The Artificially Intelligent Lawyer

In the last few months I have read several articles that suggested that artificial intelligence will soon transform the practice of law. The general spin of the articles was that artificial intelligence would eventually take over many if not most of the tasks currently performed by lawyers and perform those tasks much better than we mere mortals.

Forgive me if I question the validity of this idea. It is not that I am anti-tech or just too old to appreciate what technology can do.  To the contrary I have been a user of technology all my professional life and I fully appreciate that it has exponentially increased my productivity and reduced my costs.

When I started my career as a lawyer, I dictated to a secretary who took my words down in shorthand and typed them up. She made copies using carbon paper. My first personal computer was an Apple II and later the first Macintosh.  Over the years, using ever better personal computers, my personal productivity has greatly increased and the quality of the work that I put out has gotten better and better.

So I certainly appreciate that technology can be a tool that helps lawyers perform better. But the idea that tech will replace lawyers or do some of the tasks that lawyers do, makes me pause.

I certainly am not the best lawyer who ever wrote a contract or legal brief.  I fully acknowledge that over time, I got better at both by working with and often against lawyers who were better than I was. Lawyers learn from each other.  So I question the idea that machines can learn how to be better lawyers much faster than human beings and that they will quite easily surpass the best of us, if they do not interact with lawyers.

I acknowledge that a computer can research the universe of case law on any subject far better and much faster than I can. I will admit that a computer can assemble those cases into a brief that will be more on point than anything that I can write.  But the best brief is not always the one that carries the day.

Years ago, in the days before personal computers, I had dinner with a single practitioner who had a rural, small town practice.  He was fresh off a victory against the largest law firm in his state in a contested land use matter.  He was complimenting the brief that the other firm had filed, noting that it was extremely well researched and had included myriad footnotes citing cases and authorities from all 50 states. He told me that he thought that the brief was good enough to be published as a law review article.

His own brief had cited a single legal treatise and the cases in it. He was successful because the nearest law library was two hours away and in that small town that treatise was “all the judge had and all the judge used.”

If an intelligent computer is writing a brief, then it is fair to assume that eventually it will put out the same brief on the same points of law for all for cases with similar facts and issues.  It is fair to say that the computer should make the “best” argument every time.

As long as we are still arguing cases in front of judges who are not computers, knowing the arguments to which a particular judge might be receptive can be at least as important as knowing the best arguments that could be made. Trial judges are not perfect and not uniform in their interpretation of the law.  I cannot imagine how a computer will input information about a particular judge’s preferences, prejudices or idiosyncrasies.

I spent a lot of years doing arbitrations at FINRA over investments that went bad. Both the plaintiff’s bar and the defense bar practicing in these forums is pretty small and I would see the same firms and often the same lawyers on the opposite side of a lot of cases.

A lot of defense firms have a playbook. They know what arguments they are going to make to the arbitrators and what questions they are going to ask witnesses in every case with a similar fact pattern. After a while, I got to know the playbook used by different defense firms.  Knowing what a specific defense lawyer was likely to ask helped me to prepare witnesses.

Knowing what these lawyers were likely to argue in rebuttal of the arguments I was making caused me to change the emphasis of my arguments, case to case.  I would sometimes try two or more cases involving the same investment differently, just to keep the opposing lawyer a little off base.

Seeing the same experts used again and again helped me to understand where they were strong and where they were weak.  Will an artificially intelligent computer ever get intelligent enough to understand how an individual firm is likely to defend a case or how an individual expert is likely to respond to cross-examination?

When I write a contract I do not just put boilerplate together. I try to understand what the client needs and expects from the underlying transaction.  Part of it is trying to predict the future; understanding what might precipitate a breach by either party or how a court might interpret the language that I am putting into the contract should the need arise.

The law is dynamic; it evolves. Will a computer actually be able to see trends in the law and to predict how it is likely to evolve?  Will a computer be able to disregard decisions from another era when attitudes, statutes or procedures were different?

Juries are often hard to predict even after the trial. If you do not believe me, ask any lawyer who has spent time pacing the courthouse hallways waiting for a jury to deliberate. If you’ve done it enough, you have certainly been surprised by a jury’s verdict, probably more than once.

More importantly, will a computer be able to explain to a client the emotional side of writing a will, getting a divorce or  filing a lawsuit against a  family member?  Having those conversations is part of the practice of law and it takes some amount of “emotional” intelligence to do them well.

Nothing that I have read about artificial intelligence indicates to me that this type of “artificial   emotional intelligence” is in the offing. Rather, artificial intelligence is the ability of a machine to analyze and assimilate data and to draw logical and rational conclusions from that data. That may help some, but it does not replace the very human interactions that clients have with their lawyers. If clients were always logical and rational they would not need lawyers in the first place.