughout the week, after school, late at night and especially on the weekends — that telephone rang constantly. My wife and I didn’t even want to answer it because we knew it wasn’t going to be for us. Or, if we did, we just said, “She’s not here. Do you want to leave a message?” After a while that got real old with us.
One time, the phone must have rung at 3 a.m. “Is Cecilia home?” asked some young boy. “Sure,” I said angrily. “But try calling at a decent time like the year 2025.” After that I asked him for his dad’s name and phone number and told him I was going to call his dad at 3 o’clock and ask to talk to his son. Funny, he never bothered us again.
After Cecilia graduated from high school she decided to attend TWU in Denton to embark on her nursing career. I remember my wife and I driving her to the university and helped her take some items for her room at the dorm. After we got her things in the room, she walked back to my pickup with us. This was the first time our daughter had ever been away from home. As I drove away, I could see her in the rear-view mirror. Though I held back my tears, I wanted to stop and shout at her, like I shouted at my mom so many years ago: “Please don’t leave us! We won’t even care what time your friends call you.”
Today, my wife and I, and yes, even Cecilia, are again going through the same school process we went through with our grandkids!
The recent victory of Ted Cruz in the U.S. Senate Republican primary and the electoral successes of a number of conservatives running for the Texas Legislature are strong indicators that the grassroots conservative movement, which proved so powerful in 2010, is alive and well in 2012.
While some liberal pundits are quick to dismiss the election results as a victory for the "far right”, they miss the real message from the voters: There is a growing disconnection between many of the career politicians who have been in power for an extended period of time and the voters they are supposed to represent. "They don't represent us anymore — it is all about them" is a common refrain one hears at the grassroots level.
Ted Cruz and many of the successful conservatives running for the Legislature were able to put together a coalition of both economic and social conservatives, reminiscent of the Reagan coalition. In fact, many of the newcomers remind me of those conservative outsiders like myself and others who went to Washington with President Reagan in 1981 to challenge the political elites and, in the President's words, "to drain the swamps". Under President Reagan's leadership, a team of conservatives put in place a set of policies to address the serious issues facing our country at that time — high unemployment, double-digit inflation, and an America in decline on the world scene. The solutions were relatively simple and straightforward, garnering broad-based support from the American public. More importantly, by and large, these conservative policies proved successful in getting the economy moving again and accelerating the demise of the Soviet Empire.
That brings me to my bit of advice for Ted Cruz and the other successful, conservative candidates, particularly those elected to serve in the Texas Legislature: Be prepared to govern. While Democrats control the Presidency and the Senate nationally, here in Texas, Republicans are in charge of state government and we need to act like it. It is up to us to fix a flawed Robin Hood school finance scheme which funds public education in part by transferring property taxes from so-called property-rich school districts to poorer districts with the State acting as the redistribution agent, forcing many Texans to be double taxed on their property. Gov. Ann Richards first tried to implement this Robin Hood scheme in 1993 through a constitutional amendment. Texas voters turned it down by a margin of two to one only to have Richards and the Legislature pass a statute imposing the same tax on property owners.
Nearly 20 years and two Governors later, this flawed system of school financing is still in place. It is constantly the subject of school litigation (as is currently the case) and clearly is a violation of our constitutional prohibition against a statewide property tax. Our conservative legislators in Austin have an opportunity to show real leadership by replacing the Robin Hood finance scheme with a fairer and more equitable system of funding public education in Texas.
Our legislators also need to address our heavy reliance on a so-called 4 x 4 curriculum and a STAAR test designed to make all our high school students "college ready". This broken system of performance measurements places an excessive emphasis on high stakes, standardized testing that isn't doing anything to improve teaching and real learning. This "one size fits all" standard for educating kids needs to be replaced by a common-sense approach to education which recognizes that students learn differently and have different talents.
There are multiple pathways to a quality education and educational success which can prepare our Texas students to be college ready and career ready. What we are doing now isn't working, and we should replace test learning with real learning.
Issues relating to water and transportation infrastructure needs aren't going away. We can't keep passing the buck one legislative session to the next with short-term patches while long-term problems persist.
True conservative leadership requires reaching out beyond one's base of support and coming up with common sense solutions to the problems that need addressing. To quote State Rep.-elect Cecil Bell Jr., "To solve complex problems, it is essential to find the simplest solution possible. Otherwise, your 'solution' becomes part of the problem, trapped in the quagmire of its own bureaucracy."
With new conservative leaders like Bell coming to Austin, and a number of returning legislators equally determined to apply a common sense approach to the issues confronting Texas on multiple fronts, I am optimistic that the nucleus of a conservative team, similar to the one that worked so well during the Reagan era of American politics, is beginning to come together again. It is the difference between loyalty to individual politicians in power vs. loyalty to principle. With Reagan, we who were part of that team felt it was about loyalty to principle.
In his farewell address on January 11, 1989, Ronald Reagan had this to say: "They called it the Reagan Revolution... For me it always seemed more like a rediscovery of our values and our common sense."
It is time for the next Reagan Revolution to begin, and the reinforcements have landed.
Tom Pauken, a Texas Workforce commissioner, is former chairman of the Republican Party of Texas.
