by Dr. Lance B. Eliot
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Key briefing points about this article:
- Questions abound about the role of sentimentality and emotion with the halls of justice
- A famous court case entailing a Tribute to a Dog is legendary for a sentimental closing argument
- AI can be utilized to try and gauge sentimentality within a written record of a court case
- There is also the use of AI for real-time sentimentality detection and for opinion mining
- The future could entail using AI routinely in this rooting out role, but qualms remain
Let’s consider how sentimentality can be intertwined into the courts, though presumably there is supposedly no place for sappiness or emotional turpitude therein. One of the most revered closing arguments in an American courtroom took place in 1870 as part of the now-classic court case Burden v Hornsby. The eloquent remarks became known as the famed Tribute to a Dog. This is the heartwarming moniker given to the closing argument proffered by the lawyer representing Charles Burden, powerfully elucidated by Missouri attorney and statesman George Graham Vest, and for which has been noted in history as one of the most celebrated or perhaps infamous closing statements ever made in an American courtroom.
Here is the text of the opening paragraph for Vest’s somewhat soppy closing argument: “The best friend a man has in the world may turn against him and become his enemy. His son or daughter that he has reared with loving care may prove ungrateful. Those who are nearest and dearest to us, those whom we trust with our happiness and our good name may become traitors to their faith. The money that a man has, he may lose. It flies away from him, perhaps when he needs it most. A man’s reputation may be sacrificed in a moment of ill-considered action. The people who are prone to fall on their knees to do us honor when success is with us, may be the first to throw the stone of malice when failure settles its cloud upon our heads.”
No dogs are mentioned in there as yet, but we are being set up by the contention that people are not necessarily loyal to one another, and that indeed people seem pretty much to be entirely out for themselves and utterly unreliable and undependable.
Given that setting of the stage, as it were, here’s the next part of Vest’s commentary: “The one absolutely unselfish friend that man can have in this selfish world, the one that never deserts him, the one that never proves ungrateful or treacherous is his dog. A man’s dog stands by him in prosperity and in poverty, in health and in sickness. He will sleep on the cold ground, where the wintry winds blow and the snow drives fiercely, if only he may be near his master’s side. He will kiss the hand that has no food to offer. He will lick the wounds and sores that come in encounters with the roughness of the world. He guards the sleep of his pauper master as if he were a prince. When all other friends desert, he remains. When riches take wings, and reputation falls to pieces, he is as constant in his love as the sun in its journey through the heavens.”
And so on, the closing argument prattles along in that same vein.
Upon reading even just the first two paragraphs of his remarks, I wouldn’t blame you if you rushed home right away to hug your beloved pet dog or maybe drove directly over to your local pet store to obtain a venerated canine. I realize that cat lovers might be a bit chagrined at all this love being tossed toward dogs and feel left out, but do keep in mind that the court case dealt with a hunting dog named “Old Drum” that Burden owned and that was shot dead by a sheep farmer named Leonidas Hornsby. Vest was trying to urge the jury toward awarding Buren a requested $150 judgment (the jury allotted $50; the case was appealed by Hornsby and eventually landed at the Missouri Supreme Court, with Burden prevailing).
Besides being a popular and long-lasting tribute to dogs, there is something else notable about this particular closing argument: There was nothing whatsoever mentioned in the closing statement about the case per se.
Vest did not discuss the evidence. He did not bring up the various facets of the case and nor deal with any contentions or counterarguments underlying the matters at hand. Instead, he delivered an impassioned speech that was vacuous of any demonstrative legal substance. Admittedly, he won the case, and thus presumably the closing argument was sufficient, though it is of course hard to say how much those sentimental statements impacted the decision made by the jurors. Could things have turned out better if Vest had made sure to include legal substances? Maybe, maybe not. Unless there is a parallel universe in which we can do a redo, we’ll never know for sure.
Doggedness Of Sentimentality
Shift gears and consider the nature of your legal efforts.
In theory, the law and the practice of law are supposed to take place in an atmosphere of objectivity, devoid of any passion, feelings, or similar sentiments. The facts are the facts, and any subjectivity is to be inextricably and inexorably weeded out of the matter. Logic shall prevail over whim or gut instinct.
But is that what really happens?
There is undoubtedly and seeming inarguably an infusion of sentiment into nearly every nook and cranny of how the practice of law takes place. Some would vehemently point out that humans are humans, meaning that since the practice of law and the efforts of the courts is undertaken by humans, you have to assume and expect that human emotions and sentiment will be awash throughout the process. There is no getting around it.
