Simon Tolson, in an edited version of an article that first appeared in the July 2016 Chartered Institution of Civil Engineering Surveyors Construction Law Review, discusses the rise of Artificial Intelligence within law.

Computer use and digital databases of any real practical use started in the legal profession coincidentally from about the time when I was an undergraduate law student in 1979. Back in those days one had an “operator” and paid line time by the minute; it was hit and miss even in a university faculty, it was slow progress, and it was all code input-based to search criteria.

By 1995 some lawyers like me became “mobile” with their legal data. I was using a Psion Organiser with a QWERTY keyboard with a comprehensive self-typed construction law database; no cut and paste then!

I would say that in or about 1996 (the year I sent my first email), Fenwick Elliott was one of the first law firms to use the internet in London and boy was it slow (no fast broadband then), but we had the “big bang” when the legal profession and how it accessed material began to change forever. It changed law in a way nothing else had for c.300 years. Simple memory typewriters were with us in 1983 and word processors in 1990, but processing power, the commercial emergence of email and personal computers and the internet have been the facilitators for what we see today; everything is digital and for many of us work is virtually paperless.

Artificial Intelligence today

Believe it or not law firms are really investing in Artificial Intelligence (“AI”), the capability of a machine(s) to imitate intelligent human behaviour. There has even been speculation that law is ripe for “Uberisation”,1 becoming the next target of technological transformation. The Millennials generation is pushing the changes hardest and law firms are making a dash to harness the power of cognitive computing and the natural language processing capabilities of computers, investing heavily in Artificial Intelligence to automate the mundane tasks that are part and parcel of the law and legal services. Professional services generally rely on a lot of data and information, and a relatively small amount of judgment, which means tasks can be speeded up considerably. However, robots are unlikely to replace lawyers in court, but they can prepare papers for hearings and do other “clever” things with massive data.

The recent media fever about AI has been inevitable. This vision has conceivably come a step closer with the arrival of IBM Watson and Professor Richard Susskind’s latest book, The Future of the Professions, which predicts an internet society with greater virtual interaction with professional services such as doctors, teachers, accountants, architects and lawyers.

In transactional work LONald can, for example, send an enquiry to Companies House to check if the address in a document matches the company number. If the address is out of date, the computer will flag it for review. The team will then consider all flagged documents in one go at the review stage. It thus converts unstructured data (e.g. contracts, official copies) into structured output (e.g. a spreadsheet) in a fraction of the time (a few seconds) it takes a human and with a higher degree of accuracy! The lawyers then do the higher-level strategic review to make sure nothing is missed.

Professor Richard Susskind, who is also IT Adviser to the Lord Chief Justice, has predicted radical change in the legal sector, pointing out that intelligent search systems could now outperform junior lawyers and paralegals in reviewing large sets of documents and selecting the most relevant.

Susskind said at a conference in April 20162 that he believes the legal profession had five years to reinvent itself from being legal advisers to legal technologists and criticised law schools for “churning out 20th century lawyers”. Over the course of the next decade, AI would move forward so quickly that systems themselves would be able to assess, diagnose and respond to the legal problems posed by clients. But instead of suggesting that this was a threat to the profession, Susskind instead claimed that it was an opportunity to become engineers of knowledge, and to shape the future of the profession in a positive way.

Where next?

So where is all this headed? Well, for sure, away from where we are now. Much the same applies with how Building Information Modelling can expedite design improvement and best selection of materials to provide the opportunity of testing and assessing different design alternatives that may impact on the energy performance of buildings.

In the law, text analytics and machine learning can be incredibly helpful in enabling the data to tell its story, and what we are finding is that computers are learning and in large data cases can be better than human lawyers, particularly tired lawyers. Predictive coding enables users to sample data such as on a large project and identify what is relevant. Through sampling, the program is able to learn which documents are relevant. This process greatly reduces the time needed for e-discovery and document review because the program is searching for concepts as opposed to simple keywords.

The legal community, however, is often called too late. We are involved when our clients have reached crisis. We are called to fire fight, we are the A&E department. At this point, the role of the legal professional may be rather limited. Bright lawyers and astute law firms need to ask themselves, what are the common developing legal issues coming over the skyline? The impact of technology on the law is one such issue.

