This week I’m attending the annual extravaganza put on by Clio, the cloud based practice management provider. ClioCon never disappoints. In addition to offering sessions devoted to its products, it also provides presentations that make you think about broader issues that impact the profession. One of these session was the Tuesday Keynote by Nita Farahany. Farahany is the author of The Battle for Your Brain: Defending The Right to Think Freely in the Age of Neurotechnology.
The thrust of Farahany’s talk was that technology can detect brain activity that reveal things like your mood, what you find appealing and not, and your memories. All of these can result in the creation of data. All that data is the world of GenAI can be used for tremendous good in the treatment of things like mental illness, epilepsy, and other neurological diseases. It can be used to detect fatigue in workers or the attention of students. But unchecked, it can be used for a lot of bad as well.
While I had thought this kind of detection would require a neuro sensor implanted in the brain (like that promoted by Elon Musk’s company, Neuralink) or cumbersome and expensive headset devices, this is now incorrect according to Farahany. She showed us several wearable devices that can or soon will be able to detect brain neuron activity in ways like that of more complex devices. These wearable devices won’t have to be clunky. They won’t even need to be uncomfortable headsets. Instead, they will be things like watches or ear pods. (According to Farahany, the ear channel is pretty conducive to tacking brain activity).
There is much to think about in the legal and regulatory space.
So, as these devices become more prevalent and convenient to wear and use, Farahany believes we need to understand the risks and benefits of using this kind of data. She says we need to think about our fundamental rights as our thoughts become no longer completely private. There is much to think about in the legal and regulatory space.
But my mind focused on what all this means for litigators. Farahany gave an example of how James Cameron used neurotech to better market his film, Avatar. Avatar was a tremendously popular movie. One of the reasons for that popularity was Cameron’s decision to engage a neurotech company to determine what trailers would be the most successful in convincing people to go see the movie in the first place. The company showed various trailers with different characteristics to focus groups. The brain activity of those in the focus groups was scanned to determine which trailer was the most appealing and would be most likely to result in someone actually going to see it.
The result was an improved, more impactful trailer that resonated and improved attendance. Another example she gave was that of a group seeing charitable contributions for a specific cause. The marketing of the group was floundering and not very productive. Until the group engaged a neurotech company to show several different approaches to a group and then determine from brain wave activity what approach would be likely be successful and lead to donations. The result was an over 200% increase in donations.
Both of these are examples of using neurotech to create stories that would be more likely to persuade or, to use a more charged word, manipulate people. And that’s what litigators and trial lawyers do. They create stories, images, and words to persuade people—jurors, clients, and even adversaries of the positions they advance. Up until recently, litigators basically used their experience and gut instincts to create the stories they thought would resonate. Sometimes, they would use focus groups to check these stories’ persuasive strengths. But even that is flawed since you can’t tell what people are thinking and what they might actually do if they were the decision-makers.
What if you could use neurotic technology to better determine what types of people would be the most predisposed to decide in your client’s favor?
But what if we could do what James Cameron did? Measure brain activity to really see what appeals to people. What stories and arguments would be impactful and make a difference in decisions? What if you could use neurotic technology to better determine what types of people would be the most predisposed to decide in your client’s favor? That data would be invaluable.
Farahany talked about this possibility in the question and answer portion of her talk. She admitted we are indeed a long way from conducting this kind of analysis of jurors who actually sit in a jury box. I don’t think we will ever get to this point or even if we should.
But we can use neurotechnology with focus groups to better understand what will work with actual jurors. We can get a better idea of what the results of a dispute might even be. As I have written before, technology can be used to reduce conflicts because it can create so much determinative information. Knowing what people are thinking could be an advance in knowledge.
But the issue is, should we? Farahany raised the specter of unrestrained neurotechnology to let others see into our most private space, our minds. Something about that seems wrong somehow, even for me as a former litigator.
Farahany was optimistic that government and regulations could be used to protect our brains. But I’m not so sure. It’s a scary world sometimes.