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Disrupting the Law - Dr Mark Burgin

22/07/21. Dr Mark Burgin BM BCh (oxon) MRCGP takes a wry look at how the latest developments in AI technology could be used to create a cheaper, quicker and better legal system.

There are several changes which suggest that the legal system is ready to be disrupted by large IT companies using the new AI technologies. Document only legal cases, the ability of AI to mimic debate have joined the technologies of powerful advertising and computer-generated documents to make change possible. The only step that is still necessary is fixed price expert reports dealing with standardised issues. Until recently this advance has eluded the expert witness industry.

To a potential disrupter there is no difference between family law, criminal law or clinical negligence. All legal cases involve the same processes, the initial phases, getting expert witness reports and arguing the case. The area that prevents widespread disruption is expert reports because they are rarely straightforward. They may answer the wrong questions, give inconsistent answers and there is usually disagreement between experts.

This does not mean that lawyers will not be required post disruption, far from it, but the lawyers who work in the future must be able to use AI. A lawyer working with AI will be able to run a case in a fraction of the time (typically 15%) compared with a standard lawyer. The way that they work will change with more time spent on ‘clever’ tasks and less time actually reading or drafting documents. The IT will be able to request and process documents leaving the lawyer free to make the decisions.

The initial phases

The internet has globalised advertising and the top websites can siphon off a significant percentage of the available work. Many litigants choose their legal representation from popular internet search engines or social media platforms. As apps grow in importance there will be increasing pressure upon local firms to provide an Uber, Deliveroo or Just eat type of service. The customer will choose the service from an App and the solicitor practices will provide the service often with conditions.

Apps trade off both their own reputation and the reputation of the firm that they employ. This means that even the most dominant legal providers will find themselves increasingly dependent upon the App. Solicitors may have disliked case management companies often for good reason, but they will loathe the App. Cost pressure is only one of the many issues that will make the solicitors’ lives less pleasant and decrease the rewards.

The App will alter the way that evidence is gathered by a mixture of linking with other Apps, voice recognition and the latest advances in data mining free text. The App will control the evidence and thus have the power to transfer a client if the lawyer does not play ball. Several AI groups are creating programs that give the impression of understanding what a person is saying. It is no longer necessary for the first contact to be human or even a set of questions. The App will be able to suggest answers and options based upon inter alia the person’s use of social media.

Expert evidence

Experts are asked to provide evidence and opinions in areas were there is uncertainty and recent work on legal primers suggest that experts recycle their opinions. Where the question is generalisable there should be a methodology which gives the best answers. Here ‘best’ means answers that the court can most easily use to decide the case not the technically most right answer. It will be still some time before AI can find the answer, but methods are starting to be understood.

Although experts will argue that they take many aspects into account their opinions can be predicted from a small number of variables. When large numbers of reports are seen together patterns appear both within one expert’s work and between experts. The variables that actually influence experts are often inconsistent with the experts’ stated reasons. Common problems are e.g. tending to a particular value, having a moral point of view or doing as their IP tells them to.

Analyses show that some experts avoid these problems and use methodologies that are robust and balanced. These experts produce reports that properly assist the court and fall into two different groups. The first is a pattern of insight where clues from the evidence are woven into a compelling tale, the second is a brute force approach looking at everything before coming to a conclusion. The reader will not be surprised to know that AI is becoming better at the latter but making little progress of the former.

Arguing the case

The solicitor and barrister work together to produce what is known as an ‘arguable case’ and from it the barrister writes a ‘skeleton’. These processes might be seen as well outside of what IT can do at present but with big data a generalised answer can be found to the methodology. The AI could present a selection of arguments as options for the lawyers to choose from, imagine a great library of arguments with the best ones selected for the client. The best lawyers will be those best at selecting from the possible solutions using AI built with the biggest database.

One of the greatest barriers to progress is that, until recently, all evidence was provided in large paper court bundles. Now that the evidence is at least available electronically even pictures of typed words can be read using optical character recognition. As original digital documents become available (rather than printed onto paper and then scanned back in) the accuracy of the automatic processing will improve. In the near future large databases of different documents to train AI on will be available.

Many barristers use fallacies because they both make the asker appear more knowledgeable than they are whilst being difficult to answer. To AI this is just another type of method that is used, programs can create fallacies as easily as any other type of argument. Some would argue that it is time for barristers to clean up their act before the machine reveals their secret. My opinion is that ensuring that every litigant has access to the same arguments will go a long way towards removing unfairness.

Conclusions

It is inevitable that the law will be disrupted in the same way as retail, logistics, communication and knowledge over the next decade. The law has resisted the move into the 21st century by keeping paper well beyond all reason and ongoing difficulties with expert witnesses. As paper is being replaced by electronic records they will become the big data for the next generation of AI. Once the methodology is understood, collecting the evidence will become more efficient, poor expert’s reports will be robustly challenged and the arguments will be selected rather than constructed.

If one lawyer can do the work of seven then many of the paralegal jobs will disappear, first in legal practices that embrace these AI systems and then in all practices as these first practices dominate the landscape. The alternative will be instructed via an App that controls every part of the process and may even tell the lawyers how to run the case. On the other hand those who are working in the industry will have more complex tasks and decisions to make. Cases are likely to settled quicker so that individual lawyer’s performance can be monitored in real time.

For those who wish to slow down the disrupters it is probably too late to insist that that all documents are printed on paper and put into folders. The final barrier that disrupters face is the expert witness who writes a chaotic and complex report. Even if the other side are using the most up to date technology their AI will not be able to understand the expert’s report. Their costs will rise as they need to go back to getting a human read the report. Experts who write comprehensive reports that deal with all the issues are bringing the day of disruption closer.

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

This is part of a series of articles by Dr. Mark Burgin. The opinions expressed in this article are the author's own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand.

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The opinions expressed in the articles are the authors' own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand. 

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