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UWT Innovate Law Challenge

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Welcome UWT students to the Innovate Law Challenge. This post follows my presentation in Professor Hampson’s classes, American Legal System and Law in Society. This post is a forum for the students in your classes to pitch ideas on the following question:

How Can the Legal Industry Improve the Delivery of Legal Services in the US?

Together we are exploring ideas on everything from how lawyers and law firms operate to creating greater access to justice. What kinds of technologies (electronic or otherwise) should be created or leveraged? How can we change legal education to be more valuable to students, employers, and clients? Should non-lawyers be able to offer legal advice? All thoughts and ideas are welcome and teams of 2-3 students are encouraged.

Post the answer(s) for your team in the comments section below with the Twitter handles of the members.  The team with the most innovative idea will win $50 Starbucks gift-cards for each member and a round of applause.  The winner of the challenge will be tweeted @FutureofLaw, so be sure to follow my feed.  The contest will be open until February 28, 2015.  The winner will be announced on Friday, March 6th.

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10 Comments

Bryce LaBonte

1. Identify an issue: Prosecuting/ Defense attorney’s code of ethics
•http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_8_special_responsibilities_of_a_prosecutor.html

2. Addressing the issue:
• Identify and renew company values
• Implement ethics into the mission/ vision statements
• Revision of employees work
i. Keep data of the number of charged defendants
ii. Analyze the type of cases the individual choses
iii. Check for patterns
• Client- Attorney Relationship
i. Are their opinions being taken into consideration by the attorney?
• Making attorneys/ firms legally accountable for misleading or false statements in court filings and verbal arguments.
• Professional judgment
i. Conflict of interest
ii. Acquiring a financial interest
iii. Business agreements with the client
• Confidentiality
i. Avoid using the clients confidence or secret to his personal advantage
ii. Must give full disclosure – discretion/ misconduct

3. Innovative suggestion:
• Incorporate a superior/ supervisor more into an attorneys work. Often times, an attorney is very independent over their case load and which they choose to pursue or not to pursue. If there is another set of eyes analyzing their decisions and implementations of the law then they may be less likely to violate the code of ethics.
• Have more than one person assigned to the case and mix up the partnership to avoid personal relationships between the two. For instance, only one attorney may be present but have a lawyer review their decisions before implementing any charges or verdicts.

Reply
Brooke Allen

ABSTRACT:
Prosecutorial discretion can be potentially a huge issue in the legal justice system. Prosecutors have an enormous amount of power and privilege versus defense attorneys, defendants, and even the jury. How is it fair that prosecutors but not defense attorneys are allowed to talk with the jury, and point them in the direction of the decision they want? It is unfair to the jury to be led on by side, while the other side is kept in the dark and they can’t do anything. This problem can potentially “fixed” if some type of guidelines and monitoring is done to prevent the negative outcomes from this amount of power. I’ve recently read multiple scholarly articles about ways to try to minimize the amount of negative outcomes of prosecutorial discretion, and many suggested a strict, mandated, monitored protocol for prosecutors to follow on a daily basis.

