Courts and big data

03 September 2013

In a world characterised by the proliferation of technology, society and its constituents, including the courts, find themselves increasingly needing to adapt to new technological innovations so as to not be left behind. In this blog, we will look at examples of big data implementation in the courts and legal sphere, as well as a range of other industries which have already untapped the potential of big data (an ubiquitous phenomenon referring to the huge quantity - 2.5 quintillion bytes - of new data created daily) in generating huge business advantages. However the primary questions concern the extent to which courts - an entity whose origins are based upon deeply entrenched traditions, customs and procedures - have the capacity to implement big data that implies advanced technological innovations in its day to day operations. What challenges would courts face in its implementation, and how we can untap its potential to inspire court innovation?

Big data generated from courts

Courts themselves produce massive amounts of data on a 24/7 basis (e.g. general case data, judgements, docket lists, calendars, etc). In the last couple of years, new data sources have emerged: social media, mobile applications, and text mining technologies, amongst many. Part of this data is kept and processed but most is never stored, let alone acted upon. For most justice systems, the goal of court information systems is to get accurate statistics about workloads, disposition times, sentence rates, appeal and reversal rates, etc. However, our research indicates that existing court IT and organisational tools and mechanisms have limited capacity to extract valuable knowledge and insights from massive data sets.

This is a stark contrast to other industries that have capitalized from big data technology to maximise their business value and derive strategic insights. For example, the finance industry has developed a range of data mining tools to attract greater business benefits, including KPMG whose recent acquisition of WiseWindow enhanced their capacity to measure business results using social media in a profound way. Similarly, insurance companies have utilised big data platforms such as IBM's solutions to overcome common problems such as insurance fraud and improving customer retention. In healthcare, medical researchers have been able to better understand health issues, earlier detect and find solutions to illnesses, and police have benefited from big data and its capacity to "make connections and detect patterns to prevent and solve crime".

Within the realm of courts, there is currently a lot of speculation about the potential of big data in courts: perhaps it can overcome common procedural issues such as delays, backlogs, costs, and unequal access to justice. Experts have also identified its potential, such as in court consolidation and case management: "What if we could tap into the massive amount of data that is entered and stored in a court's case management system, and other data systems like states' criminal justice repositories?" For example, court data could be cross-referenced against public databases that provide information from outside the justice system including demographics and travel time to get to and from courts, thus revealing interesting insights concerning access to justice standards. The same article also highlighted how some progress has been made on this front where US judges have reportedly been experimenting with using information in modern automated case management systems to measure case complexity (potential factors include the number and seriousness of criminal charges, number of defendants, criminal history, number of exhibits and witnesses, etc), consequently altering assessments and assignment of cases, which are adjusted real time. In what other ways can courts use this data to deliver better and more accessible justice to those who need it?

Big data in the legal sphere

Delving into the legal sphere generally, we can see that lawyers have derived benefits from the implementation of big data. This can create both a synergy with the courts but also introduce some issues that cause the courts to resist against its implementation. Law firms benefit from routinely keeping and storing enormous amounts of data, which is shared internally to assist with case preparation and management. One striking example of big data innovation in the legal sphere is encapsulated in the form of Juristat, a US big data product developed by lawyers, which "transforms raw court records into actionable analytics allowing litigators to optimize litigation and marketing strategies". It collects data from a number of sources (court records, demographics, social media, and public databases) and applies big data analytics to provide unique litigation intelligence (e.g. probability of judge granting a specific motion, jury verdicts cross-referenced with flu outbreaks, success rates of opposing counsel on particular area of law), which is supposedly "helping lawyers predict the future" or to "win your next court case".

For some, the use of big data in this way could be perceived as an initiative that benefits users of justice and is a sign of progress in the legal domain. But perhaps this is another reason why courts are allegedly "really reticent to let go of their control over data, and ... not really doing a very good job of hosting it, cleaning it, or making it available". Is it better that the courts hold a monopoly of information so as to prevent the use of big data for predictive/tactical purposes? Does such use of big data undermine court procedures?

Privacy issues

Big data also attracts privacy issues, particularly in relation to the admissibility of certain data (GPS devices, phone site towers) as evidence in courts. Recently, a US Court held (2-1) that the government could compel a phone company to turn over 60 days worth of cell phone location data without a warrant or establishing a probable cause, on the basis that this data was an unprotected "business record". What privacy implications does this have for future court proceedings? Similarly, the police are known to regularly mine social media to gather information they need during investigations to solve crimes, particularly in relation to gang activities. One concern is that since big data is a relatively new phenomenon, there has been limited, if any, development of legislation or case law that properly appreciates the dynamics of big data. This makes it increasingly difficult to tell exactly where the line can be drawn, especially as technologies and our expectations of privacy rapidly evolve.

Ways forward

One thing that must be considered is whether there is even the need for courts to adapt to the rapidly developing technological climate. Would courts risk falling behind? A recent article by KPMG on big data asserted that: "In revolutionary times like these, missing out on the next game-changing development equals economic suicide. We have seen it with organisations that neglected the emergence of the Internet and we are likely to see it again with the emergence of a data-driven society". We have seen that many industries have already implemented big data in their day to day affairs to derive business advantages, overcome institutional problems, and achieve valuable insights.

Whilst the courts currently lack initiative in utilising big data technology, it is interesting to note that partner institutions, such as the legal and government sector (including the police) have already derived invaluable insights and benefits that can also inadvertently affect how courts operate (in a positive way, as seen through the approach adopted in the US regarding case management; or potentially a negative way, as seen through predicting litigation outcomes). Courts of the future will use smart approaches to analyse big data in order to deliver better and more accessible justice to those who need it. In the upcoming session we invite you to discuss the potential of big data in courts. Particularly, we are interested to talk about:

  • Which are the applications that might radically transform how courts do business?
  • Which new services and products can be developed in addition to big data in courts?
  • Would there be any resistance within courts to provide access to large amounts of data?
  • Could it drastically affect court procedure and outcomes that inevitably benefit how they operate and deliver justice in the future?
  • How to stimulate big data innovations in courts?