1.0. INTRODUCTION
The twenty-first century has brought significant technological advancement that permeates all aspects of our lives. The legal field, though slow in the adaption of this technology, is beginning to pick up the pace. Artificial intelligence (AI) is now used to perform legal work once solely completed by legal practitioners.
Prediction that AI will replace lawyers is frequently in the headlines as of late, and that prediction without a doubt creates discomfort for lawyers who are already in an anxious state with regards to the future of the legal profession.
As this paper will explain, despite the predictions in the headlines, AI may benefit the legal profession, not steal its jobs, at least not yet. However, some lawyers are still hesitant to fully embrace AI even though it’s a fact that disruptive technologies are changing the way businesses and regulators think and provide services to their clients.
This paper begins with an explanation of the evolved definition of “AI” in the legal profession; it then discusses “AI” applications that are currently in use by the legal profession; and finally, it provides a glimpse of future predictions of the impacts “AI” could have on the legal profession.
2.0. OVERVIEW OF ARTIFICIAL INTELLIGENCE
Much has been said recently about the rise of “AI” and its potential to replace a high percentage of the current workforce. Adding to this perceived notion of jobs ceasing to exist is the alleged scenario in which “AI” could spell the end of the human race.
The legal profession has also seen similar and dramatic predictions. Many practicing lawyers, today, are weary about the emergence and use of new technology in the practice of law, such as AI and machine learning. Lawyers are apprehensive about this new technology either because they do not understand it, or because they do understand it, and as a result fear that their jobs may become obsolete.
Actually, the more a lawyer knows about and understands this new technology, the more likely it may be that excitement could replace their fears.
Conventionally, when we think of AI, it is likely our first thoughts are of science fiction, which depicts AI as involving UFO’s, extraterrestrials, and the like. Yet, within these various assertions regarding the legal profession, little is said about what AI specifically is.
AI has impressive underpinning comprised of computer science, mathematics, philosophy, psychology, economics, neuroscience, linguisitics and biology. AI is typically defined as the capability of a machine to imitate intelligent human behavior. A satisfying way to view current “AI” generally is as a big “forest of academic and commercial work around ‘the science and engineering of making intelligent machines.’”
AI covers a variety of processes including those such as image recognition or robotics that currently have no implementation in the practice of law. AI experts, such as Russell and Norvig, provide the following four concepts with which to view AI:
(1) systems that think like humans;
(2) systems that act like humans;
(3) systems that think rationally;
(4) systems that act rationally.
Specifically, AI is 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. Therefore, AI in the practice of law is the theory and development of processes performed by software instead of a legal practitioner whose outcome is the same as if a legal practitioner had done the work. This broad definition combines the use of technology with the desired end result. This definition provides the basis of what AI does (software that performs processes which a lawyer would otherwise have done) with what it produces (the end product of a lawyer’s work).
3.0. APPLICATION OF ARTIFICIAL INTELLIGENCE IN THE PRACTICE OF LAW.
Legal processes have been impacted the most by AI. This is especially true for routine legal tasks due to the nature of their work. Many AI applications are already being used in the legal profession. These applications include, inter alia, systems that can perform specific tasks that a lawyer may typically perform on a daily basis, such as document data input, legal research and analysis, and contract review.
One of the goals for this new technology is to streamline the laborious and mundane tasks lawyers encounter on a daily basis. Streamlining leads to efficiency, for which lawyers could see an increase in the amount of work they perform in a workday. Thus, it appears AI is positively transforming the legal profession. For example, litigators in the legal profession have been utilizing AI for almost ten years in the discovery process. Accordingly, all the hype about AI in the legal industry as being a new phenomenon is precisely that, hype
There are more than 30 legal applications of AI currently being used by the legal profession today. There are six major categories under which those applications fall, specifically:
Prediction Technology, 2) Legal Analytics, 3) Due Diligence, 4) Document Automation, 5) Intellectual Property, and 6) Electronic Billing.