There are numerous things in society that could become better if they were simply monitored correctly and there were strict guidelines that came with it. There are usually check and balance procedures that come with virtually every area of government. If its not a specific check and balance system, there should at least be some type of process that prosecutors go through that would help monitor their decision making and prosecuting behavior. I learned that the Brady requirement meant that prosecutors are supposed to share exculpatory evidence to limit discretion, as well as a couple other prohibitions prosecutors are supposed to follow. However, in the article Arbitrary Justice: The power of an American Prosecutor by Angela J. Davis, she had mentioned that in a case was lead to capital punishment and the prosecutors in that case held crucial exculpatory evidence that stopped the mans execution, and a year late he had his sentence reversed. “The supreme Court ultimately found the prosecutors engaged in misconduct by failing to turn over exculpatory evidence, but the prosecutors were neither punished nor reprimanded.” Not only did these prosecutors almost allow an innocent man to die, they weren’t even punished for it! Angela Davis also talks about a couple other cases where the same type of thing happened with the prosecutors not getting in any type of trouble. What’s the point of having “regulations” and “mandatory” protocols that have no consequences for those who don’t follow them? This is exactly why I am proposing that there needs to be a regulated, monitored, strict, and disciplined protocol for prosecutors to follow as they do their job.
According to Michael A. Simons, if a strict protocol is put in place, “Federal prosecutors will be inundated with referrals and will feel pressure (from the public, the victim, or the referring agency) to bring charges even if federal involvement is not necessary.” With whatever protocol is put into place, there should be no reason to feel pressured as long as you’re doing your job as a prosecutor. I’m not suggesting by any means that this protocol should be air tight, and no discretion at all is allowed- because I know that it’s a “necessary evil” as Davis would say. I am saying however, that the major discretionary decisions that can negatively affect a defendant need to be prohibited. A great suggestion that Simon noted was, “[C]ongress should place clear limits on the power it gives administrative officials to create criminally- enforceable rules.” This is a great suggestion, as all officials of the system would clearly know their power with no questions that couldn’t be answered in the rules. I believe that there needs to be clearly written and explained limits on power given to all officials throughout all states and courts period. This way, all limits and regulations are all written down in multiple copies so it can’t be easily changed and won’t be easy to jump through the cracks.
Not only do prosecutors get to decide which cases go trial on what charges, but they also reach plea bargains, and “[I]f a defendant is convicted, the prosecutor’s recommendation influences the judge’s sentencing decision, often a great deal.” (Lawrence Baum, American courts Process and policy, 7e, pg. 153) Is it clear yet how much power prosecutors have compared to other officials? It isn’t fair and doesn’t always serve the best interest of the justice system, rather than the prosecutors own reputation and self-consciousness.
Prosecutors like the president, vice president, police officers, judges, and citizens all need some type of permanent, monitored, and regulated protocol for how things are done within their job descriptions. It truly is unfair for prosecutors to have more power over defense attorneys do, because things can then get one sided, prosecutors have many opportunities to do unjust things, and then not even get in trouble for it, so the process continues. Citizens even have regulations and protocols to follow; if someone is a convicted felon 3 times, then they get life. If you don’t pay a parking ticket after so long, it goes into collections, you can’t renew your tabs, and your license could even get suspended. Prosecutors need regulations, guidelines, and a strict and monitored protocol when it comes to their job so justice can be correctly carried out as much and as often as possible without unnecessary and negative outcomes.

Reply
Tristan Sanabria, Tahan Jansz

We propose a website called “seekingcounsel.com”, which gives people the ability to share their legal issues online. The goal will be dual purpose. It will serve as a platform for people who cannot afford attorney fee’s, to be represented. Also, it will provide opportunities for certified attorneys to practice. The website acts as a web based community consisting of lawyers who register on the site by proving legitimate certification and a willingness to represent clients for a discounted fee. This discounted legal work comes with its own set of rewards which are obtained through the site. Lawyers who register on the site will have their own profiles not only detailing their educational background and skills but also backed up with reviews from clients that they represented through the site.

People choose to post their legal issues on the website because it gives them the opportunity to be represented by a certified lawyer at a discounted rate, guaranteeing legal representation to those who can’t afford high attorney fee’s. Many lawyers who are fresh out of law school have huge student debt to pay off and are searching for employment. “Seekingcounsel” gives these young aspiring attorneys a medium to practice, build valuable experience, make some money, make a difference by helping people fight through their legal issues and build up a client base. All this makes participating attorneys more likely to attract the attention of law firms and gain employment.

The site will sustain itself through a nominal fee of $1 for every story posted on the website and income from advertising. The advertising will come from any institution related to the legal industry, from law schools to law firms and everything in between. “Seekingcounsal” will act as a stepping stone between graduating law school and one’s dream job in the legal industry. In the future the site will attract well established attorney’s opting to offer their services with the purpose of making a difference.

