• March 4, 2016
Photograph by Maura Teague

Photograph by Maura Teague

Most of us use Facebook, Google, Twitter, LinkedIn, etc., and pay nothing for these “software platforms” (or whatever we’re supposed to call them) and it has become a cliché to point out, “if you’re not paying for the product, you are the product.”

To put it another way, these businesses have to make money, of course. That’s what they’re all about — their raison d’être. So if they’re giving their platforms away to you, it’s because they’re harvesting your data (or “your attention,” or “your eyeballs,” some say) and selling it to others.

I assume this comes as no revelation to most of you.

I do enjoy the twist, however, when entrepreneurial “info-peddlers” harvest information from users for free to sell it back to them or, even better, to their business competitors.

I encountered a recent example in the litigator context. A company called ALM asked me for anonymous comments about a federal judge before whom I had a case. My comments, apparently, would be dumped into a database that litigators could subscribe to (i.e., that ALM would turn around and try to sell to me and other litigators).

Without irony, I expect, ALM claims the selfless goal of “improv[ing] third branch transparency” by applying a completely opaque coating of untraceable, unverifiable, anonymous comments. Nothing could be more transparent, right?

To be fair, for many years the Almanac for the Federal Judiciary (AFJ) has peddled this same scuttlebutt. ALM’s play is nothing new and not necessarily related to our 21st Century data economy.

In fact, I found the AFJ somewhat useful as a litigator n00b. Certainly if a judge were at one extreme or another (“a true scholar,” say, or “a sadist”), this would be discernible from the comments. Too often, though, the comments would be completely inconsistent and, therefore, facially useless (“sloppy thinker,” “callous,” “thoughtful and insightful,” “follows the rules and treats lawyers well”…).

But consider this: the smartest, most in-the-know lawyers (and, far more importantly, the large law firms who can collect much more information about courts and judges) have something of considerable value — insider information and insight into courts and judges. Why would they want to give that to ALM or AFJ? They would not and they do not. On the other hand, pikers, charlatans, axe-grinders or other partisans (whether in favor of a judge or the opposite) might want to affect judges’ reputations, without any accountability at all. Garbage in, garbage out, and I feel sorry for the lawyers paying for the garbage.

So, yeah. I am not filling out the “Judicial Intelligence Platform Survey.” It is far from clear to me whether my anecdotal experience of any particular judge has much value to anyone, but, if it does, I think I will hang on to it for myself, my known and trusted colleagues, and my clients.

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