“Our writing equipment takes part in forming our thoughts” – Friedrich Nietzsche,
(Reflecting on how his writing became colder, with shorter crisper sentences, not unlike iron, after he started using one of the first commercial typewriters)
A Historical Relationship
The legal profession was born under the sign of technological advancement. The first codices, the ancestor of the modern book, started to appear in the first couple of centuries of our era. Not long after that the first law school was established; the first written mention of the law school of Berytus (modern-day Beirut, Lebanon) dates from 238-239 AD. Fast forward a millennium, and the movable printing press is developed, without which the legal libraries of practices and firms could not have existed. We now find ourselves on the verge of another important change of another important change as AI looms over us. A threat it is, but not for obvious reasons: it will not take over us, instead we will surrender our autonomy to it, it will not take our jobs, but we will lose important skills as we automate more and more processes.
The advent of the typewriter has made calligraphy an obsolete skill, word processors diminished the importance of mastery over spelling and punctuation. Now, the advent of AI poses the same risk to legal research, the very aspect that distinguishes a pleading from empty rhetoric. Recently, an attorney of the State of New York ended submitting in a filling in federal court a legal brief containing six “bogus judicial decisions with bogus quotes and bogus internal citations”, according to Judge P. Kevin Castel. This was the result of said attorney using ChatGPT to supplement his legal research. Legal professionals did not criticize the use of AI, but only the attorney’s failure to independently verify. One must ask himself why would a professional commit such a basic mistake, the kind that an unpaid intern would get severely scolded for? The answer is clear for anybody who worked in a law firm: the need to save time.
The Shadow of AI Looms Over Us
According to Litify, a leading legal technology firm, per its 2023 State of AI Report, which consulted the opinions of legal professionals and firms regarding AI, almost 40% percent of respondents said they were using in their provision of legal services, and while most respondents were not using AI, nearly two thirds of interviewed professionals said it is important to work at an organization that embraces advanced technology[1]. The main arguments against the use of AI in the legal profession, as they result from the Litify Report, to revolve around security, privacy, ethical and regulatory concerns, coupled with commercial aspects such as not having the staff and/or budget to deploy AI, integrating into the current technological framework of the organization, and funnily enough, uncertainty as to how the use of AI should be billed to clients.
AI has become a transformative force in the legal profession, revolutionizing how lawyers handle tasks, manage information, and deliver legal services. One significant area of impact is in legal research and analysis. AI-powered platforms can quickly sift through vast volumes of legal documents, case law, and statutes to extract relevant information, leading to more efficient and accurate legal research. By automating these tasks, lawyers can focus on higher-value work, such as crafting legal strategies and providing personalized advice to clients.
Moreover, AI has found applications in contract analysis and review. Contract review can be time-consuming and prone to errors, but AI can now review contracts at remarkable speeds and identify critical clauses, potential risks, and compliance issues. This not only expedites the contract review process but also helps identify hidden risks that might have been overlooked otherwise. By leveraging AI, lawyers can minimize contract-related disputes and improve the overall quality of legal services they offer to their clients. Thus, it is not unconceivable that in the future there may be novel methods by which legal (e.g., contractual) relationships are formed and even managed.
AI’s influence may extend even further into predictive analytics for case outcomes and legal trends. By analysing historical data and patterns, AI algorithms can provide lawyers with insights into the potential outcomes of specific cases, allowing for more informed decision-making and accurate risk assessment. Additionally, AI can analyse vast amounts of legal data to identify emerging legal trends and changes in legislation, enabling lawyers to proactively adapt their strategies and stay ahead of the curve in an ever-changing legal landscape. However, as AI continues to be integrated into the legal profession, ethical considerations concerning data privacy, bias, and accountability also need to be carefully addressed to ensure responsible and fair use of AI technologies. The renowned legal futurist Richard Susskind believes that the use of AI in litigation will result in an increase of alternative dispute resolution practices[2]. Furthermore, Susskind argues that a possible new professions that will may arise in the future as result of the interplay of law and IT, such as (to name a few):
– Legal knowledge engineer: someone who designs and builds computer systems that can help automate legal processes and decision-making;
– Legal project manager: someone who manages legal projects from start to finish, ensuring that they are completed on time and within budget;
– Legal project manager: someone who manages legal projects from start to finish, ensuring that they are completed on time and within budget;
– Legal informatics specialist: someone who combines legal knowledge with expertise in computer science and information technology to develop new tools and systems for legal research and analysis.
Recent Responses to Disruptive Tech
Even though the above might make one thing that the legal profession is heading into a brave new world, the last century is a testament to how adaptable lawyers are to disruptive technology. Since the introduction of electronic law libraries such as LexisNexis and Westlaw in the mid-1970s, the trend has been to view the time spent conducting legal research as an overhead cost to be incurred by the firm, instead of a service to be charged to the client. The turning point for this is symbolized in the American Bar Association’s ethics opinion of 1993 on cost recovery in which it famously stated that “the lawyer’s stock in trade is the sale of legal services, not photocopy paper, tuna fish sandwiches, computer time or messenger services”. Though firms suffered a loss in the short-term, many lawyers welcomed this development as it allowed them to conduct more in-depth and thorough research without the fear of having to recuperate costs. Nowadays, access to e-libraries is seen by most firms as the cost of doing business[3].
When the Richard Susskind predicted in the mid-1990s that email will become the preferred form of communication between lawyers and clients, the Law Society of England & Wales scoffed at the very idea. Yet, this advancement ended up not being the time saver it should have been. The wasted time answering inane follow-up questions coupled with the stress of having to reply to client queries immediately are a far cry from the utopian dreams of instant communication[4].
Going forward: productivity or gain?
Going forward, lawyers must have a proactive approach to technology. We must ask ourselves: How will this new technology make me use my professional time gainfully? Please note that that we did not use “productively” because productivity as a metric is quite illusory on an individual level. A lot of our professional lives are wasted performed tasks for the sake of being productive, but in the long-run our practice, enterprise, or organization gains very little from it, as is time wasted in drawn-out client communications.
Finally, we must accept that certain professional skills are not as valuable as they once were, but their commercial value should not be the only metric an organisation (or individual uses) when deciding to invest in them. Instead of focusing on what gets us by in our daily tasks, we must focus on developing our uniquely human skills, such as the ability to think critically and be creative. But these abilities are empty without theoretical knowledge, attention to detail, and communication skills. The time we save because of technology should be actively used to invest in ourselves as into becoming more complete human beings, and in the long we believe that this will make one a better lawyer.
Thus, as AI looms over us, we must remind ourselves that we are a humanistic profession. Thus, we must focus on what makes us valuable as human professional. Yes, we must focus on the outcome, delivering quality legal services, but with automation posing the risk of turning us into mere technicians, we must use the time we save to develop ourselves professionally in an antifragile manner. To adapt, lawyers might have to become take on skills that belonged to engineers and technicians, yet they should not be at the expense of classical humanistic trivium of rhetoric, logic and grammar.
[1] Lawyer cites fake cases generated by ChatGPT in legal brief | Legal Dive
[2] Inside Track: Still Charging Clients for Legal Research? You Might Want to Rethink That: (wisbar.org)
[3] Tomorrow’s Lawyers: An Introduction to your Future, by Richard Susskind, Oxford University Press (2023)
[4] The Future of the Professions: How Technology Will Transform the Work of Human Experts, by Richard Susskind, Daniel Susskind, Oxford University Press (2015)
Ștefan Baciu, Consultant CMS Cameron McKenna Nabarro Olswang LLP SCP
