This essay was the awarded the Second Place in In2Law's Essay Competition 2022.
By Tejas Vinay Deshpande
Word Count: 1498 (excluding citations, question statement and meta-data).
Citations created as per APA 7th Edition guidelines.
Our legal systems face multitudes of problems, stemming from backlogged courts, judicial vacancies, overburdened public defenders, discrimination in criminal prosecution and more (Lopez & Zarracina, 2017; Rudresh & Zaidi, 2016). While these are complex and multi-faceted problems, digitising the law is one concrete step towards resolving many of them. For this essay, digitisation of law is defined as an umbrella term referring to electronically assisted and automated dispute resolution, legal case management software suits and e-Discovery programmes for litigation. This essay examines the ramifications of digitisation of the law on citizens, lawyers and law firms, as well as the judiciary.
This essay argues in favour of digitising the law on 2 grounds, contending that its positive ramifications far outweigh its potential negatives. First, digitisation would make the legal system more time and cost efficient, secure and sustainable. This would fundamentally increase access to justice in society. Second, it would improve the quality of work in the legal system, through the use of Big Data powered analytics, Artificially Intelligent (AI) and Machine Learning (ML) models. This essay further addresses potential counter-arguments, before concluding that digitisation of the law is a crucial process for delivering justice, without which the modern legal system would be severely handicapped.
First, digitisation would make the legal system more time and cost efficient, secure and sustainable, thus increasing access to justice. Today, seeking justice comes at a high price, paid as both expensive legal fees and time spent waiting at back-logged courts (Bansal, 2016; Eisen et al., 2019; Gittins, 2017). Digitisation can mitigate these problems in the following ways.
Partial automation of dispute resolution is one way forward, as proven by China’s ‘Smart Court SoS’ model. It reduced a judge’s workload by one-third, saving 1.7 billion working hours in the legal system, from 2019 to 2021. The Chinese government claims that it saved more than USD $45 billion, which is equivalent to 50% of the total lawyers’ fees in China in 2021 (Kadam, 2022). Implementing AI-ML models to scour through multitudes of precedent, laws and facts that can provide ‘smart’ judgement recommendations could be one concrete step towards addressing back-logged courts in jurisdictions such as India, which had nearly 47 million cases pending as of May 2022 (Sumeda, 2022).
Legal case management software suits (such as App4Legal, Noble Justice, and Wrike) help address the 6 hours numerous lawyers waste weekly on document management issues that cost most large American firms USD 9000 per solicitor, per year (MetaJure Team, 2016). These suits can improve the law firm workflows by making document templating and review easier, streamlining collaboration and communication, improving file organisation and automating billing (Ezeobi, 2022; Thomson Reuters Legal, 2021). By digitising their business processes, law firms are likely to reduce the time spent on mundane tasks, reduce costs, and provide faster services to clients. Enabled by digitisation, and incentivised by reduced costs, few law firms (DirectLaw, SynchLaw, etc.) now deliver legal services exclusively online. A testament to the benefits of digitisation, an increasing number of law firms around the world have partnered with technology companies with lawyers to create digital solutions for their internal operations and clients (Tivix, 2020).
Digitisation of discovery in litigation, i.e. e-Discovery, provides increased security for the exchanged material, reduces costs and time spent on tracking, analysing and reviewing documents as well as providing access to file metadata. e-Discovery helped a South African law firm review nearly 500,000 documents in 5 working days, with just 4 reviewers, by automating the consolidation of information, removing repetitions, detecting irrelevant data, etc. (LexisNexis, 2021). This tool would significantly reduce the prohibitive final costs of litigation for most citizens.
Ideally, justice would always be served, within reasonable time periods, without restrictive pricing. Digitisation will enable our legal systems to shift in this direction.
Second, Digitisation of the law would improve the quality of work in the legal system.
Most lawyers always work, in good faith, to provide the best quality of services possible. However, human flaws hinder this effort. This could include random errors, diminished quality of work due to fatigue or lack of incentives, inherent blind spots and biases in lawyers. To address these issues, we can use recommendation engines to supplement the cognitive abilities of lawyers; for factual analysis, finding relevant case law, recommending lines of arguments in litigation, or suggesting judgements. These engines have better memories than humans (virtually unlimited storage), can be fed large amounts of information (Big Data) instantaneously, at will, and can tap into any part or all of their memories on command (natural language processing based retrieval). They don’t fatigue, can learn to make correlations and understand patterns from data (machine learning) and apply this to solve new problem statements (Artificial intelligence) (Whitney, 2017). Some successful examples include ROSS and QuickCheck.
