Dear Friends in the Study of Artificial Intelligence and Judicial Proof:
The April 30 symposium on artificial intelligence and judicial proof is
approaching. See http://www.cardozo.yu.edu/cardlrev &
http://www.tiac.net/users/tillers (about the middle of the page).
Several panelists felt that viva voce discussion at the symposium would
be both more vivacious and focused if the participants in the symposium
were given a "test case" in advance that they could use on April 30 to
discuss the merits and and demerits of alternative possible procedures
for assessing evidence. I have tried to construct such a hypothetical case.
The hypothetical situation described further below is the kind of case
or problem that I tend to think about when I ponder the structure and
properties of evidentiary processes associated with litigation. Please
see whether you think the case I describe below might serve as a vehicle
for discussion of the merits and demerits of different ways of analyzing
or handling evidentiary and inferential processes associated with
litigation and, in particular, for discussion of "artificial
intelligence and judicial proof." I will not add any editorial comments
here to my hypothetical case; i.e., I will not add any comments here
that explain why the below problem has the properties that I think it
does. I have already spoken on other occasions, and at some length,
about the properties of the types of problems that interest me. If you
feel that my hypothetical case is an inappropriate vehicle for
discussion, please do not hesitate to say so. But if you do say so, I
think it would help me and perhaps other people better understand your
position & your approach if you were to explain _why_ the hypothetical
case I have constructed is inapt. (If you wish, you can make your
coments about the case at the symposium itself rather than in advance.
But if the case I pose is completely wanting, you might consider posing
a case or problem yourself and distributing it to the participants in
the symposium in advance.)
The version of the hypothetical case found below has been put together
rather quickly (in about 30 minutes!). So if the problem is not as
well-crafted as it might be, I beg your forgiveness in advance.
(However, please also bear in mind that much of the vagueness of the
case described below is entirely _deliberate_.)
Sincerely yours,
Peter Tillers
Professor of Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, New York 10003
U.S.A.
(212) 790-0334 (office)
FAX (212) 790-0205, (212) 790-0301
tillers@ymail.yu.edu & tillers@tiac.net & ptillers@earthlink.net
P.S. I think the hypothetical case found below _is_ a problem in (of)
"judicial proof." My opinion on this point reflects or presupposes
various other opinions or beliefs, such as the belief that (i)
investigation is part of proof, (ii) legal rules are an ingredient of
forensic investigation & proof, (iii) investigation and proof involve
the making of decisions, (iv) etc. If you think I have thrown too many
maters into the pot, please feel free to say so!
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&
Grist for Your Preferred Mode of Analysis:
A Hypothetical Case
Your name is Able Attorney. Your nickname is Slick. You are a lawyer.
You work in Middletown, Middle State, U.S.A. The date is October 5,
1999. The time is 8:45 a.m. You have just arrived in your office. Just
then Dale, your legal secretary, ushers Peter Plaintiff into your
office. Dale explains that Peter has asked to see you. You are
irritated; you haven't had a chance to drink your coffee, check your
phone for messages, or consider whether you even want to see Peter.
Nonetheless, you say, "I'm very glad to meet you, Peter. You don't mind
if I call you Peter, do you? How can I help you?" Peter tells you that
he wants to explore the possibility of bringing a personal injury action
against the owner of a "convenience" store. You ask Peter for details.
Peter tells you that he was shot in the head by a clerk at a "Happy
Valley" store in Madison City, in Middle State, a few months ago. He
explains that he thinks that the clerk who shot him was either
negligent, reckless, or malevolent. Peter adds, "I personally lean
toward the malevolence hypothesis. I know that clerk. He's a vicious
s.o.b. His name is Harry. His nickname is Dirt. And that's no accident."
You ask Peter for further details. He tells you that he went to the
Happy Valley store on the night of April 1, 1999. He says that he
remembers entering the store at 10:45 p.m. He also vividly remembers
seeing a blinding flash immediately after entering the store. "The next
thing I remember," Peter says, "is coming back to consciousness just as
two white-coated men were carrying me out of the convenience store on a stretcher."
