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lundi 11 mars 2019

The Good, the Bad, and the Ugly of Legal Tech

   By Audrey Bernasconi, Student, McGill University






With Katarina Daniels, Lawyer, Liaison Librarian at Nahum Gelber Law Library, McGill University






Whether you are browsing through your customized movie selection on Netflix, finding the quickest route to your destination on Google Maps, or reviewing job listings sent to you by LinkedIn, you are interacting with machine learning and algorithmic technology. Beyond its day-to-day influence on our lives, these technologies, broadly encompassed under the term “computer-assisted digital technologies”, have disrupted long established ways of working across several industries, including the legal sector. From legal research, contract drafting to due diligence review, litigation strategy, and criminal sentencing, AI applications have considerably impacted virtually all areas of the law, for better or worse.


The good

Though the legal sector is traditionally seen as being averse to change, there are compelling incentives to quickly embrace Legal Tech solutions. Indeed, Legal Tech promises to make legal services faster, cheaper and more accessible. Among the applications contributing to improving the delivery of legal services is Casetext’s CARA, a research engine that has lawyers wondering what life was before Casetext. Users can drop a complaint or a brief into the CARA search engine and obtain relevant cases that fit with the context of their matter in seconds. In this way, Castext allows lawyers to avoid having to laboriously sift through mountains of case law and save valuable economic and human resources in the process.

Other Legal Tech tools, such as Knomos, allow users to decrypt complex web of rules and legal concepts through visualization. Knomos’ mission is to “deliver a unique knowledge management platform that empowers everyone to understand and act on their legal rights”. The development of products of this kind is especially beneficial for non-experts, as they can get insights into complex areas of the law in a more intuitive and user-friendly format.


The bad 

We’ve all heard of the dangers of WebMD; for a hypochondriac, it can be a real nightmare. With the advance of Legal Tech, we have seen the emergence of Lawyer Bots that impersonate lawyers and allow members of the general public to similarly self-diagnose at minimal cost. For instance, YoLawyer can provide instant answers to clients over Facebook Messenger with regard to claiming compensation for flight delays, cancellations, and boarding denial. Other tools like Robot Lawyer Lisa (self-proclaimed as the world’s first impartial robot lawyer) can even create legally binding documents for clients online. While the developers behind these tools may have gone to law school, the bots themselves are not trained in the same way as traditional lawyers nor are they members of the bar, and yet they do not limit themselves to giving legal information to users; their tailored answers to legal problems fall more in the realm of legal advice. In Quebec, this would appear to be contrary to Art. 128.1 of the Act Respecting the Barreau du Québec which states that certain acts are the “exclusive prerogative of the practising advocate or solicitor” including giving legal advice and consultations on legal matters. What is particularly worrisome is the potential lack of recourse for these bots’ “clients” in the event that the advice they obtain is unreliable.


The ugly 

As distant of a reality as it may seem, the replacement of judges with robots might not be as imagined of a paradigm, even today. Indeed, we are already seeing dozens of AI-powered tools assisting judges in criminal sentencing across the United States, the most popular nationwide being COMPAS (Correctional Offender Management Profiling for Alternative Sanctions), created by the private company Northpointe, now Equivant. This tool provides recidivism prediction scores which directly impact sentencing outcomes. The algorithm behind COMPAS, however, is proprietary, meaning its methodology is a trade secret, and hence neither the manner in which the risk scores are generated nor the weight attached to various factors are disclosed to the public. All we know is that COMPAS computes risk scores by analyzing five critical indicators: criminal involvement, relationships/lifestyles, personality/attitudes, family and social exclusion. Criminal defendants respond to a questionnaire which includes questions such as, “how many of your friends/acquaintances are taking drugs illegally?” and “how often did you get in fights while at school?”. Answers to these questions can serve to infer race and cultural factors; it, therefore, did not come as a surprise when research completed by the independent non-profit newsroom ProPublica found that people of color were twice as more likely to be wrongly flagged with high risk of reoffending. While we cannot fault the algorithm itself or data-driven justice more generally, we must be wary of outsourcing a judge’s duty when it will only serve to replicate past biases.

So what should we make of all this? 

Actors in the legal field need to leverage the good, curtail the bad, and prevent the ugly.

First, we need to leverage Legal Tech for those tasks where lawyers are not per se required. This does not mean, however, that it will bring an end to the legal profession altogether, despite what some glaring headlines may say (ex: Washington Post, Telegraph.co.uk, CNBC). Certainly, there are tasks that no robot could ever replace. As lawyer Markus Hartung argues, “an important part of legal work, consisting of emotional intelligence, empathy, the ability to ‘read’ faces and reactions and to inspire trust in clients, defies all forms of automatisation”.[1] In any event, getting Legal Tech-ready is unavoidable for tomorrow’s lawyers, just as being well versed in Word, Outlook, and PowerPoint was for lawyers a decade or two ago.

Second, the adoption of Legal Tech should not be done hastily. Instead, careful consideration needs to be given to the ethical and socio-cultural impact Legal Tech applications like Lawyer Bots or sentencing tools like COMPAS could have. Europe seems to be ahead of the curve on this; in February 2017, the EU Parliament passed a resolution titled “Civil Law Rules on Robotics” to encourage the development of a set of rules on robotics and AI. If we want to fully exploit the potential of Legal Tech, such rules are required to guarantee that our ethical concerns are answered.

Interested in learning how to best leverage Legal Tech in your organization? Want to know more about the line between advice and information when it comes to chatbots? Be sure to attend this year’s Legal.IT Conference, March 22nd, 2019! Hosted by the Young Bar of Montreal, this 13th edition is certainly not one to be missed. To register and for details, click here.

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Les chroniques du CTI sont rédigées par un ou plusieurs membres du Comité Technologies de l’information (CTI) dans le but de susciter les discussions et de soulever les réflexions au sein de la communauté juridique à propos des nouvelles technologies et le droit. Les auteurs sont donc seuls responsables du contenu des articles et l’opinion qui y est véhiculée n’est pas celle du JBM, mais bien celle des auteurs. Si vous désirez rédiger une chronique, envoyez un courriel au cti@ajbm.qc.ca.

To register at the Legal.IT Conference, click here. 

[1] Markus Hartung, “Four theses for the future” in Markus Hartung, Micha-Manuel Bues & Gernot Halbleib, eds, Legal Tech (Munich: Verlag C H Beck oHG, 2018) 397 at 397.

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