ROSS, by drawing on extensive online databases, augments lawyers’ cognitive abilities. By mining data from innumerate text documents and analysing information, it helps lawyers make informed judgements about risks, costs, and litigation strategies in their cases (Mannes, 2017). Quick Check can extract the legal arguments from a user’s case brief and recommend relevant case law opinions (similar in both legal issue and facts) for lines of argument (Thomas et al., 2020). Traditionally, the process of factual analysis, identifying the most relevant case law and selecting the best suited lines of argument, takes days or even weeks. ROSS and QuickCheck improve the speed with which items of interest are found as well as their relevancy. These programmes outperform most paralegals and junior lawyers in performing these tedious and mechanical tasks. A testament to their success includes their usage by leading law firms such as Baker & Hostetler, Latham & Watkins and Sidley Austin as well as the millions of dollars they received in funding (Press Trust of India, 2016). Also, China’s Smart Court SoS (Judgement recommendation and processing engine) detects and rectifies human errors in verdicts and documents processed by courts in real time (IndiaAI, 2022).
Using technology to detect and rectify human errors and make recommendations to cover the gaps in human work will ameliorate the quality of service across all organs of our legal system.
A potential argument against digitisation would be that increased automation may reduce human involvement and oversight in the delivery of justice. This could prevent the law from evolving naturally, in synchronisation with value systems.
For instance, the British “common law” system was significantly shaped by case law and the doctrine of precedent, where judges in higher courts would declare new laws, amend, or provide new interpretations of statutory law. A classic example is Donoghue v Stevenson [1932] UKHL 100. In Donoghue, the judges deviated from most existing precedents, excluding the sole exception of George v. Skivington (1869) (Verma & Debnath, 2021; Yu, 1999). Here, judges established new principles and law, which changed the course of tort law in the UK. If this decision was based on a recommendation from a judgement recommendation system, these principles might not have been established and we probably would not have the law of torts as it exists today.
Judges play an undeniably vital role in shaping the law and adapting to changing circumstances that we must safeguard. If legal automation (especially judgement systems) are not adequately regulated by humans, and maintain regular internal self-learning and self-correcting processes, it could be detrimental to the delivery of justice.
Another potential counter argument is that the digitisation of the law may eventually render certain jobs redundant, resulting in short-term unemployment (Caserta, 2020). Law firms can adapt to this by changing their organisational structure, from a pyramid model, with an upward increase in skill, to a diamond-shaped model, with most of its employees not performing basic tasks. Firms can significantly reduce the number of junior lawyers. In the long run, the employment market will correct itself. The expanding field of technology shall create jobs and opportunities in catering to the legal industry, with law firms hiring legal technicians and technology firms hiring legal experts (Caserta, 2020). It will also push humans to engage more in deep work, rather than shallow repetitive tasks.
Last, perhaps digitisation of the legal system potentially exposes sensitive information to the risks of hacking and cyberattacks. However, state-of-the-art security systems exist today that are currently employed by governments, banks and businesses whose security and legitimacy ensure the functioning of the world. Adequate security protocols to prevent illegitimate access to data, paired with up-to-date regulatory frameworks governing the use of data by legitimate authorities, provide a reasonably strong sense of security in digitising the law.
Inarguably, the digitisation of the law has commenced across the globe. The digitisation of due diligence, contract review, legal research, e-discovery, prediction technology, and document automation is only becoming more sophisticated every day. Millions of dollars are being invested in legal technology, and even the Silicon Valley giants (Amazon, Google and Microsoft) have announced plans to develop legal products (Caserta, 2020).
In a world where the price of justice is prohibitively high, the digitisation of law is a mandatory and important process. Not only does it make justice more accessible, it increases the quality of our legal systems. Digitisation has revolutionised several human endeavours. If the law doesn’t adapt, it will fail to provide adequate dispute resolution and governance standards, eventually hindering human development. Thus, in conclusion, the potential positive ramifications of digitising the law far outweigh the negatives.
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References
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