Introduction
- Back in the 80s, technology was a typewriter and the occasional revolutionary telex machine.
- Now, we have come a long way. We started with word processors, moved to fax machines and personal computers, onto the internet, into digitisation and artificial intelligence towards the metaverse, quantum computing, and the decentralised Web 3.0.
- Artificial intelligence is achieved primarily through machine learning, where a machine automatically learns and improves from experience instead of requiring explicit programming to reach an outcome.
AI- to use or not to use?
- Social and legal duty:
- We all have a duty to serve, that’s the first thing to bear in mind. We all have the duty to make constructive use of whatever technology is available if it helps to provide a better, quicker, and more cost-effective service to clients, if you are a lawyer, and to provide a better, quicker, and more cost-effective dispute resolution process if you are a judge.
- Risk management and protection:
- It is an integral part of the adoption of new technologies that we need to do all we can to protect the very same citizens and businesses from their adverse effects. That means that, where appropriate, we need to promote effective regulation, rule-making, data protection, the protection of confidential material, and the minimisation of cyber-crime. All these present risks to the communities we serve to a greater or lesser extent.
Does the AI help the legal industry and practice? BIG YES!
- Current generative AI can access a large proportion of the data on the internet.
- The benefits of machine-readable documentation are that you can obtain data from a far greater variety of sources, and that data fields offer you solutions at every stage, and allow you later to draw comprehensive data-driven conclusions from what has been done.
- Law firms are already using AI in a variety of ways, from discovery and document review, to legal research, predicting the outcomes of court cases and reviewing contracts. With the advent of generative AI like ChatGPT, law firms are also looking into how they can harness this technology to aid with legal research and drafting
What Remains for the Lawyers?
1. Judgement, empathy, and the ability to read a room
- One of the first things we should understand is that clients don’t have a “legal problem” they just have a problem, and law is one of the tools that can be used to solve it.
- Clients also don’t give you the facts of their case neatly laid out like a law school hypothetical. You have to find out what they need, and think about the gaps in the information you have (and weigh up the pros and cons of asking something (that may turn out to be irrelevant and frustrate the client)).
- This requires judgment, empathy, and the ability to read a room, on the part of the lawyer, to understand what is the client telling you, not telling you, or doesn’t know how to tell you – that really cannot be outsourced to a machine!
2. Customising the solution to the client
- Second, even if an AI system were to say that the likelihood of a positive outcome in court is “70%”, or “high”, that number or estimate alone is not helpful to the client or the lawyer in deciding whether the client should proceed with the case, and what strategy to adopt. Lawyers are still needed to uncover what the client’s interests are (and the client’s risk appetite), explain the strengths and weaknesses of the case, and provide a legal strategy.
- Lawyers also need to assess whether a solution on paper (regardless of whether it is generated by AI) would work, requiring a nuanced understanding of the client’s business. And where another party is involved, to be able to get into the shoes of that other party to assess if the solution is also palatable to them, so that they are more likely to accept it.
3. Adaptability; thinking on one’s feet
- At present, generative AI can give a good first draft, but you still have to check it and refine it. For example, you could ask it to come up with cross-examination questions after feeding it parties’ statements – or you could prepare a list of such questions yourself. However, if at trial the answer from a witness is not as expected, the lawyer must be able to deviate from “script” within seconds to get the answers needed to prove the case, and have the flexibility to try various approaches based on the witness’ reaction.
What Can Lawyers Do to Stay Ahead in this Age of AI?
1. Lawyers still need to put in the effort to know the law- there are no shortcuts
- know what questions to ask the client so you have a complete set of facts to advise on, and what assumptions to make;
- identify the legal issues, which can only stem from understanding the subject matter, in order to engineer effective prompts for the generative AI system;
- review the output from the generative AI system to see if it is correct, and make the appropriate edits and additions to it; otherwise, you are just correcting English, and not applying a legal mind;
- explain the reasoning behind your conclusion, or why you recommend one option over another.
2. Take time to understand the technology and experiment with it
- There are many free articles on the web about AI, as well as books and videos – follow up with those that speak in a way you understand, and then pursue a few more to ensure you have both the correct information and a balanced perspective.
- It is important to understand the technology and its developments to distinguish fact from hype. This also helps you in asking the right questions of your clients if they approach you about AI.
3. Keep updated on the legal development surrounding the use of Al
- Keeping updated on legislative developments and regulatory action/judicial decisions around the world will help to get perspective on what are the risks and methods of mitigating those risks when using AI, and what are the grey areas (e.g. IP issues relating to generative AI), enabling lawyers to effectively advise their clients.