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Stefon Lyons and Arely Lopez

An issue lawyers and the general public have is actually knowing the definition of each law and applying them appropriately. Having laws set in place can have some grey areas at times because the actual outcome may vary enormously from case to case. There are many gaps within the legal system that gives repeat offenders, prosecutors, as well as corporations the upper hand. Our solutions is to create a statistical data entry of legal actions that have been brought to the courts and the results of those outcomes via a Case Bank. This database will be extremely user friendly with pinpoint case access that can be narrowed down from specific cities to a state wide spectrum. There will also be access to charts and graphs with data to inform you if the case is worth pursing. Once deciding worthiness of the case, you can access documents to find a lawyer who best fits the case, as well as legal assistance with navigating the site.
The reports will be implemented and operated as an added special department in each courts institution. They will document and file each case into the legal database system that will categorize each case into an algorithm so that anyone can access a specific case within seconds. For example, if a lawyer wanted to glimpse at previous cases that involved two counts of robbery in the first and one count of burglary in the second; they can see a local or nonlocal past rulings, plea bargains, sentencing duration, and everything else associated. This will be beneficial for society and take some of the pressure away from public defenders with the public possessing direct access to court history. It will also be beneficial to political parties for subjects such as campaigning, improving voters guide as well as public education. It will reduce costs of all parties, reduce time for back work completion and give a legal standpoint. The system will be available after an initial membership fee and then a fee per document, depending on information obtained. The membership is limited to only documents and any private request will have additional fees.
There are other sites that have the same insight. However, they are limited to only supreme courts and high level cases. Gaining access to only these types of documents would not benefit the average citizen. They also lack personal and professional institutions that can help navigate. The sites are too complex to navigate for the non legal savvy person.
Case Bank is completely legally and technologically driven and would utilize the word wide web to assist many parties, especially the legal system. It needs the courts to input condition and outcome and the technology will thus produce data so when a person goes to view specific rulings, it can be done with ease.

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Danielle Cole

Danielle Cole
February 26th, 2015
Proposal for Increasing Legal Representation for Refugee Children
The epidemic of violence in Central America has resulted in a flood of refugees at the Southern border of the United States, and many of these refugees are unaccompanied children. Because these children are not facing criminal charges, the courts are under no obligation to ensure that they have legal representation. In fact, according to the recent Los Angeles Times article by Kate Linthicum “In Court, ‘guardian Angels’ Aim to Help Immigrants Facing Deportation,” 72% of children facing deportation in the United States were not represented by a lawyer during their legal proceedings. The consequences for these children are dire; by returning to their home countries, they are re-entering extremely dangerous, life-threatening circumstances. Unfortunately, there are simply not enough pro bono attorneys to provide adequate representation for these children.
No child should be expected to stand in front of a judge, in a foreign country, and describe the traumas they have lived through; especially when that child knows that the judge’s decision will have such a powerful impact on his or her life. It has been suggested that low income legal service organizations could help provide these children with legal advice. This method, however, still leaves children to stand alone in court. Linthicum’s article highlights a humanitarian group who refer to themselves as guardian angels; volunteers who have been specifically trained to observe the court proceedings of refugees and then report any violations of rights. While these programs are helpful and are undoubtedly contributing to an important cause, we need an innovative idea to ensure that every child is represented in court.
My proposal is that law students who have successfully completed their first year of law school should be allowed to provide legal representation for these children. By doing this, we could easily and immediately address one major factor in the removal of refugee children; according to Linthicum, 3/4 of the cases heard in the second half of last year resulted in deportation of children, and the majority of those cases were decided simply because the children did not show up for their court dates. Expecting children to bear such responsibility is unrealistic, and it is an unacceptable reason to send a child back to such dangerous circumstances. It is important to consider that most of these children do not speak English. While the courts may provide interpreters, these children may not understand the importance of court dates and times, nor the complex technicalities that are associated with arguing a case in front of a judge (which, arguably, would be difficult even for most native English speaking adults). Additionally, these children are likely scared to attend their hearings. By simply assigning this responsibility to an adult, the lives of these refugee children could be saved.
Of course, not all of the legal issues facing these children are so easily addressed, and the circumstances of each child are unique and deserving of individual attention. To ensure quality representation, these law students would also undergo a rigorous training course upon entering the volunteer program. To incentivize participation in this program, students could receive college credit similar to credit received for legal internships, or they could become eligible for education grants to be applied to their tuition.
Works Cited
Linthicum, Kate. “In Court, ‘guardian Angels’ Aim to Help Immigrants Facing Deportation.” Los Angeles Times. N.p., 7 Feb. 2015. Web. 26 Feb. 2015.