Peter adds, "They took me to a hospital -- General Hospital -- where I
stayed for about three months. When I got to the hospital that night,
the doctors told me I had been shot in the head. They took me right into
surgery. Later I had two more operations. I'll probably have several
more. I hope you'll keep this in mind. I don't talk or think as well as
I once did."
You ask Peter, "What makes you think that the clerk at that store --
Harry, was it? -- what makes you think that Harry was the guy who shot
you? Did you see him shoot you?"
Peter answers, "No, I didn't. But the local police told me that they
suspect that Harry did the shooting."
You ask, "Did they interview Harry? Did he confess?"
Peter says, "I don't know for sure but I don't think so. The local
newspaper reported that Harry disappeared after the shooting. I guess he fled."
You ask, "Why would he have shot you?"
Peter states, "I dunno. My guess is that he thought I was a robber and
that he plugged me when I walked through the door that night."
You say, "That's malicious?"
Peter states, "Yeah, I think it was. Harry wasn't the kind of person who
worried a lot about other people's welfare. He was kind of paranoid. He
probably shot me because I wasn't walking right or because I was
squinting my eyes. Who knows? But there's one thing I know for sure:
Harry was a bad dude. He was bound to shoot somebody some day. Happy
Valley Company had no business hiring him."
You say, "What do you want me to do?"
Peter states, "Well, I'm not sure. That's why I came to you. What do
_you_ think we should do? Do you think we should sue Harry? Or maybe
someone else? Happy Valley Company?"
You say, "Whoa! I think we're getting ahead of ourselves. We've got to
figure out whether you've got a case. And I've got to figure out whether
I want to take your case."
You think to yourself, "I wonder if I can trust this guy?"
You say, "Look. There are any number of possibilities and problems here.
My first problem is that you can't tell me everything I need to know.
For example, I don't have enough information about why Harry shot you.
My second problem is that I don't know enough about you or what you're
after. And there are other things I've got to think about."
You think to yourself, "Well, what should I do? Should I spend another
30 minutes talking to this guy? Should I try to find Harry? Maybe I
should slap a complaint together and take a deposition? But whose
deposition? Heck, I don't even know the name or title of Peter's boss,
and I don't know much about Happy Valley either. What's my theory?
Perhaps respondeat superior {a legal doctrine making a "master" liable
for certain acts of a "servant"}. But did Harry commit a crime? Or did
_Peter_ commit a crime?"
You then say, "Look, Peter. I'm not yet sure you've got a good case.
I'll tell you what. You give me $1000 to look into the case a bit
further. If I decide that your case isn't worth pursuing, I keep the
$1000. If I decide that your case _is_ worth pursuing, I'll still keep
the $1000. But if I do go ahead with your case and get a recovery for
you, the $1000 will come out of my pocket. I work on a contingent fee
basis. If I get a judgment or settlement for my client, I get 40%. You
get 60%. The $1000 will come out of my 40%. But you pay courts costs as
we go along. What do you say?"
Peter falls silent for about 20 seconds and then states, "O.k. I'll give
you a check. But look, just one thing: I'm a bit steamed at Happy
Valley. It shouldn't have hired Harry. Shouldn't we make trouble for
Happy Valley?"
You say, "Well, if the case goes forward, we will. But look, Peter, your
first concern is money. Don't worry about this revenge or just deserts stuff."
Peter replies, "Well, I'd just feel a lot better if Harry and Happy
Valley were made to feel my pain."
****
Some questions for discussion & debate: What sort of problem does
Attorney a/k/a Slick face? Does Slick's job or task involve evidence?
What evidence does Slick have? What is it worth? What should he do with
it? What evidence should he look for? What should Slick do with the
case? What should Slick do next? Does Peter know what he wants? Is Peter
telling the truth? The whole truth? Does it matter? Where is Harry?
Should Slick's next step focus on Harry? On Peter? On Happy Valley? Can
"artificial intelligence" help Slick? How?
This archive was generated by hypermail 2b29 : Mon Mar 13 2000 - 07:54:11 PST