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 [EMAIL PROTECTED] & [EMAIL PROTECTED] & [EMAIL PROTECTED] 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? �
