Technology Disruption in Law Could Lead to Disruption in the CourtsDecember 2016
Topics: Computing Methodologies, Data (General), Government Agency Operations, Information Systems
According to research cited on Law Sites and Angel, more than 1,000 legal start-ups are disrupting the way law is practiced. These start-ups use technology to focus on topics like online dispute resolution (ODR), case analytics, predicting judicial outcomes, e-discovery, document automation, and practice management.
But when it comes to the use of technology in judicial systems, the courts have been slow to react, according to Brad Brown, portfolio director for MITRE's Center for Judicial Informatics, Science, and Technology (CJIST).
"Judges believe, and rightfully so, that their job is to see that justice is done," he says. "Their emphasis is on ensuring there's equity and fairness."
Lawyers who practice in front of judges, on the other hand, are more interested in winning their argument. They're taught to be persuasive. But new technologies and tools are taking persuasiveness to a new level. Analytics can provide nuanced insights into a judge's thinking. Now it’s not about the assumptions—it's about the data.
Analytic tools are changing the calculation between facts and legal analysis. These tools allow attorneys to analyze case information to identify everything from words and arguments most likely to influence a legal outcome to signs of a judge's particular predilection on a given topic.
Attorneys can use these insights to their advantage. Some larger law firms are even developing or acquiring their own software subsidiaries for the use of their own attorneys and clients.
Will Computers Someday Be Judges?
Brown believes the automation of legal reasoning is coming. “Computational law will drive further disruptions such as computatable contracts. It has begun with various forms of "decision support"—cognitive assistance to help judges make better decisions. This is just part of the continuum on which humans and machines interact.
"It's part of the continuing evolution of the automation of knowledge work," he says.
MITRE has a lot of experience in this area, much of it gained within the Judiciary Engineering and Modernization Center (JEMC), the FFRDC sponsored by the Federal Judiciary. MITRE's experience in artificial intelligence, judicial systems engineering, cybersecurity, court document quality control, case management, court modernization and efficiency, and cutting-edge research can all be brought to bear.
"Our goal is to support the work of our sponsor and to leverage our technical expertise to deliver the outcomes they seek," Brown says. "In our case, it’s about enhancing judicial operational effectiveness, advancing organizational maturity, and securing the Federal Judiciary." He notes that CJIST has a similar focus overseas.
Such disruption is happening not just in the United States, but everywhere. In the Netherlands, for example, couples seeking divorces are now required by law to attempt to settle their cases using online dispute-resolution (ODR) software. The Netherlands' ODR platform was developed in Silicon Valley and has been used to resolve disputes on eBay—60 million so far.
"Our partner, the University of Montréal Cyberjustice Laboratory, is interested in applying technology to assist self-represented litigants," Brown says. "We believe that MITRE's research capabilities can help. It’s a win-win, because we can use what we learn to support our sponsor."
The Human Element Will Always Be Essential
Despite these technological advances, Brown doesn’t foresee computers making actual legal judgments just yet.
"People must perceive the process as fair. The idea of the judge as the arbiter of fairness has been part of our culture from the beginning," he says. "There will always be a human element involved in the analysis and application of the law."
Just how much of a human element, though, remains to be seen, he admits. "The question of who's willing to accept computer-generated judgment is coming. Artificial intelligence, deep learning, and other advances will continue to push the envelope."
He points out that Oliver Hart and Bengt Holmström were recently awarded the Nobel Prize in Economics for contract theory focused on incomplete contracts. "I believe that with a logic-based model you may be able to predict contract gaps. If you can do that, fully computatable contracts are not far behind."
—by Paul Lagasse