This paper will discuss each of these six categories and will include information about some of the software applications for each of them, which are currently available to, or are in use by the legal profession.
3.1. Prediction Technology
AI software that forecasts the outcome of litigation is referred to as Prediction Technology. This type of technology analyzes past legal reference data to provide insights into future outcomes, powered by advances in machine learning. Legal analytics quantitatively could forecast a judge’s holding in litigation, or an examiner’s allowance of a patent application.
With this comes excitement over possibilities, namely revealing that certain judges are re-using the same language over and over again, or are according themselves to patterns. Such solutions are favourable to evaluate a litigant’s probability of winning by being shown “the win rate of motions” in a certain court. Thus, as a result of this new technology, a lawyer could make their decision as to whether or not to proceed to the Supreme Court with their case, based upon their probability of winning.
3.2. Legal Analytics
As it has been for “hundreds of years,” a core skill of a successful lawyer is to conduct accurate legal research. To do this, a lawyer will first identify the relevant law, (e.g., statutes, cases, and rules), for which the lawyer will use “to apply to the facts of a case.”
In an attempt to make this process more efficient, new technology has appeared in litigators’ toolkits: legal analytics. Legal analytics software is predictive technology that involves advanced technologies, such as machine-learning, and natural language processing to extract and analyze key data points from millions of case documents and docket entries.
It is important to note that data-driven insights from legal analytics do not replace legal research or reasoning, or lawyers themselves. They are a supplement, both prior to and during litigation. Before the emergence of legal analytics, litigators have had to rely upon their colleagues to obtain insight and information as to patterns or behaviors of a particular judge, and even a firm/attorney who may be on the opposing side of a case, for which those colleagues may have dealt with in the past.
Because this subjective data often relies on a small sample size, and therefore, could be misleading and is not likely to provide a complete, accurate picture. As a result, the use of legal analytics for litigators can be advantageous. Legal analytics offers litigators facts-based answers to key questions that emerge during litigation: What are the predictions of Judge X? Should we seek a change of venue? What specific tactics have opposing attorneys used in similar cases? Has party Y pursued litigation in this area before? If so, what were the outcomes? Should we press forward with this case or settle?
With the assistance of legal analytics, litigators can have answers to these critical questions in minutes, while it could take several weeks or more for lawyers to ascertain these answers from multiple sources that they piece together by hand. Legal analytics can also help in-house counsel when they need to make vital business decisions. For example, when in-house counsel faces the decision of who to hire as its outside counsel, legal analytics can provide information about the potential firms, such as the track record of a firm(s) in “litigating certain kinds of cases,” and “[W]hich firms have the most experience in this area, and what were the outcome of those cases?”
Given the similarities of legal analytics and predictive technology, it is of no surprise that one of the significant legal analytics software currently in use in the legal profession is also Lex Machina. Many lawyers have concerns and are resistant to this new technology, just like all other technological advancements in the legal profession, because they fear their jobs may become obsolete.
However, the legal profession saw the same concerns and resistance, when legal research moved from books to computers, but that transition was a positive one in that it did not reduce the need for attorneys skilled in legal research. Similarly, legal analytics will not make the judgment and expertise of seasoned lawyers obsolete. Rather, it will aid those who utilize it to provide better and more cost-effective representation for their clients, and will help lawyers better compete with their opponents. Lawyers who embrace legal analytics now will reap those benefits sooner and have a competitive advantage over those who do not.
3.3. Due Diligence
The AI application category of due diligence includes legal research, electronic discovery, and contract review. As a lawyer, a major undertaking one will perform on behalf of one’s clients is meticulously reviewing the facts of a client’s case along with performing legal research in order to assess their legal issue.
As a result, the lawyer may then appropriately advise the client as to what their options are; and give their advice and guidance on what, if any, actions the client should take. Performance of this task can be monotonous and time-consuming for lawyers and because of this it is more likely that lawyers could be prone to mistakes or inaccuracy as to their understanding of the law relevant to their client’s issue.
