Ask The Experts

Gautam Patel

We find television shows about lawyers, law firms and crime detection so compelling because we perceive court rooms as arenas for a civilized form of gladiatorial combat. ‘Courtroom’ TV serials show feisty lawyers trading verbal blows against each other and sometimes even against awkward judges. Witnesses are the hapless victims fed to legal lions. Every now and then an ‘expert’ witness — a scientist or a doctor, perhaps — is trundled out; sly lawyers try to tie them in knots, usually saying something like “so you can’t say for sure”, to which the witness responds “of course not; that’s just the most likely answer, in my professional opinion.”

Reality isn’t so tidy. The cases lawyers deal with aren’t as dramatic. And experts come in various shapes and sizes. Few are as smooth and articulate as their television counterparts.

The complexity of litigation requires lawyers themselves to acquire expertise outside the law. These are areas that seldom show up on TV. A river water sharing dispute between two states forces lawyers to learn a great deal about hydraulic engineering (one fabled lawyer in America in the mid-1990’s was nicknamed Conan the Riparian). In judicial enquiries into aircraft disasters, lawyers wind up learning an incredible amount about aeronautical engineering. So too with construction, engineering, hotel management, insurance and surveys, maritime contracts, accounting and forensics. This is technical work, and much of it — unlike the brio and grandstanding of Boston Legal — is drudgery; slow, plodding stuff. And when it gets really technical, the experts are brought in.

Courts, lawyers and governments also rely on experts in other situations. Courts themselves often commission reports from experts (air pollution, traffic, environmental matters, health and safety, waste management, child care) as guides to decision-making. Governments love expert reports too, but for a different reason: they are useful diversions. When a government really doesn’t want to do something, the first thing it does is set up a committee and stuff it with lots of people who can be counted on to disagree; and the second is to ask for an expert report, which it can then ignore (the ‘expert’ report on the Bandra Worli Sealink — which pointed out that congestion would result, and showed where — is just one example). Government lawyers love to stand up and tell judges that these ‘expert’ committees have produced ‘technical’ reports that judges ‘cannot understand’. That, of course, is rank nonsense. Any expert report that can’t be understood isn’t worth the paper on which it is written; and judges routinely deal with very difficult technical issues.

Expert testimony works reasonably well in the real world of ink and bloodstains. Digital technology forces not just new evidentiary standards, but new methods and protocols. My friend Dilip D’Souza writes a column in the Mint about numbers. A recent article was about something called Benford’s Law, named for Frank Benford, an electrical engineer at General Electric in the 1930’s who noticed that in any list of numbers, about 30% of time the leading digit is the number 1 and from there it slopes off to 9, which occurs only about 5% of the time. This seems counter-intuitive, but it has been found to apply to a mind-boggling variety of situations — from stock markets to death rates and even river lengths. Over the last two decades it has been applied in accounting fraud detection.¹ The choices fraudsters make are not random, and, as Dr Mark Nigrini and Dr Theodore P. Hill show, they don’t fit the Benford’s Law pattern. Forensic accountants use this mathematical theorem to find inconsistencies. For example, if a company has a policy that all disbursements over Rs.1,000 need approval, a fraudster will typically keep his fraudulent transactions below that figure. The result is a distribution that is skewed and varies from the one predicted by Benford’s Law (there are far too many entries of Rs.900, say) and this where a forensic accountant will zero in. This is not new, as we can see from this fascinating 1998 article,², and it seems never to have gone out of fashion. The principle doesn’t prove the fraud; but it does tell you where to look.

The reason this becomes increasingly important to us today is because while most of human enterprise has adapted itself to digital technology and the power of numbers, the law lags very far behind. Using something like Benford’s Law could help courts in a more accurate and rapid assessment of fraud across a very wide spectrum: from securities fraud, bogus insurance and medical claims to the fudging of census data for slum rehabilitation projects and even detecting bogus payments and overpayments to contractors. Of course Benford’s Law is not infallible. There’s an interesting article which shows that Bernie Madoff’s $50bn Ponzi scheme closely followed Benford’s Law.

Benford’s Law fails on small samples and few transactions and it doesn’t apply to “assigned” numbers like telephone or bank account numbers or a UID/Aadhar number. But where there is large-scale fraud — and that means more investigation, more details, much more time, longer trials and more evidence — being able to use it in court would vastly speed up decision making. To be sure, you’d need tech-savvy judges unafraid of numbers but there’s really no shortage of those at the level of the High Courts and the Supreme Court (including our present CJI who is very au courant with technology).

Today’s white collar crime is sophisticated and it uses digital technology in ways we’ve never conceived. But our laws, and in particular our digital and evidence laws, are still frozen in a time warp of paper and ink. Indeed, the oddest thing is that our existing digital law doesn’t seem to want to deal with numbers at all. Instead, it presumes that the digital world is only an avatar of the real world; therefore, what has worked for so long in the latter should also work in the former. This makes matters very difficult for investigative agencies and digital forensics. And as long as this disconnect between law and technology continues, we are going to see more crime and less punishment.