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D'Andre Daniels

The main issue with in the lawyer process is the quick leap from being a law student to being a lawyer. Lawyers are coming out of law school not knowing how to actually practice law. This is not beneficial to society because you have people who are say defendant attorneys and prosecutors who do not know what they are doing. It is not there fault that they know nothing because they were not taught on how to actually practice law and that is where the missing piece is. Higher power in the law educational board say that it helps a lot when students do internships with law firms to get a feel for what law life is really like. This can be good and bad, good in the sense that you actually have a lawyer who cares about the future of law and actually teaches the students and bad in the fact that most just have interns there for extra filing and research. So then what happens to the students who don’t do a internship and just go straight into practicing law? There basically put in a pool with sharks and told “hey you get eaten or you survive”. My suggestion that would help make new incoming lawyers better at practing law would be some sort of residency/internship that they have to complete after graduating law school and can not be an official lawyer until it is completed. Most people with a high demanding job dentist, doctors, etc. use these residencies to help with the transition process for new workers and so they learn how to accomplish there goal which is to be the best worker they can be. The problem with this is that we would have to get enough people who cared about the future of law to help mentor and educate these young lawyers. If we have students just get a residency anywhere with anyone then they would not be learning anything and just be wasting time. The senior resident for these residencies should have to comply with some kind of up to date training so that the students are getting the best of the best. The main thing that would stop this from happening would be the old farts who really don’t care about the young lawyers sucking and feel that it is just something that they have to go through. Convincing them would be extremely challenging but I truly feel that if enough people cared about the future of law the elders of law would have to listen and have to be open to change.

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Nickey Johnson

Nickey Johnson
University of Washington
28 February 2015

Innovative Law Proposal:
Prosecutorial Accountability

1. Identifying The Issue
A prosecuting attorney has the power to bring criminal charges, decide the nature of charges, plea-bargaining and sentence recommendation. In addition, this exclusive power includes seeking the death penalty in murder cases. Studies have revealed that a prosecutor’s decision to try a case can be based on many factors, and for the most part prosecutors operate within the realm of the law. However, with the enormous powers of prosecutorial discretion in conjunction with no formal structure to hold prosecutors accountable, is giving these officials legal invincibility, thus opening the door for abuse of their powers, and in some cases questions the criminal justice systems integrity.

An innocent defendant can lose their life, and go bankrupt trying to pay for a defense lawyer. An innocent defendant can e losing their job; risk having their reputation tarnished, and endure long periods of separation from their families. Once proven innocent, there is no legal recourse for compensation. The defendant may be free, but not without incurring losses. Likewise, the issue arises about innocent people being executed or imprisoned; some spend half of their lives before a conviction is overturned in proving their innocence. Moreover, the prosecuting attorney is rarely held accountable.

This is only a small portion of the issue, given the purpose of this proposal brevity. But it is the most critical; this proposal will include how others want to address this issue and my innovated idea; I utilized these these three criminal case when considering the importance of improving prosecutorial accountability.

Case # 1
Connick v. Thompson
Facts of the Case:

John Thompson sued the Orleans Parish District Attorney’s Office, the District Attorney, Harry Connick, in his official and individual capacities, and several assistant district attorneys in their official capacities under 42 U.S.C § 1983 in a Louisiana federal district court. Mr. Thompson served fourteen years on death row, and faced execution eight times for a crime he did not commit, because prosecutors failed to turn over blood work in a related case. The jury awarded Mr. Thompson $14 million against Mr. Connick in his official capacity. On appeal, an en banc U.S. Court of Appeals for the Fifth Circuit rendered a tie vote and; thus by rule, affirmed the district court.

Question:
Can a prosecutor’s office be held liable for the illegal conduct of one of its prosecutors, on the theory that the office failed to adequately train its employees, when there has been only one violation resulting from that deficient training?

Conclusion
Decision: 5 votes for Connick, 4 vote(s) against
Legal provision: Section 1983
No. A divided Supreme Court held that a prosecutor’s office could not be held liable for the illegal conduct of one of its prosecutors when there has been only one violation resulting from that deficient training. Justice Clarence Thomas wrote the majority opinion for the court. In a dissent read from the bench, Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, argued that the “what happened here, the Court’s opinion obscures, was no momentary oversight, no single incident of a lone officer’s misconduct.” Instead, Ginsburg contended, evidence “established persistent, deliberately indifferent conduct for which the District Attorney’s Office bears responsibility under §1983.”Justice Antonin Scalia joined the majority opinion but filed a separate concurrence, joined by Justice Samuel Alito, which responded to the dissent.