Consequently, the emergence of AI applications to assist with critical due diligence tasks was founded and employed. Kira Systems is one such tool that has been developed to assist lawyers in their due diligence work.
3.4. Document Automation
Traditionally, document creation and assembly were simultaneously the nuisances and the bread and butter of generations of associates. Drafting new documents, like contracts and other legal documents, for every matter involved constant care and efforts that were prone to introducing errors and took a great deal of time.
Nevertheless, there were few alternatives and few incentives to change, since many older document automation tools were cumbersome, difficult to use, and with the billable hour firmly in place, there was no reason to automate the process or introduce new efficiencies.
Be that as it may, in a 2015 article by Geoffrey Goldberg entitled What is Document Automation, it suggests that change is in the air today, as corporate legal departments are under pressure to cut costs, and they are passing those pressures on to outside counsel. As a result, a demand by client’s for law firms to “utilize new technology to increase efficiency and offer innovative legal services” has emerged; and document automation can oblige.
Document automation software automates a document based upon information/data it collects from a questionnaire for which a user inputs their answers. Based on the input provided by the users, the appropriate data and elements of the master template are then automatically inserted into a final document, which is generated by the system and then returned to them.
3.5. Intellectual Property
It is of no surprise that securing patents, copyrights and trademarks is often best left to a lawyer’s expertise. However, the entire patent application process can be long and arduous.”
By way of example, conventional trademark and patent search involves looking into hundreds, if not thousands, of results through manual research, which can be extremely time-consuming.
With the time constraint on patent applications, the need for a more efficient way to conduct the necessary research is crucial.
Consequently, IP lawyers/firms who choose to employ the AI software could greatly benefit from its use as it creates a more efficient and accurate way to handle IP matters, and as a result, the clients may also benefit.
3.6. Electronic Billing
As an alternative to paper-based invoices, the development of Electronic Billing platforms came about with the goal of reducing disputes on line items, more accurate client adjustments, (potentially) more accurate reporting and tracking, and reduced paper costs.
Employing an efficient and accurate legal billing tool is vital for lawyers and law firms; because if clients are not getting invoices, lawyers and law firms are not getting paid.
When a lawyer or law firm sets out to search for legal billing software, it is essential to confirm that the invoices the software creates are editable, easy to read and can be easily shared with clients in electronic format. As a result, the lawyer or law firm could avoid the costly, inefficient and time-consuming process of creating, printing out and mailing paper invoices.
4.0. FUTURE PREDICTIONS OF AI’S IMPACT ON THE LEGAL PROFESSION
There are disagreements among legal professionals and even experts who are in the AI and technology fields regarding, what impacts, if any, AI could have on the legal profession in the future.
Some believe the impacts will be beneficial and positive, while others portray the impacts in much more of a negative light. For instance, in an article by Lauri Donahue, she suggests that “a consensus has emerged that AI will significantly disrupt the legal market,” as well as “impact the availability of legal sector jobs, the business models of many law firms, and how inhouse counsel leverage technology”.
According to the McKinsey Global Institute, about 23% of a lawyer’s daily job duties could be automated. Similarly, several estimates suggest that a lawyers’ hours could result in a reduction of 13%, if all legal technology, including AI that is currently available is implemented and employed.
According to a 2016 Insight Report by Deloitte, it reveals that: [W]ithin the next twenty years more than 100,000 jobs in the legal sector are likely to be automated. Moreover, the Deloitte Insight report predicts profound reforms across the legal profession within the next 10 years, for which it finds that 39% of jobs (114,000) in the legal sector stand to be automated in the longer term as the profession feels the impact of more radical changes.
