By Lance Eliot.
Let’s discuss Artificial Intelligence (AI).
Most lawyers have undoubtedly heard about or even directly experienced the use of AI-infused apps in their everyday lives. The use of facial recognition to unlock your smartphone and the anticipated IRS-required facial recognition to access your personal tax records is technologically made feasible due to AI capabilities, like it or not.
When you speak to Alexa or say hello to your Google conversational device, you are making use of AI-based Natural Language Processing (NLP) that translates your spoken words and attempts to affably interact with you.
In brief, AI is here to stay and will steadily continue to advance. It will become embedded into all manner of systems and devices. There will be no viable means of escaping the ubiquity that AI capabilities will power amongst the myriad of daily services and goods that we all consume.
Shifting focus, consider how AI is entering into the legal domain.
Perhaps somewhat surprisingly, those deeply immersed in the legal field are oftentimes only vaguely aware of how AI is inexorably getting intertwined within the practice of law and the future of law itself. This is easy to understand as AI has only been scratching at the edges of the legal realm and just inching its way in.
Furthermore, an oft-stated axiom about the legal arena is that it seems to be one of the last sectors or industries to generally embrace technology all told. Tried and true methods of using paper-based approaches or staying the course with faxes are seemingly hard to give up. Suspicions about using new technology are at times perhaps justified per overly steep learning curves or due to earnest qualms about cybersecurity vulnerabilities, yet meanwhile advancing tech typically referred to as LegalTech continues to inexorably gain traction and is being intricately woven into the underlying fabric of modern-day legal offices.
Where there is LegalTech, there will eventually also be AI.
That seemingly brazen precept is altogether straightforward. Whatever type of legal aiding piece of automation you might envision or seek to obtain will ultimately have AI included. Doing so will boost ease of use, proffering cognitive-like sensibilities, and make legal work more productive and efficient (assuming the AI is judiciously included and equally wisely utilized by the legal teams). At times, the AI will be somewhat awkwardly bolted onto a legal tool that otherwise has already been in existence and needs to after-the-fact bolster its functionality. In other instances, the AI will be built into a legal tool from the ground up, serving as the cornerstone for the resultant legal app.
But before we get ahead of ourselves regarding this look at AI in the law, we need to ensure that the big picture is on display. To do this, put your mind toward the idea of a two-sided coin.
The Two-Sided Coin Of AI In The Law
Please be aware that there are two major ways to intertwine AI and the law: (1) AI as applied to the law and the practice of law, (2) Law as applied to the advent of AI. You might say that they are two sides of the same coin.
In the first instance, lawyers and legal scholars emphasize the use of AI as applied to the law, which I’ll signify as the so-called robo-lawyer, robo-judge, robo-juror, and the like kinds of aspirations. Note that I am not a fan of that robo verbiage, but it is admittedly a quick way to invoke the imagery of what applied AI is ultimately aiming to do.
The second instance consists of applying the law to AI, such as ascertaining how our laws and regulations should be adjusted or crafted anew to cope with the burgeoning use of AI throughout society. This is construed as using legal acumen to figure out the appropriate means of governing AI.
Much of the flashy aspects about AI-in-the-law stems from the application of AI into the law (that’s the first case indicated above). Especially popular ways of applying AI in the law consist of infusing Natural Language Processing (NLP) capabilities into the arduous chore of doing e-Discovery (i.e., AI-based NLP is especially useful when dealing with large-scale narrative-oriented datasets that require extensive and otherwise laborious by-hand legal discovery efforts). And you are perhaps familiar with the use of AI for aiding in examining and composing legal contracts. There are lots of these infusions taking place of plopping AI techniques and technologies into the carrying out of conventional legal tasks.
The use of AI as added onto or embedded into LegalTech is the most commonly noticed facet of AI in the law.
Get ready though for the next boon, namely the need to apply the law to AI.
This is gradually gaining notable ground and outstretched headlines.
This is partially due to the rampant and uncontrolled promulgating of AI that has showcased seedy and untoward capacities. The recent era of AI began with a rousing cheer that AI would be abundantly good for society, but quickly discovered that there is the grimy underbelly of AI too. AI systems are now suspect right away, often embedding contemptible biases in factors such as race, gender, etc.
As a result, the application of the law to AI is garnering a lot of steam.
Lawyers are needed that understand the in’s and out’s of AI. What weaknesses of AI are exploitable by evildoers and garner legal exposures accordingly? How can laws be crafted to stymy the AI For Bad emergence? Will such laws be crafted to keep AI innovation steaming ahead or will new regulations undercut the advantages of AI?
You see, some rightfully worry that the wrong kind of laws, though perhaps created with the most earnest of intentions, will ostensibly kill the golden goose.