That being the case, if you accept that claimed premise, the obvious next step is to try and ferret out the inclusion of sentiment and bring it to the fore. If there is going to a systematic notion of mitigating or eliminating sentiment from the proceedings, you have to first detect that it exists and is being utilized. After making a detection, you can then decide what course of action to take in dealing with mitigating or eradicating it.
Enter into this picture the use of sentiment analysis, oftentimes formally referred to as Sentiment Analysis (SA) and considered a field of study that embodies techniques from linguistics, social behavioral science, psychology, and the like. In brief, sentiment analysis seeks to examine any kind of expression and ascertain whether there is sentiment included and what kind of sentiment is being used.
This can include interpreting facial expressions, such as trying to ascertain whether a person is happy or sad, angry or contented, and so on, doing so via the look on their face. This can also be done by the words a person uses while speaking. Sentiment can arise in the words chosen and the intonation made while uttering those words. In addition, sentiment can be found within the written word, allowing for perusing a written narrative to seek out the sentiment embedded within any given prose.
Turns out that the by-hand approaches to Sentiment Analysis are increasingly being bolstered by Artificial Intelligence (AI).
Modern-day AI can examine images of collected facial expressions to try and determine which sentiments underly those visual indications. AI can examine voice recordings and do analyses even during a live stream of someone speaking, doing so to flush out the sentiment. Today’s AI can also inspect written texts and try to spot sentiment that might be hidden within the narrative provided.
There is an allied area known as Opinion Mining (OM). Some assert that SA and OM are synonymous and therefore treat them as the same thing. Others contend that SA is about feelings or emotions, while an opinion is more akin to a narrative that is either factually based or non-factually based, and thus OM is distinct from SA. Whether they are separable or not, most would nonetheless concede that they are close cousins of each other and oftentimes work hand-in-hand.
Another variant is whether the sentiment or opinions are being uncovered in just any kind of expression or whether it is an expression found within a legal context. Recall the Tribute to a Dog and consider the remarks that were made by attorney Vest, doing so in a legal context during the closing arguments of the case. You might say that he used a form of legal sentiment and a form of legal “opinion” in how he elucidated his closing remarks.
Immersed Into AI And The Law
In my research on AI and the law, I define SA and OM in a legal context and consider them as separate but aligned topics:
· Legal Sentiment Analysis (LSA) entails the detection of expressed or implied sentiment about a legal matter within the context of a legal milieu.
· Legal Opinion Mining (LOM) entails the identification and illumination of explicit or implicit opinion accompaniments immersed within legal discourse.
For more about this topic, see my research paper at this link here: Legal Sentiment Analysis and Opinion Mining (LSAOM): Assimilating Advances in Autonomous AI Legal Reasoning (https://orcid.org/0000-0003-3081-1819).
Gradually, advances in AI will allow the law profession to make use of Legal Sentiment Analysis and Legal Opinion Mining to increasingly expanded uses. To what end, you might wonder? The notion is that LSA and LOM can be used in a variety of significant and notable ways. A written court case and its judgment could be reviewed by an AI system capable of performing sufficient LSA and LOM to try and assess where sentiment and opinion reside (differentiating “opinion” of a factual nature versus that of a non-factually based nature). This might be used to be better informed about the nature of the case and might even be used as a basis for appeal.
Here’s the scarier part, perhaps, which will potentially become apparent in the next few years.
As the courts go online, partially sparked by trying to contend with the pandemic, it will be relatively easy to leverage an AI-based sentiment analyzer during a trial. The online video could be examined in real-time by the AI system, examining the expressions of the judge, the jury, the attorneys, expert witnesses, and the like. An attorney using such technology could be getting real-time updates from the AI about the sentiments being expressed, leveraging those insights accordingly.
Some are worried that this opens a Pandora’s box and believe it is yet another reason to go slowly in terms of having the courts become online based. Others contend that this kind of AI-powered technology is inevitably going to weave its way into the practice of law and that trying to keep it at bay is a head-in-the-sand perspective.
Aristotle philosophized that the law should be free of passion. Imagine his reaction at seeing today’s world and our judicial approaches, and one wonders whether he would be in favor of adopting AI-enabled Legal Sentiment Analysis and Legal Opinion Mining, or whether he would make an impassioned argument against it.
Either way, this kind of AI is coming along and will undeniably become a force to be reckoned with. Meanwhile, remain calm and see if you can find a puppy someplace to pet and play with, it might help to reduce the unnerving reaction to these rather disquieting matters.
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Additional writings by Dr. Lance Eliot:
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- For his AI Trends column, see: www.aitrends.com/ai-insider/
- For his Medium column, see: https://lance-eliot.medium.com/
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