Artificial Intelligence and Law

By Simon Tolson, Fenwick Elliott

First published in the Chartered Institution of Civil Engineering Surveyors (ICES) Construction Law Review, July 2016.

Computer use and digital databases of any real practical use started in the legal profession coincidentally from about the time when I was an undergraduate law student in 1979. Back in those days one had an “operator” and paid line time by the minute; it was hit and miss even in a university faculty, it was slow progress, and it was all code input-based one marvelled if anything useful came out, more often it didn’t.

I recall that Lexis started providing its services to the Law Society and university libraries in about 1983.  Then Windows 3.1 came on the scene in about 1993, Windows 95 arrived on the world stage the year before its name suggests, and by 1995 some lawyers like me became “mobile” with their legal data. I was using a Psion Organiser with a QWERTY keyboard with a comprehensive self-typed construction law database; no cut and paste then! Corporate systems started to become available in the late 1990s as the World Wide Web developed and steadily accelerated exponentially over the past 18 years or so.

I would say that in or about 1996 (the year I sent my first email), Fenwick Elliott was one of the first law firms to use it in London and boy was it slow (no fast broadband then), but we had the “big bang” when the legal profession and how it accessed material began to change forever. It changed law in a way nothing else had for c.300 years.

Simple memory typewriters were with us in 1983 and word processors in 1990, but processing power, the commercial emergence of email and personal computers and the internet have been the facilitators for what we see today; everything is digital and many of us work virtually paperless. Our desk is a dynamic creature that moves up and down, our ultra-flat twin screens and tablets etc. are where we scribe our real craft or to some sophistry!

Believe it or not law firms are really investing in artificial intelligence (AI), the capability of a machine(s) to imitate intelligent human behaviour. There has even been speculation that law is ripe for “Uberisation”1, becoming the next target of technological transformation. The Millennials generation is pushing the changes hardest and law firms are making a dash to harness the power of cognitive computing and the natural language processing capabilities of computers, investing heavily in AI to automate the mundane tasks that are part and parcel of the law and legal services. Professional services generally rely on a lot of data and information, and a relatively small amount of judgement, which means tasks can be speeded up considerably. However, robots are unlikely to replace lawyers in court, but they can prepare papers for hearings and do other “clever” things with massive data.

The recent media fever about AI has been inevitable. This vision has conceivably come a step closer with the arrival of IBM Watson and Richard Susskind’s latest book, The Future of the Professions, which predict an internet society with greater virtual interaction with professional services such as doctors, teachers, accountants, architects and lawyers.

Linklaters and Pinsent Masons are the latest law firms to announce publically their investment in AI, as the legal profession tries to automate the most mundane tasks that traditionally have been the preserve of more junior lawyers.

Pinsent Masons has developed a program that reads and analyses clauses in loan agreements. Its TermFrame system also helps guide lawyers through transactions and point them towards the correct precedents at each stage of a process.

Another law firm, Dentons, has set up NextLaw Labs,2 a virtual company which looks at the application of technology within the law. It has invested in ROSS,3 which is an IBM Watson4 powered legal adviser app that streamlines legal research, saving lawyers time and clients’ money.

BLP and Linklaters has signed on with developer RAVN5 and developed a computer program to sift through various UK and European regulatory registers to check client names for banks. In transactional work LONald can, for example, send an enquiry to Companies House to check if the address in a document matches the company number. If the address is out of date, the computer will flag it for review.  The team will then consider all flagged documents in one go at the review stage. It thus converts unstructured data (e.g. contracts, official copies) into structured output (e.g. a spreadsheet) in a fraction of the time (a few seconds) it takes a human and with a higher degree of accuracy! The lawyers then do the higher-level strategic review to make sure nothing is missed.

Professor Richard Susskind, who is also IT Adviser to the Lord Chief Justice, has predicted radical change in the legal sector, pointing out that intelligent search systems could now outperform junior lawyers and paralegals in reviewing large sets of documents and selecting the most relevant.

Susskind said at a conference 6 weeks ago6 that he believes the legal profession had five years to reinvent itself from being legal advisers to legal technologists and criticised law schools for “churning out 20th-century lawyers”.

