With rapid advancements in AI, and its integration into our daily lives from virtual assistants like Siri and Alexa to social media algorithms that show us content we actually want to see, we are all wondering how far it can go. In the legal space, AI has already begun to make its mark with its abilities to speed up discovery and use predictive analytics to assist in litigation, as we highlighted in our previous blog. One area of fascination for the legal community is exactly how far AI could take legal judgment: after all, if ChatGPT can answer a question, could it answer a legal conundrum...could AI provide a legitimate answer, for instance, to the case of the Speluncean Explorers? In this blog, we will explore the transformative potential of AI in the decision-making processes, diving into the intriguing question: How far could AI judgment go and how far might we want it to go? We’ll examine the distinct qualities of AI and human judgment, and consider the implications and challenges of embracing AI in the judicial process.
While AI possesses notable advantages, like its ability to process far more information at a higher pace than humans, it is crucial to acknowledge its distinctiveness from human judgment, or perhaps, our own appreciation for that distinctiveness. AI can be taught to make decisions based on evidence provided in a case, but the fundamental questions arises, how far would we want that to go—would we want to have an AI make legally binding decisions? Consider your own appetite for submitting a dispute to an AI over a human judge...perhaps you've used Paypal's dispute resolution helper to get back a few dollars, but would you trust it with a few million? If not, why not? These considerations go to the heart of the AI debate as it concerns legal judgment.
One of the significant benefits of AI is its ability to make decisions based on clear rules and objective criteria. Sound familiar? Isn't the law ‘reason, free of passion?’ But while AI relies on algorithms and a meticulous analysis of facts, it is important to note that it can have biases, which come from the data that the machine learning models are built from, and if not screened properly, allows for unconscious biases to become built into the AI. This begs the question, is AI any better than human judgment? At the moment, AI, like humans, may exhibit bias. However, AI built on unbiased data, set guidelines, and with continual coaching, could learn to recognize bias and point it out to humans, and as it continues to learn, eventually combat them on its own. Nevertheless, it’s important to strike a balance. While AI's capacity for consistent, evidence-based decision making is commendable, the courtroom often demands a nuanced understanding of the complexities, emotional aspects, and societal implications associated with a case. After all, if Dickens has taught us anything, it is that without 'equity' the rigid application of the law can be as destructive a force as the wrong it seeks to right. Accordingly, the integration of AI into the legal profession must navigate this delicate equilibrium between the advantages of clear rule-based decision making and our need for ‘understanding’ and interpretation.
Moreover, AI, in its formative states, has limitations — ghosts in the machine that still puzzle engineers. The known possibility of AI systems to generate false or misleading information, known as "hallucinations," poses a significant challenge. In addition, the art of persuasion and the presentation of arguments, central to present day litigation, would, at least on paper, be superfluous to AI’s decision-making process. Accordingly, would the general population be happy in the knowledge that their disputes were going to be determined solely by the strength of evidence — or do the persuasive skills of lawyers still play a pivotal role in our appreciation of justice? Is this appreciation weighted in favor of plaintiffs or defendants, or both? These are pertinent issues that will continue to evolve as AI develops.
Notwithstanding the debate, ‘judicial’ AI has already been implemented in some instances to assist with decision-making. For example, Estonia has implemented an AI judge, primarily handling cases involving amounts under 7000 euros. While this threshold may seem relatively small, it raises important considerations about the applicability of AI judgment in different scenarios. For instance, let's consider a hypothetical case involving a contractual dispute of $10 million. In this scenario, speed and efficacy may be paramount. Accordingly, AI's ability to swiftly process vast amounts of data and identify relevant precedents could be a valuable attraction along the same lines as adjudication. It could, with contractual guardrails, significantly expedite the resolution of these types of cases. However, would the same be true for matters involving complex emotions, subjective judgment, or the weighing of more intangible factors such as equity and emotional response — in such cases would the human touch be preferable? In such instances, would parties feel more or less confident submitting their case before a human judge? Are humans uniquely equipped to understand what technology, at present, may not? Striking the right balance between AI and human judgment in the legal profession remains a debatable point, but one that will challenge our conceptions of legal judgment and the advice lawyers dispense to clients relating to the merits of various forms of dispute resolution — no different, perhaps, from the consideration of whether or not to resolve a matter in court or in an alternative dispute resolution procedure.
In conclusion, the transformative potential of AI in the legal realm is undeniable. It can enhance efficiency, eliminate the need for emotional response to evidence, and expedite processes. However, the integration of AI in judgment must, as with all matters involving disputes, be approached with care. As machine learning develops, there may be cases where human judgment, with its nuanced understanding, empathy, and contextual analysis, remains irreplaceable, and matters where its appreciation and impersonal interpretation of vast quantities of data is preferable. Much will depend on the lawyers ability to understand and advise their client as to the most expeditious mechanism for dispute resolution. Here then, as we consider the implications of AI, do we find the essential piece of the tech puzzle — the lawyer. However you cut it, a lawyer’s ability to advise their client will be ever more paramount and those lawyers that engage with AI now will emerge triumphant in the arms race for retaining and generating new business.