Risk Update

Judicial Analytics: Run that Pivot Table and Risk Jail?

Posted Dan Bressler

A few weeks back I suggested an interesting analysis exercise, looking at disqualification activity and attempting some analysis. (Perhaps that will be a 2020 New Year’s Resolution…) Of course, there’s an existing market of third-party providers harvesting and distilling judicial activity, looking for trends. You could see this sort of insight potentially shaping disqualification motion strategy, among other existing applications. So this one caught my eye:  “France Bans Judge Analytics, 5 Years In Prison For Rule Breakers” —

  • “In a startling intervention that seeks to limit the emerging litigation analytics and prediction sector, the French Government has banned the publication of statistical information about judges’ decisions – with a five year prison sentence set as the maximum punishment for anyone who breaks the new law.”
  • “The new law, encoded in Article 33 of the Justice Reform Act, is aimed at preventing anyone – but especially legal tech companies focused on litigation prediction and analytics – from publicly revealing the pattern of judges’ behaviour in relation to court decisions.”
  • A key passage of the new law states: ‘The identity data of magistrates and members of the judiciary cannot be reused with the purpose or effect of evaluating, analysing, comparing or predicting their actual or alleged professional practices.'”
  • “However, judges in France had not reckoned on NLP and machine learning companies taking the public data and using it to model how certain judges behave in relation to particular types of legal matter or argument, or how they compare to other judges.”
  • “Unlike in the US and the UK, where judges appear to have accepted the fait accompli of legal AI companies analysing their decisions in extreme detail and then creating models as to how they may behave in the future, French judges have decided to stamp it out.”
  • “Moreover, it’s unclear if a law firm, if asked to by a client, could not manually, or using an NLP system, collect data on a judge’s behaviour over many previous cases and create a statistical model for use by that client, as long as they didn’t then publish this to any third party. That said, it’s not clear this would be OK either. And with five years in prison hanging over your head, would anyone want to take the risk?”

Shades of Minority Report? For more on this, see the full story and the lively commentary posted by a variety of readers.