If a fire breaks out, a Fitbit could be the key piece of evidence to determine a witness’ alibi.
By checking a witness’ heartrate at the alleged moment of the incident, investigators can determine the credibility of testimony. A flat heartrate might indicate that a fire took place long after a witness says it did, while an accelerated heartrate could verify testimony.
Panelists Ron Hedges (Dentons US), Sarah Gold (Gold Law Firm) and Maura Grossman (University of Waterloo) discussed this and several examples of how household technology has transformed the practice of law on the recent CLE Webinar, “New Technologies: How Attorneys & Their Clients Might Evaluate New Technologies To Decide Whether To Adopt.”
Gold explained the new technologies that have changed law and lives including artificial intelligence, biometric information (global entry when you come through an airport; retinal scanners), geolocation information (ordering food remotely at your nearest location), the Internet of Things (IoT) (devices that you can talk to including Alexa, even your wifi-enabled Fridge or control via your phone), and virtual meetings.
Hodges noted the many sources of information in litigation now include Fitbits, cell phones, Snapchat, Amazon Echo, Nest Doorbell and video camera system, swipe cards for entry and exit on timesheets.
“Echo is particularly interesting for us because we may be talking in a privileged communication and it turns out something is recording what we are saying, which means there may not be confidentiality or a breach of our confidentiality,” said Hodges.
New York’s “Stop Hacks and Improve Electronic Data Security” (SHIELD) Act, which took effect on March 21, requires businesses to implement safeguards for the “private information” of New York residents and broadens New York’s security breach notification requirements. The Attorney General can sue for data breaches of failure to comply with cybersecurity requirements.
Questions to ask
When it comes to vendors, according to Hodges, attorneys should familiarize themselves with safeguards, security precautions and vendor’s reputations. They should ask about breaches of security, backups and retrieval of information.
Grossman discussed seven questions to ask a vendor when vetting a new technology.
What do you mean when you say your software uses artificial intelligence or machine learning? Make sure you understand the technology and can explain it. How is your data being used? The vendor should be able to explain it at a sixth-grade level. You need to press, advised Grossman. Grossman noted that software gets better over time with more data. That is very important for you to know especially if it’s your client’s data.
How much will I have to clean or reformat my data for it to be used by your software? It is not unusual for data to change format or be cleaned up before it can go in one of the tools. That will add time and cost to you.
What amount of data and training do we need to use your software effectively? Lots of new technologies don’t just work “out of the box” perfectly. Often they need some degree of training and a certain amount of data.
What algorithms or assumptions does your software rely on? Grossman noted that facial recognition technology can be less accurate among specific populations.
What resources will be needed to implement the software successfully? Grossman advised that it may require new staff or training additional users. Often, systems may not be compatible with each other.
What tools do we need to interpret the output of your software and are they included or extra? Add-ons may be needed to operate the software as you wish.
How has your tool been validated for its intended purpose and how reliable is it? Grossman said you don’t want to be the guinea pig or “beta tester” unless you are getting it for free. Ask questions about how long the vendor has been in business and how often products are updated. There’s a difference between validity (if the tool does what it is supposed to do) and reliability (consistency of how well the tool works).
Grossman advised attendees not to rely on vendor demos solely; instead, ask to “take a test drive.” If you are a serious customer, most vendors worth their salt will let you do a “proof of concept” for free. If possible, she suggested, try it out on your own data and in your own system, unless it’s cloud-based.
She suggested lawyers find out how much integration work will be required to work with your current system. Getting people to change their habits is hard, she cautioned. If you like the product but aren’t completely sure, do a shorter license even if it costs more. It’s better to be able to get out sooner even if you have to pay a little more to renew.
“Just because it’s new doesn’t necessarily mean it’s something you can use,” said Gold. “You shouldn’t have to necessarily change your practice fully in order to be able to embrace the software. It should meet you where you are.”
Grossman agreed that one technology might work well for one lawyer, but not another, particularly lawyers in different practice areas.
Hodges noted that with fewer lawyers working in physical offices during the pandemic that there might be a premium for new technologies. Grossman said that while lawyers are typically more conservative and slower to adapt, COVID-19 has “forced lawyers into this world whether they like it or not.”
She foresees permanent changes in how lawyers practice. Gold observed that for some lawyers remote operations aren’t working as well as they should be. Such lawyers should look for better versions of their current technologies, be it hardware, software or microphones.
“The market is there,” said Gold. “It’s just a matter of finding the right vendor to do what you want it to do.”