Generally, AI-infused systems have the upside of potentially being better at what they do and are more societally beneficial than ordinary tech, but they also spur the chances of violating the four key principles of embodying what is handily abbreviated as FACT, namely that AI ensures fairness, accountability, transparency, and ethical conduct in its computational actions.
There are many efforts underway to draft and enact laws specifically targeting the AI realm, occurring at the federal level and the states level (plus internationally too)
Lawyers are needed to aid in the creation and passage of such laws, plus will later be needed once such laws are put onto the books to help interpret and adjust those laws.
Consider another important avenue that will require attorneys with legal-oriented AI-savviness.
Who is to be held responsible for AI that goes astray and performs untoward actions?
The typically knee-jerk answer is that AI is the responsible party. The AI is somehow assumed to embody a semblance of human agency. We don’t have that kind of AI these days. We do not have sentient AI. We don’t know if AI sentience is even possible. Claims that the AI has acted of its own will are relatively disingenuous at this time (though, it is hard to predict what the future might hold, which of course the aspirational goal of AI researchers is to someday attain sentient AI).
The gist is that there are humans that set up the AI and put it into use.
Legally, we presumably would seek redress from those that established the AI or are maintaining or otherwise fostering the AI. Companies that have crafted AI systems will need lawyers that know how to internally guide the AI building efforts to minimize AI-arising legal problems down the road. Firms that have already put forth AI apps are likely to find themselves facing legal wranglings when the AI they’ve released fails to abide by the fairness and allied precepts.
Lawyers will inarguably be needed by those companies as they fend off legal challenges.
Meanwhile, individuals that believe they have been wronged by the AI are apt to seek legal representation and legal advice about how to proceed with a legal case against those AI-producing or AI-using firms. The overarching notion is that lawyers versed in the legal machinations associated with AI systems will increasingly be sought for legal cases entailing AI that goes off the rails.
A final remark, for now, might spur added mindfulness for you about the heightening significance of AI in the law.
Some would vigorously argue that lawyers are professionally obligated to know about AI in the law by the very canons of legal conduct as required by the ABA Model of Rules, particularly pertaining to the venerated Duty of Competence. A somewhat admittedly under-the-radar resolution of the ABA declared this rule: “RESOLVED, That the American Bar Association urges courts and lawyers to address the emerging ethical and legal issues related to the usage of artificial intelligence (“AI”) in the practice of law including: (1) bias, explainability, and transparency of automated decisions made by AI; (2) ethical and beneficial usage of AI; and (3) controls and oversight of AI and the vendors that provide AI” (per American Bar Association, House of Delegates)
This provides extra fodder for the assertion that attorneys ought to be immersing themselves to some reasonable degree into the AI-in-the-law realm.
Notice that I said that legal professionals can aim to be reasonably versed.
One false objection by some is that getting into the AI topic requires a nerd-like grandiose high-tech background or perhaps entails doing arcane computer programming akin to a super techies skillset. Not so. Though digging deeply into the tech might be desired by some lawyers, there is no such necessity for those that want to be less entrenched but yet also still be able to sufficiently partake in the AI-in-the-law facets (not everyone has to be a lawyers-that-code adoptee).
You can go the route of aiding the inclusion of AI into legal tools and LegalTech systems, bolstering those efforts by the keenness of your legal prowess. That’s the side of the coin entailing AI as applied to the law. A smattering of AI familiarity would typically suffice. Your profound knowledge of the law and the practice of law provide the sorely needed domain knowledge for such efforts.
Or you can participate in the crafting of new laws that will provide added safety and equity for the pell-mell rush of AI throughout our society. Once again, familiarity with AI will be sufficient, while your ample legal acumen is the overriding criterion.
Besides the regulatory perspective, you could perhaps be ready to serve your existing clients as they find themselves confronting AI-related systems exposures or calamities. You might even consider establishing a new line of your legal practice that will aid businesses and individuals that find themselves wronged by AI systems. These are all lawyering activities that fit into the side of the coin of applying the law to AI.
I trust that this provides a kind of helpful map to you, illuminating the path ahead that AI in the law will be indomitably forging.
There is no need to arbitrarily flip a coin to try and guess whether AI in the law is going to be substantial. Of the various bets that you might wish to make as a lawyer, betting that AI is coming and will inevitably permeate the legal field is a guaranteed winner. It is, shall we dare say, a sure bet.
About The Author
Dr. Lance Eliot is a Stanford Fellow at Stanford University as affiliated with the Center for Legal Informatics, a co-joining of the Stanford Law School and the Stanford Computer Science Department.
He is also Chief AI Scientist at Techbrium Inc., has been a top exec at a major Venture Capital firm, served as a global tech executive at several large firms, previously was a professor at the University of Southern California (USC), and headed an AI lab there.
His columns have amassed over 4.5+ million views including for Forbes, AI Trends, The Daily Journal, and other notable publications. His several books on AI & Law are globally recognized and highly praised.