AI can’t replace the human element in law

In 2013, a Wisconsin court in the US sentenced Eric L. Loomis to six years’ imprisonment for eluding police and driving a car without the consent of its owner. This was not controversial — until you consider the fact the judge did so based on a recommendation provided by a private software algorithm.

Criminal sentencing via a computer’s “predictive justice” mechanism is not the only artificial intelligence the legal field has adopted of late.

Thomson Reuters reported that investors had tripled their 2017 investment in legal technologies, achieving a total of $1 billion last year.

The legal and business press is humming with stories on legal tech start-ups, virtual assistants, contract review and e-discovery with a revolutionary ability to scan, sort and assess documents in a fraction of the time it takes the human mind.

Brimming with potential though it appears, the rise of technology and Big Data has acted as a catalyst for dystopian futurist fears that AI will become the ultimate replacement for lawyers, culling graduate numbers and gradually eroding the numbers of practising lawyers within the confines of big law. However, if such a day is indeed imminent, we are not there yet.

The latest large law survey conducted by ECP Legal and The Australian profiles the vital statistics of 44 of the nation’s leading law firms. It remains Australia’s best piece of intelligence when seeking to glean hiring and retention trends in private practice. The results for January to June demonstrate that recruitment remains on an upwards trajectory at all levels, especially within the non-partner fee-earners space. This is consistent with recent surveys.

On the transaction side, law firms are still reaping the benefits of a booming mergers and acquisitions market — up 195 per cent to more than $80bn in the 12 months to October last year, according to Dealogic.

A recent Pitcher Partners study showed deal value dropped in the first quarter by 11 per cent — with much of that investment uncertainty due to speculation about the federal election in May — but it is expected this will pick up in the second half of the year.

Infrastructure Australia, a federal government body, has projected 121 proposals with a $58bn project pipeline in its 2019 priority list as ones worthy of consideration for investment.

In addition to infrastructure, intellectual property, employment, hotels and leisure, and telecommunications also appear as strong sectors and practice areas with regards to legal hiring for this year.

The contentious half of the law firm ledger also remains strong.

The financial services royal commission has finished but the royal commission into aged care has begun and the royal commission into the disability sector will start soon. One of the repercussions of the financial services royal commission is that corporations now show a greater willingness to brief out matters concerning competition, regulation, disclosure and governance.

We have not yet reached the point where AI has replaced professionals. Indeed, it is our contention that it never will, and such an outcome is certainly not desirable.

Firms are embracing new technologies to provide the chance to better serve their clients by freeing up time to engage with higher-level tasks. Those that are recognised in the market as doing this well enjoy a key strategic advantage over rivals. Maintaining pace with technological advances is an essential key for law firms that want to escape the antiquated boundaries to which the profession is sometimes predisposed.

AI is designed to simulate human thought processes through data that consolidates relevant precedents, statutes and regulations and devises algorithms from this information.

However, while calculative elements are ever-present in the profession, taking into account certain factors and applying a certain test to reach a certain result, the law, as with economics, will ­always be an imperfect social ­science.

Indeed, society will be worse off if either of these two noble pursuits reach a point where data supersedes values on the “input” side.

Law firm leaders should be attired with a spreadsheet poking out from one hat and a raised eyebrow peeking beneath the second. The best firms reward lawyers for displaying “soft” skills: intuition, empathy, discretion. Leading firms make sure those who employ such skills are retained. If lawyers feel like a number on a spreadsheet, they will walk.

It was said best in Barbaro v The Queen, where the judges evalu­ated the impertinence of having a sentencing approach that lends itself to a formulaic outcome.

Fixing bounds to a sentence “wrongly suggests that sentencing is a mathematical exercise. Sentencing an offender is not, and cannot be undertaken as some exercise in addition or subtraction.”

Like sentencing, private practice relies heavily on numbers, equations and statistics. The crucial element, though, is humanity — and this humanity cannot be ­replaced.

Chantelle Masters a research assistant and Justin Whealing is a partner with ECP Legal.