He stated that over the course of the next decade, AI would move forward so quickly that systems themselves would be able to assess, diagnose and respond to the legal problems posed by clients.

But instead of suggesting that this was a threat to the profession, Susskind instead claimed that it was an opportunity to become engineers of knowledge, and to shape the future of the profession in a positive way.

“For the next five years the legal profession will work on using better human-resource models, delegate to paralegals, move to better locations and give lawyers far better systems,” he further stated.

“It is not that there are no jobs in the future, but the 2020s will be a decade of redeployment not unemployment. It is not an emergency but over the next five years we have to prepare. More and more legal services will be enabled by the support of new technology. You can say ‘that is for the technology industry to sort out’, or you can be part of the technology industry.”​

So where is all this headed? Well, for sure, away from where we are now. Much the same applies with how Building Information Modelling can expedite design improvement and aid the best selection of materials and or provide the opportunity of testing and assessing different design alternatives that may impact say on the energy performance of buildings. I know for a fact computer modelling techniques and stochastic7 analysis in hydrogeology is now helping developers address run off and drainage issues in the UK8 and provide real-time flood forecasting from catchment to national scales.

In the law text analytics and machine learning can be incredibly helpful in enabling the data to tell its story, and what we are finding is that computers are learning and in large data cases can be better than human lawyers, particularly tired lawyers.

Predictive coding enables users to sample data such as on a large project and identify what is relevant. Through sampling, the program is able to learn which documents are relevant. This process greatly reduces the time needed for e-discovery and document review because the program is searching for concepts as opposed to simple keywords.

Indeed our own Law Society president, Jonathan Smithers, is bang on the money on this issue.  He acknowledges we live in complicated times. Complicated times require the knowledge and advice of the global legal community, practical experts who can develop long-lasting solutions to help us mitigate the crisis micro- or macro-economically or geopolitically.

The legal community, however, is often called too late. We are involved when our clients have reached crisis. We are called to fire fight, we are the A&E department. At this point, the role of the legal professional may be rather limited.

Bright lawyers and astute law firms need to ask themselves, what are the common developing legal issues coming over the skyline? The impact of technology on the law is one such issue.

We live in a globalised world. The exponential growth of technology has created a new world order. It affects how we talk, how we learn, how we trade. The world is, quite simply, more interconnected than ever and using big data is key.

The future is not desolate. The globalised world has also brought hope and opportunity.

Technology has already restructured the way we do business and significantly impacted the practice of law.  We are already using technology to communicate with our clients more quickly, to manage their data and to make our businesses more efficient. Skype, instant messaging, WebEx online meetings and email are part of our everyday working lives.

AI will become more embedded in our lives. In many ways, it is already part of the way we interact with each other and with the world.

When EBay suggests products you may like, that is AI.

Siri on your iPhone, that’s also AI.

Anti-lock braking systems on cars and systems that wake you up as you nod off: AI.

It is already everywhere. But, what does this mean for lawyers?

Many of our business clients Google their legal problems before they come to see us. Pro bono portals are available, helping people to access legal advice early.

Of course self-diagnosis can never be a replacement for legal professionals any more than it can for physicians. The functions we carry out as lawyers extend far beyond dispensing black-letter legal advice.

Lawyers will, however, need to consider the ethical and legal dilemmas brought by AI in much the same way that architects and engineers are doing with Building Information Modelling and IP.

Lord Neuberger, president of the Supreme Court, only last week called for a debate on the ethical implications of AI and for “greater prominence” for ethics in legal training.9  Law schools will therefore need to pull up a sock or two. Lord Neuberger made a plea for “greater prominence” for ethics training both on university law courses and professional legal training courses.

Lord Neuberger said that the “earlier and more effectively” potential professional lawyers and advocates could be trained to “appreciate and understand the importance and nature of their ethical duties, the stronger a legal profession we will have, and the stronger the rule of law will be”.

Back in 2013 the judge urged the legal profession not to lose sight of its fundamental principles in the rush for modernisation, warning about the risks of pressure from “hard-nosed businessmen” who may invest in law firms.

The legal profession should be preparing for the problems and opportunities that may arise from such an enormous potential area of development, and one of the most difficult challenges will be to consider the potential ethical implications and challenges.

