Saturday, July 19, 2003

Non-Network Networks of Non-Network Networks: Non-Deterministic Evidence Marshaling Strategies and Time's Wiles

There are different "templates," or intellectual strategies, for organizing evidence associated with possible and actual legal proceedings: e.g., webs of evidence & conditional inferences, time lines, scenarios, narratives, possibilities (hypotheses suggested by evidentiary details), and legal rules and their elements. See P. Tillers & D. Schum, A Theory of Preliminary Fact Investigation.

In some U.S. legal literature there is talk about "non-bank banks," institutions that work much like banks, but are not quite banks. In the same spirit: It may be appropriate to refer to the "templates" mentioned above -- time lines, etc. -- as "non-network networks" -- because, although each of the ingredients in each of the templates (viz., patterns of marshaling evidence) interacts with and influences one or more ingredients in its template, given the non-recurring nature of the evidence typically found in legal proceedings, it is possible -- nay, it is likely -- that the uncertainties associated with each of the ingredients in each of the enumerated templates (marshaling methods) propagate to other ingredients in the same network in non-deterministic ways, which means that human judgment and intuition must do their work at each step.

If real-world inference typically involves (as I think it does), the use of a set of such evidence marshaling methods ("templates" for organizing evidence and thought about evidence) rather than any single evidence marshaling strategy, it is probably also appropriate refer to such collections of evidence marshaling methods as non-network networks -- because, although each evidence marshaling method interacts with and influences one or more other evidence marshaling methods, these interactions are also non-deterministic, which means, again, that human judgment and intuition must do their work at every step.

Things get worse yet -- at least for people who would like to have deterministic or quasi-deterministic methods or strategies for assessing evidence and facts, evidence marshaling strategies that strictly or substantially regulate or channel human inference in litigation -- , things get yet worse for people so minded when time enters the picture -- because when time enters the picture -- i.e., when the assessment of evidence and facts becomes dynamic -- the number of inferential possibilities generated or suggested by the various non-network evidence marshaling networks readily and frequently explodes. Cf. P. Tillers, Is Proof in Litigation Predictable?: Some Obstacles to Systematic Assessment of Decisions about Proof in Litigation. Worse yet, sometimes it may become almost impossible to predict the new inferential possibilities that will emerge as time works its will and, consequently, sometimes it may be next to impossible to anticipate the inferential and investigative tasks that a rational trier of fact would want to perform (if she were in a position to do so) before possible future states of the world (including the institutional legal world) become realities. Cf. Id; P. Tillers, The Explosive Dynamic Complexity of Evidentiary Processes

So, when time enters the picture, there is a very real chance that the inference problems that are associated with legal proceedings or possible legal proceedings will become quite like mush, rather like a mess of pottage -- if, that is, such problems haven't already become mushy as a result of the complex and non-deterministic interactions among individually-complex and non-deterministic patterns of evidence marshaling!
This is the sort of conclusion toward which I seem to be heading. Do you, Gentle-but-Critical Reader, have any words of warning or wisdom for me before I rush or stumble along to such a desultory conclusion?

  • N.B. Is the conclusion "desultory"? And even if the anticipated conclusion is valid, does it follow that mushy methods of evidence marshaling becoming dispensable, unnecessary? Even for the participants in investigation and proof in and for litigation? For example, would you advise lawyers to forget about organizing evidence on the basis of the elements of claims and affirmative defenses? But if not, does it follow that the system in which such participants must play is "rational"? Or does the need of players to use certain methods of organizing evidence merely show that under certain institutional conditions, all participants must play a game of blind-man's-buff?
  • Postscript: Some of the above matters (and many much more interesting questions about probability [in arenas other than law]) will be discussed at the Konstanz 2003 International Summer School. Join us!