Case # 2
The Duke Lacrosse Case

Facts of the Case

The Duke Lacrosse case was a 2006 criminal case resulting from what proved to be a false accusation of rape made against three members of the men’s lacrosse team at Duke University in Durham, North Carolina. In March 2006, Crystal Gail Mangum, an African-American student at North Carolina Central University who worked as a stripper, dancer and escort, falsely accused three white students, members of the Duke Blue Devils men’s lacrosse team, of raping her at a party held at the house of two of the team’s captains in Durham, North Carolina, on March 13, 2006.

Questions

Does broad prosecutorial discretion inject personal preferences into the administration of the law?

Conclusion

On April 11, 2007, North Carolina Attorney General Roy Cooper dropped all charges and declared the three players innocent. Cooper stated that the charged players Reade Seligmann, Collin Finnerty, and David Evans were victims of a “tragic rush to accuse.” The initial prosecutor, Durham County, North Carolina District Attorney Michael Nifong, withdrew from the case in January 2007 after the North Carolina State Bar filed ethics charges against him. In June 2007, Nifong was disbarred for “dishonesty, fraud, deceit and misrepresentation”, making him the first prosecutor in North Carolina disbarred for trial conduct. Nifong served one day in jail for lying about sharing DNA tests (criminal contempt).

Case # 3
United States of America v. Aaron Swartz

Facts of the Case

Aaron Swartz, an American computer programmer, writer, political organizer and Internet activist, was prosecuted for many violations of the Computer Fraud and Abuse Act (CFAA), after downloading many academic journal articles over the MIT computer network from a source for which he had an account as a Harvard research fellow.

Questions

The DOJ has the discretion to charge cases or not, and prosecutors can agree to different plea deals or even agree to have charges dismissed. Were the prosecutors in this case unfair in how they exercised discretion, or did they act irresponsibly in the case in how they exercised the discretion that the law grants them (Volokh)?

Conclusion
Facing trial and the possibility of imprisonment,2 indictments, 35 years in prison and one million dollars in fines, Swartz committed suicide, and the case was consequently dismissed.

2. Approaches to Prosecutorial Accountability

In my research I found a few suggestions presented:

•Prosecution could be required to pay a defendant’s legal fees if he or she is not convicted.
•To further discipline the process, one could implement a pro-rate system: Charge a defendant with twenty offenses, but convict on only one, and the prosecution must bear 95% of the defendant’s legal fees. This would discourage overcharging.

•The “nuclear option” of prosecutorial accountability would involve banning plea bargains. An understanding that every criminal charge filed would have to be either backed up in open court or ignominiously dropped would significantly reduce the incentive to overcharge. It would also drastically reduce the number of criminal convictions achieved by the justice system.

•A less dramatic option might be to require that the prosecution’s plea offers be presented to a jury or judge after a conviction, before sentencing. Judges or jurors might then wonder why they are being asked to sentence a defendant to twenty years without parole when the prosecution was willing to settle for five. Fifteen years in jail seems a rather stiff punishment for making the state undergo the bother of a trial.

3. Nickey Johnson’s Innovative Law Idea to Prosecutorial Accountability

• Use technology to gather data from the prosecutor’s office to analyze case screening decisions, charging decisions, plea offers, sentence recommendations, and dismissals separated by misdemeanor and felonies to an independent auditing firm(s) annually.

• These reports should be analyzed by the government and should be used at a tool for a prosecutorial review.

• Once the data was compiled it should be sent to an agency that could support and create mandatory web based conference trainings for prosecutor(s). These trainings can also have an additional component where a specific presentation can be added to address that office(s) particular expectations or barriers that prosecutors face in their particular location, environment, state or region.