Deloitte further predicts that by 2025, the legal profession will see an overwhelming change as a result of the intense pace of technological developments, shifts in workforce demographics and the need to offer clients more value for money. In order for law firms to remain competitive and ensure that they attract the best talent to support their business, the time to develop a clear strategy to deal with these changes is now.
On the other hand, in a Law Journal by Sergio David Becerra, he indicates “AI is not likely to replace lawyers in procedural aspects of legal practice or in legal research. Instead, AI will be used to complete remedial tasks via automation-allowing lawyers to focus on the more detailed and high-level work of analysis.
Accordingly, these various opinions amongst legal professions and experts may continue to exist as the use of AI in the legal field continues to develop daily. According to Professor Richard Susskind, the trend in the development of AI applications in the legal profession will continue to grow. He predicts that: [T]he way lawyer’s work will change radically in less than two decades, given the remarkable state of flux the legal profession finds itself in. Innovative ways of providing legal services will develop, new providers will be firmly established in the market, and the workings of the courts will transform.
As a result, Susskind predicts many conventional legal businesses will fail, unless they adapt. On the contrary, entrepreneurial and creative young lawyers will be the ones with a “whole set of fresh opportunities,” which may be more advantageous to their future and success in the legal profession.
According to Professor Gary E. Marchant: “AI represents both the biggest opportunity and potentially the greatest threat to the legal profession since its formation.” Marchant indicates the radical effects of AI on the legal profession will continue to accelerate in the coming years. The opportunity AI presents for an attorney or law firm today is to be leaders in “efficiency, cost-effectiveness, and productivity.” Nevertheless, the incorporation of AI into the legal practice “will be a matter of keeping up rather than being a leader.”
According to Marchant: [O]ne thing is certain—there will be winners and losers among lawyers who do and do not take up AI, respectively. As one senior lawyer recently remarked, ‘unless private practice lawyers start to engage with new technology, they are not going to be relevant even to their clients.’ Accordingly, it is time to jump on board because the AI train is leaving the station.
6.0. CONCLUSION
Despite the perpetual fear by the legal profession that AI will soon render lawyers obsolete, as this paper shows, it is likely that will not be the case. Yes, the legal profession is undoubtedly evolving at a fast pace by way of technological advancement; but the emergence of these new technologies may prove to be more beneficial, than not, to the legal profession.
As of today, the AI software companies appear to share a common goal, which is to create software that promotes efficiency and accuracy in the daily tasks of lawyers and the legal profession as a whole. Although AI can assist with the tasks as mentioned earlier, it cannot assist with understanding a client’s needs and advocating for those needs, nor can it “replace the oral advocacy skills of a seasoned lawyer.”
According to Becerra, “[U]ntil software can be emotionally intelligent, cognizant of its surrounding social circumstances, aware of the desires of the community, and utilize the policy reasons behind the law, a lawyer will always be required.”
On the other hand, is that not what it appears AI software is steering towards? For instance, a live human being is the one who inputs the data, or codes, into a machine-based learning system, and that data comes from the mental thought processes of a human being. Although it is likely subjective as it is based upon the cognizant thinking of the person who inputs the information into the machine.
Therefore, the future of AI could potentially lead to software that is emotionally intelligent, cognizant of its surrounding social circumstances, and aware of the desires of the community.
With the use of AI, we are leveraging legal data to train machines to develop models that project the perception of cognitive activities like learning, hearing, understanding language and predicting outcomes.
As an illustration, AI already mimics certain operations of the human mind, and to actually marinate on that fact alone, is likely just enough to place fear in the minds of a seasoned lawyer.
Be that as it may, legal practitioners will always be needed to guide the creation of such software, correct it, and use its products to guide the client and the court to the correct and right determination.
Nevertheless, a mystery remains as to what AI in the legal profession will look like in 2035, as new developments in the field continue to develop almost daily. Equate this mystery to the fact that today self-driving cars exist as a result of AI, and that is a fact that more than likely was not even thought of by most of the world 15-20 years ago.