Law Can’t Run on Tech Alone: How Technology Will Help – not Replace – Lawyers – PART II
In our last post we began a discussion about the relationship between legal technology and the perceived threat it poses to lawyers’ job security. We noted that claims abound warning of technological advances that will all but supplant lawyers and – gasp! – even law firms.
So what’s wrong with this notion of “robot lawyers”?
To oversimplify, the law is a human thing. Technology is a great enabler, allowing humans to focus less on the necessary cumbrous bookkeeping, administrative and practical tasks, and more on the law.
Laws regulate people (and, lest we forget, the corporate ‘person’), and are written, interpreted and enforced by people. No matter how regimented and rote, the law and its application contain degrees of reason – human reason – that algorithm cannot account for. These limitations become even more pronounced as complexity increases. And whenever reason comes into play, technology can only support – but not supplant – flesh and bone legal professionals. The real question, then, is what aspects of the law depend on human reason? Turns out, almost all.
Let’s set aside the obviously humanity-centric areas such as Constitutional and Family Law, and go straight to the heart of the beast: contract law. Technology can – and does – play an increasingly important role in contract law by enabling streamlined contract creation, tidier negotiation, intricate contract data-based reporting, and overall visibility into the lifecycle of a contract. But, in contract law as elsewhere, technology is only as useful as its use by lawyers is consistent and deliberate. Plus – and this goes without saying – it takes skilled people to create the rules, logic, and enter the data that make the software run and keep it running.
A glimpse at four aspects of contract law should clear up any doubt as to the human nature of contract law:
A contract’s viability depends on whether there was a “meeting of the minds” – shared intention – at creation. No shared intention, no contract. Computers cannot intend anything, and the human brain is so complex that building a computer-generated brain is highly unlikely. Technology that, for example, allows lawyers to search for best practice clauses or draft contracts using intelligent templates certainly speeds up creation where documents are inherently predictable. But creation itself depends a priori on the parties being people intending to make a deal. It depends more on the relationships in play than the signatures on the page.
Computers also cannot negotiate. While they can streamline collaboration, communication and record keeping involved in the back-and-forth, negotiations involve judgments based on experience, analysis, knowledge, power dynamics, impressions and assumptions, all of which are based to varying degrees on the parties and their circumstances. The ultimate success of difficult negotiations is predicated on the parties’ trust in each other and their respective stakes – financial, emotional, or otherwise – in the outcome.
When something goes wrong in contract law, arbiters look to myriad objective and subjective factors to determine the enforceability of contract terms, the intent of the parties, and degrees of liability in case of breach. In the United Kingdom, legislation requires contracts terms meet a standard of reasonableness, which, though defined by an objective test (outlined in the Unfair Contract Terms Act 1977 section 11), depends on the subjective circumstances of the parties. International law similarly seeks to define terms in sale of goods contracts by looking at both the objective and subjective intent of the parties (see the United Nations Convention on Contracts for the International Sale of Goods (1980)). Contracts are reflections of human relationships, desires, beliefs and circumstances. Courts take these human elements into account when reaching decisions as to their viability and the liabilities they impose.
While legal technology has proved a boon to litigation – especially in reducing the burden of discovery and review – software cannot make determinations as to a course of legal action. When harm results from an accident, a deal gone bad, or a soured relationship, attorneys use – once again! – judgment, reason and experience to weigh the options available to their clients, and they use – can you guess? – reason, experience and intellect to determine which legal arguments best serve their clients’ interests. Factors may include intangibles such as the reputation of a judge or opposing counsel, degrees of sympathy or credibility. Technology may help consolidate, organize and locate information – it may even be able to offer suggestions based on past outcomes – but it does not replace the fundamentally human element in legal decision making.
And finally, just to drive home the point, a comment about trust. While we could go on about this all day, suffice it to say that the legal profession is built on trust. Dressed up as diligence, candor, truthfulness and integrity, it is the golden thread running through the rules of professional conduct, the backbone of the profession. Lawyers maintain a duty of care to potential, current and future clients, and assume responsibility for the advice they give and actions they take. How would a program be held to account? If, as has been claimed, the advice of an attorney could be replaced by algorithm, who would be responsible? If we were to rely on technology, where would the line between being inculpated in or excused of negligence or a conflict of interest?
Technology is, in essence, an enabler and an amplifier. It allows people to create contracts or search documents at lightning speeds, and have visibility into the terms and conditions embedded in their contracts with startling accuracy. But its effectiveness and trustworthiness depend on how humans build it and put it to use. Technology is not a threat, it’s a catalyst for lawyers to return to their roots. In short, legal technology can free up lawyers’ time, minimize human error, and reduce the cost of legal work. When used well, technology means more humanity in law and more and better access to justice, not more pink slips.