Whilst Neuberger does not fully embrace the Susskind view of future legal life, he does say that the Susskinds’ point out that this potential development has ethical as well as employment implications and they rightly call for a public debate on the issue.

Neuberger likewise warned of increased potential for ethical conflicts where alternative business structures (ABSs) were owned by non-lawyer investors who are “ultimately only concerned with the bottom line”. The investors will often have no experience of, or interest in, the lawyers’ ethical duties.

As computers take on more and more responsibility, one also has to ask the question of where the liability lies when things go wrong.

Volkswagen expects the first self-driving cars on the market by 201910. These self-driving systems may need to make split-second decisions that raise real legal questions.

Driverless vehicles can legally be tested on public roads in the UK today. The UK is uniquely positioned to become a premium global location for the development of these technologies.11

A child suddenly runs into the road and the car has to choose: hit the child or swerve into an oncoming truck.

How does the vehicle decide?

Who decides what the car decides? Ditto the JCB on a construction site: does it avoid the trench with a man in it or does it strike the building if it cannot avoid both?

And who is liable if it chooses the wrong one, the plant owner or the programmer?

Responding to the technological realities of the 21st century is an imperative.

These are questions for lawyers. It is for us, the legal experts, to answer these questions now.  Lawyers should not be fire-fighting. We must identify and solve the legal issues of tomorrow, now. And if we want to achieve this we must be:

• Explorers, not mere voyagers.
• Architects, not plain builders.
• On the front line, not in the pursers office.

We live in exciting times. The legal community must clinch this.

• We don’t have to repeat the past.
• We don’t have to relive the present.
• We can shape the future.
• If we don’t others will.
• Shepherd or sheep, it’s your choice.

The world will always be complicated, but if lawyers take the time to put their minds together, to learn from one another, they can fix pervasive problems like new technological solutions. For example, if come Brexit, how do we manage best all the changes to domestic laws?

If we are successful, we will make the legal profession worthy of this millennium, all the more so with regard to the construction industry.

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About Simon Tolson

• 1. A recent study by Jomati, Civilisation 2030: The Near Future for Law Firms, points out that, after long incubation and experimentation, “technology can suddenly race ahead at astonishing speed”.
• 2. A global collaborative innovation platform set up in May 2015 focused on developing, deploying and investing in new technologies and processes to transform the practice of law around the world. http://www.nextlawlabs.com/
• 3. ROSS is an artificially intelligent attorney to help you power through legal research. http://www.rossintelligence.com/lawyers/
• 4. http://www.ibm.com/smarterplanet/us/en/ibmwatson/. It is amazing that Watson analyses unstructured data, understands complex questions, and presents answers and solutions
• 5. RAVN helps you make sense of the explosion of Big Data in your organisation through state-of-the-art software solutions. https://www.ravn.co.uk/
• 6. Law Society’s Law Management Annual Conference: http://communities.lawsociety.org.uk/law-management/events/law-managemen...
• 7. Having a random probability distribution or pattern that may be analysed statistically but may not be predicted precisely.
• 8. The Groundwater Foundation, a non-profit organisation that educates people and inspires action to ensure sustainable, clean groundwater for future generations.
• 9. Lord Slynn memorial lecture, 15 June 2016: https://www.supremecourt.uk/docs/speech-160615.pdf
• 10. In April 2016 six convoys of semi-automated “smart” trucks arrived in Rotterdam’s harbour after an experiment its organisers (DAF, Daimler, Iveco, MAN, Scania and Volvo) say will revolutionise future road transport on Europe’s busy highways. Watch out for “truck platooning”.
• 11. The Department for Transport review of existing legislation found that our legal and regulatory framework is not a barrier to the testing of automated vehicles on public roads. Real-world testing of automated technologies is possible in the UK provided a test driver is present and takes responsibility for the safe operation of the vehicle; and that the vehicle can be used compatibly with road traffic law. North America has been the first country to introduce legislation to permit testing of automated vehicles, but only four states have done this. Fifteen states have rejected bills related to automated driving. In Europe, only Germany and Sweden are known to have completed a review of their legislation in this area.