The 7th Statues Assembly, “the parliament of the legal profession” of the Bundesrechtsanwaltskammer (BRAK) held its inaugural meeting on November 4th 2019. Through a clear majority, the assembly voted to not only retain all previously established committees but also to set up a new 7th committee on legal technology.
Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making?
Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine–human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, if done well.
Wu, Tim, Will Artificial Intelligence Eat the Law? The Rise of Hybrid Social-Ordering Systems (August 25, 2019).
Machine learning has entered the world of the professions with differential impacts. Engineering, architecture, and medicine are early and enthusiastic adopters. Other professions, especially law, are late and in some cases reluctant adopters. And in the wider society automation will have huge impacts on the nature of work and society. This paper examines the effects of artificial intelligence and blockchain on professions and their knowledge bases. We start by examining the nature of expertise in general and then how it functions in law. Using examples from law, such as Gulati and Scott’s analysis of how lawyers create (or don’t create) legal agreements, we show that even non-routine and complex legal work is potentially amenable to automation. However, professions are different because they include both indeterminate and technical elements that make pure automation difficult to achieve. We go on to consider the future prospects of AI and blockchain on professions and hypothesise that as the technologies mature they will incorporate more human work through neural networks and blockchain applications such as the DAO. For law, and the legal profession, the role of lawyer as trusted advisor will again emerge as the central point of value.
Flood, John A. and Robb, Lachlan, Professions and Expertise: How Machine Learning and Blockchain are Redesigning the Landscape of Professional Knowledge and Organisation (August 9, 2018). Griffith University Law School Research Paper No. 18-20.
The annual ABA techreport reports that whilst almost 60% of law firms use cloud computing applications to store client data, only 35% take standard precautionary measures to secure these data. The report identified severe deficiencies in firms’ approach to cybersecurity, particularly when using software as a service.
Will Artificial Intelligence (AI) replace human lawyering? The answer is no. Despite worries that AI is getting so sophisticated that it could take over the profession, there is little cause for concern. Indeed, the surge of AI in the legal field has crystalized the real essence of effective lawyering. The lawyer’s craft goes beyond what AI can do because we listen with empathy to clients’ stories, strategize to find that story that might not be obvious, thoughtfully use our imagination and judgment to decide which story will appeal to an audience, and creatively tell those winning stories.
This article reviews the current state of AI in legal practice and contrasts that with the essence of exclusively human lawyering skills—empathy, imagination, and creativity. As examples, we use three Supreme Court cases to illustrate these skills.
Oseid, Julie A. and Vorenberg, Amy and Koenig, Melissa Love, Ok, Google, Will Artificial Intelligence Replace Human Lawyering? (2019). 102 Marquette Law Review 1269 (2019); U of St. Thomas (Minnesota) Legal Studies Research Paper No. 19-13; Marquette Law School Legal Studies Paper No. 19-13. Available at SSRN: https://ssrn.com/abstract=3449500
A quiet revolution is afoot in the field of law. Technical systems employing algorithms are shaping and displacing professional decision making, and they are disrupting and restructuring relationships between law firms, lawyers, and clients. Decision-support systems marketed to legal professionals to support e-discovery—generally referred to as “technology-assisted review” (TAR)—increasingly rely on “predictive coding,” machine-learning techniques to classify and predict which of the voluminous electronic documents subject to litigation should be withheld or produced to the opposing side. These systems and the companies offering them are reshaping relationships between lawyers and clients, introducing new kinds of professionals into legal practice, altering the discovery process, and shaping how lawyers construct knowledge about their cases and professional obligations. In the midst of these shifting relationships—and the ways in which these systems are shaping the construction and presentation of knowledge—lawyers are grappling with their professional obligations, ethical duties, and what it means for the future of legal practice.
Through in-depth, semi-structured interviews of experts in this space—the technology company representatives who develop and sell such systems to law firms and the legal professionals who decide whether and how to use them in practice—we shed light on the organizational structures, professional rules and norms, and technical system properties that are shaping and being reshaped by predictive coding systems. Our findings show that AI-supported decision systems such as these are reconfiguring professional work practices. In particular, they highlight concerns about potential loss of professional agency and skill, limited understanding and thereby both over- and under-reliance on decision-support systems, and confusion about responsibility and accountability as new kinds of technical professionals and technologies are brought into legal practice. The introduction of predictive coding systems and the new professional and organizational arrangements they are ushering into legal practice compound general concerns over the opacity of technical systems with specific concerns about encroachments on the construction of expert knowledge, liability frameworks, and the potential (mis-)alignment of machine reasoning with professional logics and ethics.