• Utilizing this technology to hold annual ethics training geared specifically towards the role of prosecutors, including a fundamental up to date module of productive ways to use their powers of prosecutorial discretion and its impact on defendants, society and the legal system structure. A team of technology developers for programming and a team of prosecutors both federal and state, DOJ, lawyers, law enforcement, academic professors form a variety of disciplines, and civilians or community members for the educational piece of the content.

Conclusion

The cases above were high profile cases or cases that received national attention, but the truth is prosecutorial discretion is being abused at an unprecedented rate, in which a number of cases the media never reports and society never hears about. Today the criminal justice system provides prosecutors with incentives to make many decisions that have life changing consequences for criminal defendants, which are never reviewed in court. As a result, prosecutorial discretion in practice is more in depth than the case law infers. It is extremely rare for a prosecutor to be held civil or criminally liable. Prosecutors have an obligation to turn over exculpatory evidence that can prove the innocence of a defendant; uphold the law and a duty to make ethical decisions free from self-interest, political gain, or environmental pressures. Accountability should be enforced; without a doubt this is an issue that requires further discussion and action.

References
CNN, . “Life after death row: Helping break the ‘jailhouse mentalit’y .” n. page. Print. .
Huffington Post, . “The Power Of The Prosecutor.” (2011): n. page. Web. 1 Mar. 2015. .
“Justice Delayed .” AJR. N.p.. Web. 1 Mar 2015. .
Krauss, Rebecca. “The Theory y Of Prosecutorial Discretion I n Federal Law: Origins And Developments.” R e b ecc a 6.1 (2012): n.pag. Web. 1 Mar 2015. .
Martinez, Michael. Internet prodigy,U.S Edition Activist Aaron Swartz commits suicide. Web. 13 Mar 2013. .
Swartz, Nancy. “Library licensing and criminal law The Aaron Swartz case.” Association of College Libraries and Research. N.p., 2011. Web. 1 Mar. 2015. .
You tube, John Thompson – Prosecutorial Misconduct . OneForTenFilms, Film. 1 Mar 2015. .
Volokh , Eugene. “The Criminal Charges Against Aaron Swartz .” Flopping Aces. N.p., 19 Jan 2013. Web. 28 Feb. 2015. .

Reply
Dominic Cravines

The Legal Industry can improve the delivery of legal services in the US through the use of the internet and social media sites. Technology that connects people through internet communication and social media websites are becoming increasingly popular. People check their social media sites on a daily basis, and people browse the internet more than ever before. Therefore, ads for legal services should be posted all over the internet and social media sites. Law firms should establish Facebook and Twitter accounts and promote themselves through these types of websites. There are some people who may need to seek legal help at some point in their life, but they may have no idea how to find a lawyer. Outreaching to people through social media sites can create greater access to the justice that individuals seek. Having a popular blog or Twitter account will make society aware of a law firm’s presence. Therefore, future clients and customers will know where to find the law firm when they need legal help.
In regards to the act of giving legal advice as a non-lawyer; this should not be allowed. Non-lawyers have no legal credibility, nor is it possible to hold them accountable for the advice they give. Only lawyers should be allowed to give legal advice. If non-lawyers could give advice, then it would be pointless for students to go to law school and get a law degree.

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SANDS McKINLEY

Thanks to all the students in Professor Hampson’s class who participated in the UWT Innovative Law Challenge. There were pearls of insight and innovation in each submission.

I have called a tie between Nickey Johnson’s submission regarding prosecutorial discretion and its potential for abuse and Stefon Lyons and Arely Lopez’s team submission regarding the use of Big Data to predict legal outcomes. Nickey identified a current systemic issue worthy of consideration for change and did an excellent job researching and presenting her case, which revealed her lawyerly skills.

Stefon and Arely are thinking like technology futurists, which is urgently needed among legal professionals. Although they did not use current terms of art, they were in fact referring to cutting edge technology called “Big Data,” which is an algorithmic process of collecting and analyzing massive data sets for the purpose of discovering associations, spotting trends, and predicting outcomes. Law and Big Data are a marriage made in heaven, as law is nothing but a treasure trove of data in the eyes of a powerful computer.

The winners will each receive a $50 gift certificate and a round of applause during your next class.

Whether you won or not, continue to exercise your capacity to innovate in whatever career paths you choose and remember, “Fortune favors the bold!”

Best, Sands

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