Are litigators heading for extinction with the rise of technology assisted review, asks Caroline Field.
Richard and Daniel Susskind’s new book The Future of the Professions: How technology will transform the work of human experts (2015, Oxford University Press) is a thought-provoking instalment of their work to educate us on what the future may have in store for the legal (and other) professions. It asks professionals to take a long hard look at themselves and to decide whether a natural bias and resistance to change is preventing all others, ie non-professionals, from direct access to professional expertise.
Without doubt the dispute resolution landscape must change and is changing in a society where there is a real risk that legal and court services are becoming una ordable to many of their users. Most practitioners do (or should) support initiatives to improve access to justice for all, not just the wealthy few. Technology clearly has a role here but how big is that role?
A recently pledged £75m annual reform budget for civil family and tribunal work for the next ve years (with online dispute resolution as a likely centre-piece) demonstrates society’s commitment to an overhaul. Richard Susskind is chairing the Civil Justice Council’s Online Dispute Resolution Advisory Group and promises to push for an HM Online Court which helps parties in low value disputes resolve di erences largely without the intervention of human experts. The group draws support for their proposals from the 60 million disagreements among traders on eBay resolved annually using online dispute resolution.
Technology assisted review
In the mid-1990s, the profession balked at the idea that e-mail would be the principal means of communication between lawyer and client. The world is now reliant on electronic communication, with the volume of documentation generated and potentially relevant to any dispute (particularly in a commercial context) throwing up signi cant challenges to the way litigation has traditionally been conducted, most obviously in the practice of disclosure. A reasonable search for documents has for a long time involved practitioners looking at how technology can enable cost-effective search and review of potentially relevant documents. Technology assisted review (a form of articial intelligence) has become commonplace to limit the involvement of humans in identifying documents relevant to a dispute. Few would disagree that in the preparation for document-heavy litigation intelligent search systems can now out-perform junior lawyers and paralegals in reviewing large sets of documents and selecting the most relevant, particularly where the cost of a review of the full data set by individuals (charged on an hourly basis) is disproportionate to the issues in dispute. But the resulting data set must still be analysed, gaps in the story and patterns identified, argument formulated and a decision made based on carefully weighing up of the evidence thrown into the mix with other (witness) evidence. According to Professor Mehrabian, 93% of communication is non-verbal. Language is often used in a non-natural way. Can a computer really pick up on the subtleties of human interaction which are so often central to the disputes we work on and are trained to spot?
There is a huge leap from a system of resolving low value eBay trade disputes and complex claims involving signi cant disputes of fact where detailed evidence is necessary. True, not everything professionals do is expert and we must continue to nd ways of de-constructing our work to achieve e ciencies. We must push the judiciary to embrace change, understand the capabilities of technology and avoid a gulf between those in the know and those not. Politicians have recognised the importance of universal access to the internet. That is just a rst step.
Who is accountable?
While technology has its place, solicitors are held accountable by law and regulation. A sense of responsibility stems from it, together with the desire to see justice is done. Who is accountable where the solution is a purely technical one?
The Susskinds give the example of IBM’s system Watson which famously beat the best-ever human competitors on Jeopardy! Watson’s victory required advance natural language processing in a manner that the Susskinds believe soon could enable the provision of useful advice and the preparation of supporting documents in response to a description of di culties in natural language to a computer system on the internet. Is this enough? Disputes are often personal. Take, for example, the SME whose business and employees’ livelihoods are threatened because of unlawful competition.
At the risk of sounding like a naysayer and drawing on one of the common “anxieties and objections” to the declining role of human experts, personal interaction is essential in guiding a client through a complex dispute. The hard part of a lawyer’s role is not the legal analysis. It is the risk analysis, the application of practical experience, human psychology and unwavering support during the highs and lows which ensure a consistent matching of strategy with objectives (which often change).
Professionals have long been criticised for closely guarding their art but they speak as providers and potential users of their services. No-one knows what may be achieved in the future but, for now, I would no more want a computer to be my only aid through a complex legal dispute than I would want Watson on its own to guide me through a critical illness.
