Big data has had a profound impact on the field of law. Some of the changes data has created have been overwhelmingly positive. However, Caryn Devins and two of her colleagues at Cornell point out that other changes have been more ambiguous. They warn that big data is not as objective as advocates always claim. It has created some significant risks when applied to legal context.
This is especially true when it comes to establishing the probative value of evidence in court. Legal professionals have an obligation to establish the relevance, objectivity and accuracy of any data that will be submitted in court. They must also tread carefully when using data extraction tools to come for evidence that might be of value to them.
RightLawyers.com told us that there are some things that legal professionals must keep in mind while using big data.
Using big data to conduct fishing expeditions can be problematic in many ways
One of the most common ways that attorneys use big data is by reviewing data sets to find valuable information for their cases. They often take this approach before they outline a legal theory for their case.
The problem is that this approach often leads to confirmation bias. Iafor warns it also may create a lot of false positives.
A better approach is to establish an unbiased hypothesis and trawl data archives for information that may be pertinent. This approach will give professionals better direction as they structure their search.
Verifying the bias in data
If you remember watching Law and Order: Major Case, you may have seen the episode where a forensic examiner claims to find DNA of a suspect. However, it was later shown that the suspect was not guilty. the forensic examiner says “I can find the evidence, but I can’t always show how it got there.”
This parallels with the challenges that legal professionals face while reviewing big data. Data itself is a seemingly concrete forensic footprint. However, that does not mean that it is free from bias. You can’t assume that data is entirely dependable without considering a possible fallacies of its sources.
Evaluating the possible sources of error is very important. You must consider the potential for bias when data originates from open source platforms or public computer networks. You may be unable to identify its reliability, which could mean a judge will rule that it is inadmissible.
In these cases, legal professionals must cite all possible sources for bias and prove that they are unlikely to influence the reliability of the data. Judges are still trying to understand the rules of admissibility with big data, since it is a new concept in a centuries old profession. Legal professionals must still make convincing arguments.
Considering the possibility of corruption
Data corruption is a major concern. There are a number of ways that it could potentially be altered to influence the outcome of a trail. One possibility is that data could be compromised by hackers. It could also be internally modified, especially if it was subpoenaed and provided by the defendant. A defendant could also potentially delete data before a subpoena was was served. This would be the 2018 version of Enron shredding incriminating papers. Possible litigators providing the data could also taint it.
You need to pay close attention to the sources of data. If you have a reason to believe data has been tainted in any way, then you must try to authenticate it. Otherwise, it could be thrown out by the judge or disputed in court.
Big Data is Having a Massive Impact on the Legal Profession
The legal profession is undergoing a number of changes. It is extremely valuable in court, but is not free of bias. You will need to pay close attention to the risks it creates and respond to them carefully.