We live in a globalised world. The exponential growth of technology has created a new world order. It affects how we talk, how we learn, how we trade. The world is, quite simply, more interconnected than ever and using big data is key. The future is not desolate. The globalised world has also brought hope and opportunity.

Technology has already restructured the way we do business and significantly impacted the practice of law. We are already using technology to communicate with our clients more quickly, to manage their data and to make our businesses more efficient. Skype, instant messaging, WebEx online meetings and email are part of our everyday working lives.

AI will become more embedded in our lives. In many ways, it is already part of the way we interact with each other and with the world:

  • When eBay suggests products you may like, that is AI;
  • Siri on your iPhone, that’s also AI;
  • Anti-lock braking systems on cars and systems that wake you up as you nod off: AI.

It is already everywhere. But, what does this mean for lawyers? Many of our business clients google their legal problems before they come to see us. Pro bono portals are available, helping people to access legal advice early. Of course self-diagnosis can never be a replacement for legal professionals any more than it can for physicians. The functions we carry out as lawyers extend far beyond dispensing black-letter legal advice. Lawyers will, however, need to consider the ethical and legal dilemmas brought by AI in much the same way that architects and engineers are doing with Building Information Modelling and IP.

Ethical duties

Lord Neuberger, president of the Supreme Court, has called for a debate on the ethical implications of AI and for “greater prominence” for ethics in legal training.3 Law schools will therefore need to pull up a sock or two. Lord Neuberger made a plea for “greater prominence” for ethics training both on university law courses and professional legal training courses. He said that the “earlier and more effectively” potential professional lawyers and advocates could be trained to “appreciate and understand the importance and nature of their ethical duties, the stronger a legal profession we will have, and the stronger the rule of law will be”.

Back in 2013 the Judge had urged the legal profession not to lose sight of its fundamental principles in the rush for modernisation, warning about the risks of pressure from “hard-nosed businessmen” who may invest in law firms. The legal profession should be preparing for the problems and opportunities that may arise from such an enormous potential area of development, and one of the most difficult challenges will be to consider the potential ethical implications and challenges.

Whilst Neuberger does not fully embrace the Susskind view of future legal life, he does say that Susskind’s point, that this potential development, has ethical as well as employment implications and that he rightly calls for a public debate on the issue. Neuberger likewise warned of increased potential for ethical conflicts where alternative business structures (“ABSs”) were owned by non-lawyer investors who are “ultimately only concerned with the bottom line”. The investors will often have no experience of, or interest in, the lawyers’ ethical duties.

When it all goes wrong

As computers take on more and more responsibility, one also has to ask the question of where the liability lies when things go wrong. Volkswagen expects the first self-driving cars on the market by 2019. These self-driving systems may need to make split-second decisions that raise real legal questions:

  • A child suddenly runs into the road and the car has to choose: hit the child or swerve into an oncoming truck;
  • How does the vehicle decide? Who decides what the car decides?
  • Ditto the JCB on a construction site: does it avoid the trench with a man in it or does it strike the building if it cannot avoid both?
  • And who is liable if it chooses the wrong one, the plant owner or the programmer?

Responding to the technological realities of the 21st century is an imperative. These are questions for lawyers. It is for us, the legal experts, to answer these questions now. Lawyers should not be fire fighting.

What about now?

We must identify and solve the legal issues of tomorrow, now. And if we want to achieve this we must be:

  • Explorers, not mere voyagers;
  • Architects, not plain builders;
  • On the front line, not in the purser’s office.

We live in exciting times. The legal community must clinch this.

  • We don’t have to repeat the past;
  • We don’t have to relive the present;
  • We can shape the future;
  • If we don’t others will.

The world will always be complicated, but if lawyers take the time to put their minds together, to learn from one another, they can fix pervasive problems like new technological solutions. For example, following Brexit, how do we manage best all the changes to domestic laws? If we are successful, we will make the legal profession worthy of this millennium, all the more so with regard to the construction industry.