Throughout the numerous lockdowns induced by the COVID-19 pandemic, people around the world have increasingly used audio-visual software apps such as Zoom, Microsoft Teams, Cisco WebEx for team meetings, client calls and even court hearings.
With the increased use of online apps, cyber security has also become more relevant and lawyers need to know how to use technological tools and be trained in risk management practices, says Professor Michael Legg, who specialises in complex litigation and innovation in the legal profession.
“These apps are crucial to working from home or flexible working. Lawyers are very aware of them but need to ensure they know how to effectively use them. I expect we will see greater professionalism in the use of online meetings and hearings,” Prof. Legg says.
In one example of cyber security breaches affecting the legal profession, cyber criminals targeted the property and real estate sector using business email compromise scams. Prof. Legg says lawyers are key intermediaries in property transactions and need to take steps to avoid getting caught up in such scams.
But the most predominant legal technology trend of the year is Artificial Intelligence (AI) which the Oxford Dictionary defines as the theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages. AI continues to be a key driver of efficiency for lawyers, their clients and for enabling access to justice.
“It will continue to become a standard way of undertaking discovery in litigation and due diligence in major transactions. However, we can expect it to be used more in contract creation, straightforward legal advice, regulatory compliance, and online dispute resolution,” Prof. Legg says.
Despite the increasing use of technology in legal matters, there is still no AI judge operating in Australia. Legal experts say the main concerns with AI playing a more central role in court is that it impinges on the fundamental requirements of justice such as open justice, procedural fairness, and impartiality.
It is currently very challenging to automate most litigation as AI does not have the emotional intelligence to determine what is reasonable and what is misleading.
If we wanted to automate some legal decision-making, particularly in simple matters involving straightforward application of unambiguous rules, there are other techniques we could look to. For example, government could create machine consumable versions of legislation that can be queried directly.
“It is much easier for AI systems to give answers to legal questions where the laws are written in a language that computers can understand. If we start with rules written in computer code, then they can be executed by a computer automatically,” says Professor Lyria Bennett Moses, Director of the UNSW Allens Hub for Technology, Law and Innovation.
However, this is not the same thing as replacing judges with AI.
“Cases only make it to court where there is some indeterminacy as to how rules will be applied. But it may help with administrative decision-making and help potential litigants understand how the law applies in their situation”, she says.
Prof. Legg says a key benefit of predictive analytics (when done correctly) is that it can assist in overcoming human biases. This is because they can find correlations that the human brain cannot find by harnessing enormous amounts of computing power and data.
“However, if data is incomplete or biased then the prediction can be inaccurate,” he says.
Still, it is important to note that any future AI judge will need strict limits around it.
“At the end of the day, there is a massive difference between judgement and prediction. What AI systems can do is predict how judges might act, they don’t exercise judgement. They can predict outcomes, but they can’t exercise judgement," Prof. Bennett Moses says.
AI can help with the admin, it can support judicial decision-making, but ultimately – no known AI techniques can replace a judge, she says.
But, while a judge position is not yet viable for AI, technology can still be used to streamline court processes to increase efficiency and reduce costs.
AI can assist judges by providing a triage function and assist in decision-support systems.
“AI can provide guidance in assessing damages, incorporating predictive models to estimate the costs associated with an injury or the value of a lost opportunity, for example,” Professor Bennett Moses says, “although care must be taken to avoid replicating historic biases and anomalies.”
“Technology can also assist a party in completing court forms. It can suggest negotiation or mediation. It may even evaluate options for resolution or suggest options. The aim of the technology is to assist parties to resolve disputes themselves and reduce the cases that need a judge,” Prof Legg says.
Prof. Legg who manages the Future of Law and Innovation in the Profession (FLIP) stream – a strategic alliance between the Law Society of New South Wales and the Faculty – says that FLIP focuses directly on tech through two projects.
“The first project examined AI and the second studied online court hearings – both with a view to educating the profession but also examining how the values of the legal profession and the justice system support or challenge technology,” he says.
FLIP has also focused on many of the adjacent or supporting issues around technology such as change leadership for lawyers (led by Dr Justice Rogers), alternative fee arrangements (led by Prof. Legg), legal design (led by Dr Felicity Bell) and the future of legal service delivery (led by Associate Professor Marina Nehme).
Home to the FLIP stream, the Allens Hub has also added depth to research on the diverse interactions among technological change, law, and legal practice.
“Our research at the Allens Hub seeks to provide insights to policymakers and other stakeholders about how to best ensure that law operates well in contexts associated with new technologies – that it protects human rights and important values, ensures losses lie where they should, incentivises innovation in socially beneficial ways, ensures fair treatment, and so forth – in other words that law governs well in an evolving landscape,” Prof. Bennett Moses says.
“Within the FLIP Stream, researchers are also looking at technology and innovation more broadly in the legal profession. But we also draw on our research to train the next generation, not only of lawyers but also engineers and IT professionals,” she says.
Today, technology is giving rise to new skills that lawyers need to acquire, such as understanding the operation of a technology and being able to employ it (or challenge it) in a range of scenarios, but also being able to understand its outputs which can mean being more numerate and comfortable with statistics, Prof. Legg says.
Technology also reinforces the need for some existing skills, such as judgement and problem-solving, and highlighting other skills such as inter-personal relations.
“UNSW needs to ensure that our courses have relevant tech uses or examples as part of them. We need to make students aware of the way that legal practice is changing and equip them with relevant skills. That is not just focussing on tech, it is also incorporating the so-called soft skills, such as those that come from collaborating in teams,” Prof. Legg says.
“For example, in the compulsory course Resolving Civil Disputes we teach students about the use of technology assisted review in discovery (a form of supervised machine learning or AI) and explain the role of the lawyer in the process. We also include an online negotiation/mediation conducted in groups, which predated the pandemic, but which has become even more relevant since the pandemic.”
The Faculty also offers electives such as Designing Technology Solutions for Access to Justice, Information Technology Law and Regulation for Cyber Security.
“Our course on Designing Technology Solutions for Access to Justice (sponsored by Gilbert + Tobin) teaches students how to design and build legal applications – perhaps best described as bots rather than AI, but within the broad meaning of that term,” Prof. Bennett Moses says.
More broadly, in that course and in others such as Law and Technology: Comparative Perspectives, the challenge is not to teach lawyers how to use AI but rather how to use AI appropriately and well.
“In Regulation for Cyber Security, we go a step further and get students to think about security issues associated with relying on computer systems, particularly where (as in the case of AI) they are inscrutable yet relied on for making important decisions. Students can also take courses on a variety of technical topics (IT law, financial regulation and Fintech, and soon, on data privacy law),” Prof. Bennett Moses says.
This is less about being ‘AI-enhanced’ but very relevant to those seeking to work with the AI industry.
Prof. Bennett Moses and Prof. Michael Legg are currently writing a guide for the Australasian Institute of Judicial Administration on AI decision-making and courts. The UNSW Allens Hub has an upcoming event titled ‘Rethinking Law, Regulation and Technology: Authority and Respect for Law 3.0’. This Annual Lecture from Professor Roger Brownsword will look at how lawyers and law schools should respond increasing reliance on technologies in legal and regulatory practice. Register for the event here.