Science for Lawyers and Litigants

Science is designed to answer questions which are falsifiable. It is a system based on "defining practices ... including open debate, peer review, and double-blind methods, ... explicitly designed to circumvent the errors and sins to which scientists, being human, are vulnerable."Pinker, New Republic, "Science is not the enemy."

Using the scientific method, a scientist asks a specific question. To answer the question, the scientist

Cicero attacking Catalina in the Senate, 63 B.C.
Image credit, Wikipedia.

devises an experiment to answer it. By running the experiment, she gathers data and applies it to the initial question. Rather than producing a discrete answer to the question, the scientist presents her findings in papers, preferably written in a way that seeks to disprove her own questions. Other scientists formally and informally review the paper and attempt to replicate the experiment with the goal of shooting it down. Only the best papers survive this process and can then be used to make important decisions about the world around us.

Lawsuits can seem strikingly analogous. The litigants ask seemingly falsifiable questions. They go through a period of uncovering information. They draw conclusions from that information. They submit those conclusions to a neutral party — the judge — for evaluation. That evaluation is further reviewed by other neutrals — courts of appeal. And only the best initial complaints survive this process.

But the big differences are not revealed by this comparison:

• The initial questions, though falsifiable, are usually fairly vague and are bound up by emotion, rhetoric, and a myriad of sub-issues.
• The discovery of information is rarely conducted in the form of a well-reasoned experiment designed to falsify the initial question.
• Conclusions are drawn from the information and presented to the courts as fact, rather than having those conclusions evaluated in some peer-review related process.
• The neutral evaluator doesn't usually get involved until well after the fight begins. And the adversarial process ensures that her decision is based on the preconceived conclusions of the parties rather than an independent analysis.

Additionally, the legal system is burdened by reductions in budgets, a burgeoning docket, and increasing legal costs. Certain modernization techniques are poised to alleviate these issues, but implementation is an expensive barrier; I don't see public will sufficient to properly fund these measures. My question is: how can the application of the scientific method help litigants and the legal system?

To answer this, I wonder why not model legal problems with computers? Many legal problems can and should be modeled by computers from which predictive answers can guide the parties and the courts. Ashley, Jurimetrics, "Computer Models for Legal Prediction." While not all legal issues can be decided by models, science (and hence if properly programmed, computers) may be capable of answering many legal questions; including, possibly, purely moral questions, "by making an intelligent analysis of the causes and conditions of human well-being." Harris, TED Talks, "Science can answer moral questions."

Now, getting a computer program to solve your legal problems is a long way off. But there are certain aspects of the differences between the scientific method and the legal method which can inform litigant's positions. Consequently, informed litigants are more likely to unburden the legal system. For instance:

1. Lawyers could present an exhaustive list of all falsifiable issues involved in proving his case — not merely provable allegations.
2. Lawyers could present these issues in the context of a specific experiment designed to falsify those issues, not to prove them.
3. Each parties' set of issues and experiments could be presented to a neutral evaluator prior to the institution of a lawsuit.
4. The lawyer, parties, and neutrals could then present refined analyses to a judge or jury who would be much less likely to be persuaded by emotion or rhetoric.

Now, good lawyers probably already embrace the idea of testing their claims up front. The difference is, they do it in private where they can manipulate their arguments before they are presented to the court. So, this system is radically different from the way cases are heard — entrenched parties battle out every detail. But, these steps alone could reduce frivolous cases and frivolous defenses, improving the legal system for everyone.

On the topic of applying science to the humanities, and in particular politics, Steven Pinker writes:

The application of science to politics not only enriches our stock of ideas, but also offers the means to ascertain which of them are likely to be correct. Political debates have traditionally been deliberated through case studies, rhetoric, and what software engineers call HiPPO (highest-paid person’s opinion). Not surprisingly, the controversies have careened without resolution. Do democracies fight each other? What about trading partners? Do neighboring ethnic groups inevitably play out ancient hatreds in bloody conflict? Do peacekeeping forces really keep the peace? Do terrorist organizations get what they want? How about Gandhian nonviolent movements? Are post-conflict reconciliation rituals effective at preventing the renewal of conflict? 

History nerds can adduce examples that support either answer, but that does not mean the questions are irresolvable. Political events are buffeted by many forces, so it’s possible that a given force is potent in general but submerged in a particular instance. With the advent of data science—the analysis of large, open-access data sets of numbers or text—signals can be extracted from the noise and debates in history and political science resolved more objectively. As best we can tell at present, the answers to the questions listed above are (on average, and all things being equal) no, no, no, yes, no, yes, and yes.

Similarly, the application of science to the law offers a means to ascertain which ideas are correct and which flow from emotion and rhetoric. Science is a most under-utilized tool in many aspects of our lives and can inform most (if not all) decisions in our lives.

Your,

Bear