Over the past decade, with the interception of technological advances, the legal profession has faced significant disruption resulting in major shifts in the nature and mode of legal work. Information technology and the internet, non-lawyers competing in the legal marketplace, and costs pressure on lawyers are factors causing a change to both the role of the lawyer and legal services.
The legal market now exists in a world of globalisation, IT, business management, risk management, and alternative sourcing. In this new technological landscape, the lawyer becomes the project manager, overseeing flexible decentralised teams of multi-skilled operators.
The role of the lawyer is not monolithic, legal work can be deconstructed into a set of tasks with many components able to be streamlined by technological applications. For example, power processing systems can store data and collate documents, or review and conduct research, and professionals currently co-exist with these technologies. Other technological applications are capable of producing wills, trust deeds, superannuation fund setups, business contracts, conveyancing documents, intervention order applications and other family law processes in Australia. Lawyering technologies such as document automation, decision engines, e-discovery tools, communication and collaboration tools, legal research tools, and legal expert systems help reduce the costs associated with these types of services.
Artificial intelligence and the lawyer
Technological systems involving complex algorithms and databases which might conceivably replicate the human mind are becoming increasingly capable of structuring transactions without the need for assistance from a lawyer.
The question is, will society accept computer-generated outcomes? It is one thing to receive valuable computer generated legal advice generated by an application of established rules to assumed facts, but it is another for litigants to accept a computers assessment of their credit and reliability, and credibility and reliability to that of opposing witnesses for instance.
Cases that involve human fact-finding could possibly escape computational law. Where facts are disputed and must be determined based on evidence, the presentational dimension of the evidence, oral evidence, and the intellectual processes involved in its evaluation and interpretation are very complex and are very much informed by human intuition and experience as to defy synthesisation by artificial intelligence.
On the other hand, intelligent algorithms can find information based on concepts and keywords agreed upon by the parties to a litigation. These services are further assisted by predictive coding which is a process whereby a machine learns from watching human behaviour and then applies what it learns. Machine learning algorithms are designed to gather data, analyse it, and then make a decision about what is relevant, this can be done very quickly.
That said, analytical jurisprudence is the part of legal reasoning that seeks to promote a systematic, theoretical and general understanding of issues such as the structure of legal rules and legal systems, the nature of legal reasoning, the role of logic in the law, and the interpretation of legislation and case law. Expert computational systems can only make assumptions about the nature of law and nature of legal reasoning, the development of these systems must be able to interpret jurisprudential implications as part of the process.
Technology service providers are becoming device/operation system/browser agnostic concepts such as ‘big data’ and ‘unstructured databases’ which allows more robust, higher performance and increasingly feature-rich applications. Clients as users of technology and the internet will have access to these applications reducing the requirement of the lawyer to perform certain tasks.
The lawyer/client relationship
Technological processes impact the interaction between the client and the firm and the client and the lawyer. Firms and clients benefit from information transparency and decisions can be made with the best available data, which has the potential of strengthening the relationship between the client and the firm. Risks are reduced because a machine makes fewer mistakes than humans, and transparency of client work is improved via matter-related data capable of being reported back to the client in real time.
The courts, lawyers, and clients are becoming increasingly connected and one example is in the Family Court. The court and family law practitioners have been trialling a system called ‘split-up’ which is a hybrid rule-based neural network system that can generate advice about how property from a marriage would likely be settled if the matter were determined by the court. Another example is the Commonwealth Courts Portal which provides a platform for users to access files online and information related to their own files in family law matters. In 2012 it was reported that 73,000 users registered with this service. The portal provides an ‘e-filing’ service, of which it was reported approximately 2000 documents were e-files per week.
Online courts and dispute resolution
eBay’s online dispute resolution service is a good example of an automated service that provides resolutions to low-level disputes between parties without the need of a lawyer.
An online court can be facilitated using the power of technology to provide court services using a virtual courtroom. Parties do not need to congregate physically, applying a new highly simplified set of rules and procedures of common practice across civil, family, and tribunals providing an affordable, quick, and intelligible to the non-lawyer and proportionate access to justice. People participate by video or online where the working of the court is done electronically. For example, filing of the document, as administration of the case, management of the case, making an argument and responding and decision making.
It is likely that fewer cases will reach judges and cost less by finding systematic online ways to avoiding and containing disputes and increase access to justice. Dispute resolution is largely adversarial, whereas containment is more of an inquisitorial process, and dispute avoidance is more of an informational service. The benefit for litigants is they can offer an alternative to resolution in ways they may not have had before.
Online legal service providers
Non-lawyers delving into the business of law is a clear departure from the traditional demeanour of legal services and presents competition for the lawyer. Online non-lawyer legal service providers that assist people to create their own legal documents and forms generally proclaim they do not provide legal representation, are not law firms and are not a substitute for a lawyer. Yet they provide essentially the same service intended to accomplish a specific legal purpose.
When legal service consumers retain a lawyer to create a legal document they get both the legal document that meets the legal needs and a guarantee of the result by a lawyer only a competent lawyer can provide, with malpractice insurance and professional responsibility requirement as a guarantee if something goes wrong. Further, lawyers are subject to different regulatory constraints and ethical rules, bodies of substantive law and authorised the practice of law statutes
Lisa Taylor – GTC Lawyers