Chambers conference rooms have been updated with the latest technology. Courts have issued practice directions. Zoom filters have been set (or perhaps turned off). What more does the profession have to do?
According to Professor Richard Susskind OBE, a lot more.
Attendees at the recent Australian Bar Association Conference were fortunate to hear from Professor Susskind who proffered his thoughts on “The Future of Courts: access to the law, remote courts and justice re-imagined”.
Professor Susskind is a specialist in legal technology, having authored countless books and papers on the topic. Since 1998, he has also served as the IT Adviser to the Lord Chief Justice of England and Wales. There is no doubt about Professor Susskind’s eminence in addressing the Australian bar about technology and the law.
What was apparent from Professor Susskind’s address and his writings, such as Tomorrow’s Lawyers: an introduction to your future (published by Oxford University Press, 2nd edition 2017) is that the law not only still has capacity to adopt more technology, it has an imperative to do so. While COVID-19 may have accelerated the adoption of the virtual court room, that does not meet the demands of modern clients nor does it address the issue of an ever-increasing workload for judicial officers. One viable solution, according to Professor Susskind, is artificial intelligence (AI).
Does that mean C3PO is next for a judicial appointment?
Based on Professor Susskind’s years of research (he has had a long-standing interest in AI and the law, having completed his doctorate on the topic during the mid-1980s), his discussion of AI focusses on document analysis, machine prediction, legal question answering and document automation. Professor Susskind draws on various examples of where developments in AI have continued to surpass expectations. A “powerful” example that Professor Susskind refers to in Tomorrow’s Lawyers (noting that the most recent edition of the book was published in 2017) is Watson, IBM’s computer system that in 2011 during a live broadcast of Jeopardy! triumphed over two of the trivia show’s most successful contestants. This could only have been achieved with AI fusing language understanding, information retrieval, knowledge processing, speech synthesis and more.
Applying these principles of AI to the law may not be that far-fetched. Even in 1988, Professor Susskind had developed the world’s first commercial legal AI system, known as Latent Damage System, which advised on the law of limitation. The Latent Damage System was successful, given that it reduced research time from hours to minutes. Despite the success of such a system over 30 years ago, the issue remained that it was costly to build and maintain. This made it unappealing to firms which would have sacrificed hourly matter-based billing and instead incur expensive overheads to maintain the AI behind the system.
However, Professor Susskind notes that the legal world has moved on since those days.
For one thing, clients are expecting “more for less”. Professor Susskind draws from his empirical research which indicated that General Counsel were required to reduce their legal budgets by 30 to 50%, even though the compliance work has increased substantially. In a world where there is a competitive market for legal services, practitioners have to consider what they can offer, including reviewing whether the traditional model of time-based billing is the best model.
Another potential trigger to bring on more AI in the law is the ever-increasing workload on decision makers. In his address at the ABA conference, Professor Susskind referred to some mind boggling statistics, where in Brazil there is a backlog of almost 80 million lawsuits waiting for a final and binding decision, amounting to one outstanding lawsuit for each 2.6 Brazilians. This is despite Brazil spending almost 2% of its Gross Domestic Product with the Judiciary Branch, which is more than any other country in the world. Australia is thankfully not sharing the Brazilian experience but it ought to be a collective goal of the profession to avoid descending to such a diabolical situation. Furthermore, given large populous countries in the Asian Pacific region, including countries with some hallmarks of common law legal systems like in India, Brazil may already not be alone. If “throwing money” at the situation does not ameliorate the backlog, then perhaps Professor Susskind’s idea of AI decision making is not that disruptive given that it could accelerate the resolution of disputes.
What future is there for the bar then? If AI is the way, then is in-person advocacy and the services currently offered by barristers doomed to slide off into irrelevance?
Professor Susskind admits (he stresses that being legally trained means that he can take such a position) that as machines become increasingly capable, they will eat into lawyers’ jobs. This threat is more real for the next generation of practitioners, when the concept of being a lawyer may be radically different from now. Instead of practising law, those lawyers may be building the machines that practise law.
For the current bar, the threat may not be imminent but perhaps the redeployment of skills goes beyond being aware when one is muted during a virtual court room appearance. Ultimately, Professor Susskind makes the point that technology will remain and continue to develop. Therefore, unless retirement is imminent, all of us are still tomorrow’s barrister and that makes thinking about the modernisation of legal practice part of our evolution.