Originally published on TexasWeekly.com (August 20, 2012)
Boy howdy, this controversy over comments made by the owner of Chick-fil-A, Mr. Dan Cathy, who stated recently that, he was against gay marriage has ruffled the feathers of those who are for same sex marriage and those who are opposed to it. In a recent interview with Baptist Press, Mr. Cathy stated, “We are a family-owned business, a family-led business, and we are married to our fist wives. We give God thanks for that.”
Proponents for same sex marriage have uttered some harsh and unspeakable words about the eatery. Even the Jim Henson Company, who has supplied their Muppet toys to the fast food restaurant, said in a statement, “We have notified Chick-fil-A that we do not wish to partner with them on any future endeavors.” Jason Parsley, editor-in-chief of South Florida Gay News, was also turned away by Mr. Cathy’s comments. He stated, “Since this has come out, I will not be spending my money at Chick-fil-A.”
Adding to the list of Chick-fil-A detractors were 3 mayors, all Democrats, from 3 large cities, all vowing to try to block Chick-fil-A from bringing more of their restaurants into their cities. Mayor Thomas M. Menino of Boston has sworn that the franchise will have to fight city hall to bring its fast-food empire to Boston. By sheer coincidence, the Atlanta-based chain is hoping to open a Chick-fil-A in a popular tourist spot near the Freedom Trail in Boston — a rather ironic choice. Mayor Menino stated, “Boston is an open city that’s at the forefront of inclusion, that’s our Freedom Trail. We’re not going to have a company, Chick-fil-A or whatever the hell the name is, on our Freedom Trail.” Wow, so much for freedom in Boston.
Mayor Rahm Emanuel, of Chicago, also chimed in his distaste for Chick-fil-A. The head of the nation’s third-largest city hopes to hit the fast food chain where it hurts most — its pocketbook — by vowing to block its plans to build a new restaurant in his hometown. Again, so much for freedom in the WindyCity!
Not to be outdone, Mayor Edwin Lee of San Francisco also joined the chorus opposing Chick-fil-A with a tweet saying: “Closest Chick-fil-A to San Francisco is 40 miles away and I strongly recommend that they not try to come any closer.”
My friends who love this country because of the freedoms we hold dear like: freedom of speech, freedom of assembly, or freedom of religion, which are now under assault when an owner of a business is vilified for his stance on his religious belief of same sex marriage should concern all of us as to where our country is heading to. Growing up during WWII, the Korean Conflict, Viet Nam and the assault on our homeland in 9/11 has not worried me as much as the now assaults on our Constitutional freedoms by our own fellow citizens and left wing politicians.
Sadden by the unrelenting verbal assaults towards Chick-fil-A my spirits were lifted when former Arkansas Gov. Mike Huckabee created a counter boycott launched by gay marriage activists on Wednesday, Aug. 1. According to Mr. Huckabee, more than 630,000 supporters signed up to celebrate Chick-fil-A Appreciation Day on his Facebook page for the event. Mr. Huckabee further stated, “Let’s affirm a business that operates on Christian principles and whose executives are willing to take a stand for the Godly values we espouse by simply showing up and eating at Chick-fil-A. Well folks, I, along with my grandkids went to our neighborhood Chick-fil-A and waited almost an hour to get served to show our support for the restaurant as did scores of others throughout our country.
After millions of Americans showed their support for Chick-fil-A gay activists and same sex marriage proponents stepped up their assault on the eatery and Christians by calling them haters, bigots, hicks, rednecks and staging same sex kissing sit ins at Chick-fil-A restaurants. One individual on my Facebook stated that he was going to Chick-fil-A and fondle his gay lover in public.
These gay and same sex proponents should be thankful they don’t live in a Muslim country. Here’s the Islam law on gay behavior: “Kill the one that is doing it and also kill the one that it is being done to. In a pamphlet produced by Al-Fatiha, it estimates that 4,000 homosexuals have been executed in Iran since 1979 and 10 public executions of homosexuals in Afghanistan by the Taliban army.
Throughout my life I’ve met and been friends with gays and lesbians. Though I didn’t approve of their lifestyle I never harmed or insulted them. My theory was “to each his own.” Nor, do I recall other Hispanics in my community rebuking or bullying them. Sadly, all with the exception of one gay friend are all dead! “Were they murdered James?” Some might ask. No, they died of AIDS!
According to a statement by the Kaiser Foundation it revealed that in San Francisco, CA there have been 19,341 reported AIDS deaths as of Dec. 31, 2010. The reported stated that since the AIDS epidemic began in 1981, 1.7 million Americans have been infected with HIV and 641,976 have died of AIDS-related causes. A Kinsey report states that it takes approximately $300,000 to take care of each AIDS victim, so thanks to the promiscuous lifestyle of homosexuals, medical insurance rates have been skyrocketing for all of us.
As for Christians been labeled as haters, homophobes and bigots by gays and same sex marriage proponents let me share some comments made by those in law enforcement.
• Judge John Martaugh, chief magistrate of the New York City Criminal Court has said, “Homosexuals account for half the murders in large cities.”
• Captain William Riddle of the Los Angeles Police says, “30,000 sexually abused children in Los Angeles were victims of homosexuals.”
Final note to gays and same sex marriage proponents: “My friends, we Christians are not your enemies, ya’ll are your own worst enemy!”