Based on our findings, we conclude that predictive coding tools—and likely other algorithmic systems lawyers use to construct knowledge and reason about legal practice—challenge the current model for evaluating whether and how tools are appropriate for legal practice. As tools become both more complex, and more consequential, it is unreasonable to rely solely on legal professionals—judges, law firms, and lawyers—to determine which technologies are appropriate for use. The legal professionals we interviewed report relying on the evaluation and judgement of a range of new technical experts within law firms and, increasingly, third-party vendors and their technical experts. This system for choosing technical systems upon which lawyers rely to make professional decisions—e.g., whether documents are responsive, whether the standard of proportionality has been met—is no longer sufficient. As the tools of medicine are reviewed by appropriate experts before they are put out for consideration and adoption by medical professionals, we argue that the legal profession must develop new processes for determining which algorithmic tools are fit to support lawyers’ decision making. Relatedly, because predictive coding systems are used to produce lawyers’ professional judgment, we argue they must be designed for contestability—providing greater transparency, interaction, and configurability around embedded choices to ensure decisions about how to embed core professional judgments, such as relevance and proportionality remain salient and demand engagement from lawyers, not just their technical experts.
Kluttz, Daniel and Mulligan, Deirdre K., Automated Decision Support Technologies and the Legal Profession (July 15, 2019). Berkeley Technology Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3443063 or http://dx.doi.org/10.2139/ssrn.3443063
Commissioned by the State Bar of California, July 2018, Professor William D. Henderson
The Bar contracted with Professor William D. Henderson to conduct a landscape analysis of the current state of the legal services market, including new technologies and business models used in the delivery of legal services, with a special focus on enhancing access to justice. The report is the first step in the
Bar’s study of delivery of legal services through the use of technology.
The Solicitors Regulation Authority (SRA), has produced a dedicated webpage of resources for solicitors to help them prepare for the introduction of their new Standards and Regulation on 25 November. The new Standards and Regulations aim to reduce bureaucracy, simplify rules and provide greater flexibility. One of the key new requirements is for all law firm websites to use the SRA clickable logo, which uses smart technology to confirm to website visitors that a specific firm is regulated and what this means for clients.
The following content has been provided by the panel presenting on this topic during the morning on day 2 of ICLR 2019.
In a rapidly evolving legal landscape and digital world, legal practitioners are engaging an increasingly sophisticated clientele requiring solutions that lie at the intersection of different industry sectors. The panellists will be sharing perspectives and observations from efforts by Singapore, Canada, and Scotland to encourage innovative use of legal technology, artificial intelligence, and the related regulatory considerations.
This session will focus on the recent efforts to encourage innovation in and the use of technology in the provision of legal services, with discussion including the following:
- Perspectives on the creation and adoption of open-source legal research databases and legal technologies;
- The business, legal, and regulatory challenges posed by the use of artificial intelligence; and
- The successes and lessons learnt from existing efforts to overcome resistance to change and the use of legal technology.
Moderator: Joan Janssen, Director of Legal Services, Ministry of Law, Singapore
Panellist: Sarah Sutherland, Director Programmes and Partnerships, Canadian Legal Information Institute
Panellist: Ivan Mokanov, President, Lexum Inc.;
Panellist: John McKinlay, Convenor Technology Law and Practice Committee, Law Society of Scotland
What particularly do you hope to explore in this session? Any specific questions you hope to answer?
- Encouraging innovation through tech to ensure the flourishing of the legal industry could lead to potential under-regulation, while a focus on consumer protection may result in overregulation and stifling of development. How are these considerations balanced in the regulation of legal service providers?
- What are some key guiding principles from your respective jurisdictions that can guide the future of legal regulation in relation to the use of tech?
- How do the existing legal frameworks (or other features) of your jurisdictions encourage innovation in legal services?
- What are some examples of resistance to innovation through tech in the provision of legal services? What has worked (and what has not) to help overcome such resistance?
What do you hope to achieve with this session?
This workshop aims to engage participants in a rich discussion and sharing of experiences from various jurisdictions and regulators with regard to encouraging innovation in the provision of legal services via technology. Discussion topics include:
- Lessons learnt from efforts to overcome resistance to change and legal technology in Singapore;
- The business, legal, and regulatory challenges posed by the use of artificial intelligence in Scotland; and
- Experiences from the Canadian Legal Information Institute (CanLII) and its technology and publishing partner, Lexum Inc on open-source online legal research and legal technology.
What will happen to law firms and the legal profession when the use of artificial intelligence (AI) becomes prevalent in legal services? This paper addresses this question by considering specific AI use cases in legal services, and by identifying four AI-enabled business models (AIBM) which are relatively new to legal services (if not new to the world). These AIBMs are different from the traditional professional service firm (PSF) business model at law firms, and require complementary investments in human resources, intra-firm governance and inter-firm governance. Law firms are experimenting with combinations of business models. We identify three patterns in law firm experimentation: first, combining the traditional PSF business model with the legal process and/or consulting business models; second, vertically integrating the software vendor business models; and third, accessing AIBMs from third-party vendors to take advantage of contracting for innovation. While predicting the future is not possible, we conclude that how today’s law firms transform themselves into tomorrow’s next generation law companies depends on their willingness and ability to invest in necessary complements.
Armour, John and Sako, Mari, AI-Enabled Business Models in Legal Services: From Traditional Law Firms to Next-Generation Law Companies? (July 12, 2019). Available at SSRN.