|Volume 2: No. 02|
The U.S. has about 800K lawyers, about equal to the number of design engineers. (That's 70% of the world's lawyers. In Japan, the ratio is 1:20.) Although few lawyers are at the $150K level, such salaries will draw 94,000 applicants to law schools this year. Dan Quayle says the result is 18 million new lawsuits per year, at a cost of $300B in legal expenses. [Lawrence Maloney, Design News, 11/4.] AI to aid lawyers really doesn't address the problem -- nor are lawyers willing to pay if AI doesn't increase their incomes. (There is an expert system for screening jurors, and there may be a few others.) Insurance companies might pay, especially for R&D giving one company a competitive advantage.
If you need an expert witness, or would like to be one, or even need to discredit one, get in touch with IDEX. This six- person company maintains dossiers on expert witnesses used by the legal system. They have about 500 subscribers paying $375 to join and $60 per search. Experts earn up to $500 per hour and $2,500 per day, plus expenses. [Brigid McMenamin, Forbes, 10/14.]
Sometimes a handshake or memo of understanding is sufficient, but important matters should be spelled out in contracts. Even then, terms that seem clear to both parties may cause contention. If software is "to perform substantially as described in the documentation," for instance, does that mean software must conform to specs or that user manuals will be written to match software? Dennis S. Deutsch recommends that the following terms be defined if they are used in a contract: trade secret, confidential information, time (e.g., zone), holidays, outsourcing, platform, software, release, upgrade, modification, training, maintenance, support, telephone support, documentation, acceptance, installation, and enhancement. If you guarantee your software, for instance, are you liable for defects in commercial packages you provide? [Computerworld, 11/25.] (The inherent ambiguity of English makes expert systems for legal reasoning difficult -- and important.)
An important ruling in the Minnesota Court of Appeals this year established that electronic data is (are?) property under the laws of common business insurance. Lost computer tapes are covered by property insurance for more than the value of the media. [Mitch Betts and Kim S. Nash, CW, 12/23.] Expect higher corporate insurance rates, and be prepared to prove the value of your own software if you entrust it to a third party.
A task force within the Netherlands Society for Computers and Law is studying the legal status of decision support systems. To contribute, contact mr ir W.J. van Hattum, Study Committee Artificial Intelligence, Netherlands Society for Computers and Law, c/o A. Beker c.s. Advocaten, P.O. Box 23511, NL - 3001 KM ROTTERDAM, The Netherlands; Fax +31.10.404 6235, Tel. +31.10.414 5411. [Herman J. Woltring (email@example.com), AIL-L, 12/2.]
Donald Berman (firstname.lastname@example.org) says that the details of a specific case will weigh very strongly in a court decision. In particular, a judge will weigh the benefits to society of encouraging or discouraging particular uses of expert systems. If an expert-system user is to be treated as a learned intermediary, the system may have to provide an audit trail or justification as part of each recommendation. Then again, the analogy to a reference book or how-to book may be strong enough to limit liability. It won't hurt to add disclaimers of liability to your product literature, but it may not help. [AIL-L, 11/25.]
Liability for the advice of expert systems has not been considered by the courts, but there are precedents that might apply. If your decision logic is open for inspection (perhaps documented with flowcharts), you may be able to claim First Amendment protection in the U.S. You then enjoy the same freedom from liability as do lunatic diet books. If you or your customers provide a service, liability may be limited by the "learned intermediary" doctrine. If your expert system is a product, there is typically no limit on propagation of liability up the chain of production and design. (Passing costs up the chain also passes them down to customers, spreading accident costs among those who benefit from the product.) Courts will assume that you intend your system for unsophisticated users unless either the law or your licensing agreements restrict use to trained professionals. Even complex and dangerous medical devices are treated as "lawnmowers" if the class of users is not legally restricted. Supervision of personnel by a physician does not restrict liability due to poor design or a complex interface. [Edward P. Richards III (email@example.com), AIL-L, 11/24.]
One survey found that 39% of responding companies had declined to introduce a product because of liability risks, and 25% had ceased product research. Monsanto, for instance, refused to market a believed-safe substitute for asbestos. [Walter S. Wingo, Design News, 11/4.] Ernie Hall once told me that his robot lawnmower couldn't be commercialized because of liability concerns. (Rightly so, I think.)