All Aboard

In December 2015, Sydney hosted Blockchain Workshops (#BlockchainSYD). I understand that it was a great event. If you didn’t get to it, and fear you have missed the Blockchain wave, I would not panic. Like other tech, there might still be some waiting time before it takes over.

Consider the “flavour of the month“ Artificial Intelligence (AI). It’s finally getting some traction 30+ years after its success was touted as imminent. Yet around this time each year people are called upon to bravely predict next year’s tech. It is not a new phenomena.

“… while only 35% of (US) law firms are automated today, a full 75% are projected to be automated in just two years”
(J Gordon; THE NATIONAL LAW JOURNAL; 28 July 1986)

A forecast by the International Resource Development Inc estimated that the US market for Artificial Intelligence products and services would grow from $US66 million in 1983 to $US8.5 billion in 1993. A paper entitled “Legal and ethical issues in AI” by the Hon. Kirby J in THE COMPUTER LAW AND SECURITY REPORT; Vol 2 No 6; pp4-7, examined some of the implications of AI. Among the points made: A system with AP, AE and AI 2, (automated personality, automated emotionality and automated illogicality) might be seen as being equivalent to a human.

As co-editor with James Fitzsimons of the newsletter CompuLaw Digest which included 50+ abstracts of articles on legal tech and IT legal issues, each month for a decade from early 1985, we recorded the enthusiasm for AI. While the implementation of AI was not widespread, the commentary on it was, and much of it is still worth noting. Here is one of my favourite items:

Language, Communication, Computers and the Law

This philosophical and scholarly work examines the role of the computer in law and society. The role of the computer is merely an element in the communication process in which law is involved; instead of foisting the computer as an extra on an already outdated system of law, we should try with its help to rejuvenate the system. Rather than mechanize manual research, the real challenge is to re-examine the very ground on which we stand. For instance, by getting the computer to analyze statistically different elements of the judicial process, new light will be shed on the relationship between doctrine and judicial behaviour.

The problem is not to teach the computer to “think like a lawyer”, i.e. to reduce social to legal phenomena and solutions, but to reverse that process. The crucial question is not “are computers capable of legal reasoning?” but “what can be done effectively with computers and at what cost?”

The author also argues that the intuitive hunch of a good lawyer can never be embodied in a computer program, but it can in many cases be exercised more effectively with its help. The formal aspect of law is merely the tip of a social iceberg. Hence to simulate “legal” decisions requires more than a legal database.

The complexities of using computers to arrive at correct doctrinal decisions pale before the task of computing the underlying social considerations. This is not to say that the computer is useless for this purpose. Artificial intelligence can greatly enhance natural intelligence as long as it is not misused to replace it. (Samek; THE DALHOUSIE LAW JOURNAL June 1985 pp 195-210

In “Artificial intelligence comes of age” N. Blodgett in the ABA JOURNAL; 1 Jan. ’87; p70 observed that:

One day the professional standard of care may include consulting an expert system. Expert systems should be used as a starting point to help the lawyer analyse a case or make a decision. Not all a lawyer’s expertise can be embodied in the systems, nor is every area of law suited to expert systems.

One of the most advanced expert systems created to address a legal problem is called SAL which stands for System for Asbestos Litigation. It evaluates plaintiff’s claims for asbestos exposure. The system uses the facts of a particular case, along with the expertise and problem-solving techniques extracted from attorneys and claims adjusters, to produce a dollar value for the case. Conceivably, a lawyer who settles an asbestos case for a value below that recommended by SAL could be sued for malpractice.

Some of these old items are worth it for the title alone: “Will justice fall to bits?” by Alan Tyree; CURRENT AFFAIRS BULLETIN; March 1986; pp.13-18 suggested:

The use of legal expert systems is likely to go through 5 phases of use:

1. By professional lawyers in areas where they are not entirely up to date.
2. By paralegals where the amounts involved in a matter preclude the expense of a fully qualified lawyer.
3. Directly by non professional users – possibly to determine whether it is worth consulting a lawyer.
4. By non professional users to replace advice from professionals.
5. To resolve disputes: it will become an electronic judge.

One should consider that because of the costs involved, for many the choice may be between machine justice and no justice at all. Also the lack of human resources should be considered; cervical cancer could be virtually eliminated if it were possible to carry out sufficient Paps smear tests – at present it would take the entire medical establishment to do this.

The greatest hurdle for expert systems will be establishing sufficient control. Particularly when systems are used by non-professionals the advice given by expert systems is likely to be accepted uncritically.

It turns out that the greatest hurdle for expert systems are their “trainers”. P. Freeman in “Expert systems and the law” COMPUTERS AND LAW [UK]; Mar ’86; pp9-12 explained that:

“Expert systems are a limited application of artificial intelligence – reliance is on fixed rules rather than on some diffuse body of ‘common sense’. They are computer programs which embody ‘rules of thumb’ or ‘heuristics’ learnt by the experts from years of practical experience. Knowledge obtained from an expert is used to produce a ‘knowledge base’. Since the knowledge base must be built by a ‘knowledge engineer’ there is often a ‘knowledge acquisition bottleneck’.”

Experience has shown that there is also a knowledge maintenance challenge. That observation, confirmed by the brilliant Peter C Hart ten years later, accurately predicted it would be another 20 years before the legal profession in general really started to take IT seriously. The difference between AI in the past, and now: today’s AI is benefiting from self-learning helped by improved processing power, and open-sourced, internet-based platforms. But Legal AI is still in kindergarten so there is still plenty of time to catch that, and other IT-related waves headed our way.