There is no doubt that new technologies and digitalisation are having an impact on legal work. But how does it all work, and are we really in for a time when artificial intelligence will take the place of the judge?
Tanel Kerikmäe, Director at the Department of Law at the Tallinn University of Technology, explains that legaltech is becoming more and more successful, with the US being at the forefront of its implementation. ‘The use of digital technologies in the legal field goes hand in hand with the same principle as in other areas of life – saving human resources, time, and money. However, it is important to distinguish that such technologies are not artificial intelligence, but simply an automation of processes,’ says Kerikmäe. He cites the example of civil proceedings in Estonia, which have been significantly shortened as a result of automation. While in the past, we were even reprimanded by the European Commission on why trials take so long in Estonia, in the last five years, the average civil proceedings in Estonia have shortened from 156 to 99 days.
On the other hand, there are already warning examples from around the world of how the use of technology in the legal field can actually undermine the principle of legal certainty. In France, for example, law firms adopted a technology that predicted the behaviour of judges. Soon, the country took the position that such technology was prohibited.
So far, two countries have been associated with the existence of the so-called ‘robot judge’ – China and Estonia. ‘Actually, we don’t have a robot judge in Estonia, but we were talking about expedited order-for-payment proceedings (for example, child benefit or parking fine procedures). The decisions had already been made regarding those and algorithms were used to speed up payments,’ explains Kerikmäe. But he also cites an example from the US, where in the Compass case, technology was at the heart of helping judges decide whether a person should remain in custody or could be released early. ‘It later became clear that the technology was based on biased data and that Latinos and black people were getting a worse trial. Cases like this have cooled down the enthusiasm a bit in democratic countries.’
Recently, Rainer Kattel, Professor at the Department of Innovation and Governance at Taltech, pointed out that artificial intelligence is mainly taking jobs away from white-collar workers, including lawyers. ‘I would wait and see, it can’t happen overnight. In Estonia, for example, the legal market is not yet very ready for modernisation.’ says Kerikmäe. ‘Lawyers and courts are the most conservative part of specialists, and that is the way it should be.’
According to Kerikmäe, Estonian judges have expressed caution about the transition to a digital court system and have pointed to the fact that the Ministry of Justice is pushing courts to digitalise too quickly. ‘However, this is an inevitable process, and to some extent linked to generational change. We have about 350 judges and we are about to have 80 new judges who will probably be more digital-friendly.’ says Kerikmäe.
Legal education is changing
According to Kerikmäe, legal education is also changing. ‘Old school’ law schools will definitely remain, but there will also be more open approaches that are more in tune with the changing market. ‘Lawyers have argued that more talented law school graduates are planning to set up their own legaltech start-up rather than work in a law firm for years. The new position in our field is that of a legal designer, the architect of legal decisions.’ says Kerikmäe. However, he is also convinced that a majority of more conservative lawyers will also remain, who are reluctant to go with the flow. They may have their own client base who are used to doing things this way, or they may have serious suspicions about technologies.
However, according to statistics and trends from the analyst firm Deloitte, it is estimated that around 100 000 lawyer positions will be lost in the US by 2035. ‘Personally, I believe the role of technology will still be an assisting one. The most important thing is that the client trusts the service provider, and good technology must be used to deliver a good service. A lawyer who doesn’t use legaltech will at some point simply fall behind in the competition,’ Kerikmäe says. ‘Lawyers need to become more interdisciplinary, understand the world of IT and many different areas of life, because these areas are also changing. Tallinn University of Technology is currently the only centre of learning and research in Estonia that prioritises the integration of law and technology. We also integrate a technology component in each course and work with different IT developers, we have networked with centres of excellence abroad in Germany, Singapore.’
Experiments with technologies and artificial intelligence
Returning to the topic of artificial intelligence, Kerikmäe says that even before AI, there are several examples of controversial technologies in the legal field. In the US, for example, there is a technology that helps a law firm partner choose the most appropriate lawyer from their firm for a particular case, taking into account their past performance, hourly rate, and how long it would take to resolve the case. It is a contradictory solution because it does not give young talented people a career opportunity.
In Latvia, there was an initiative that judges could use predictive technology to get an idea of how much a case would cost. Kerikmäe believes that such a thing could lead to biases towards cases. For example, let’s take a case in which the state would have to pay compensation according to a prediction. Here, the judge may face a dilemma in deciding precisely because of the amount of compensation.
Several experiments have been carried out with artificial intelligence. A Canadian professor did an experiment in Japan where they put algorithms and a group of people in competition to see who would be more successful in getting into the bar association. Artificial intelligence won. ‘One could conclude from this that a machine might be better than a person, but in fact it is certainly not the case. Making any legal decision requires not only knowledge of the facts, but also social skills, cultural awareness, in other words, all the things surrounding the law and giving meaning to the law,’ explains Kerikmäe.
One rather old experiment dates back to 2004, where artificial intelligence and a group of people were given 628 US Supreme Court cases to read without a decision and then had to make a decision based on what they read. Again, artificial intelligence was superior to human intelligence. One French scientist even came up with the idea of using artificial intelligence to scrutinise the decisions made by judges. Kerikmäe says that such a thing is simply not possible in real life, because the judiciary must be independent and judgments can only be scrutinised by the next instance.
So, where should artificial intelligence be used in the prosecution process? ‘Artificial intelligence must have an assisting role in the legal field, as has been stressed by European institutions and the US legal community. From the client’s point of view, for example, a state-controlled artificial intelligence could help them draft official appeals, create texts, and send them to the right authority,’ Kerikmäe gives an example. ‘For the lawyer, it could explain which rules to use, it could help understand in which order to use the rules, to find similar cases, to analyse the arguments, the principles used, the text. In essence, artificial intelligence should not tell any human what to do, but it can suggest, show alternatives. However, nothing can definitely happen until artificial intelligence regulations are adopted in Europe.’
Tallinn will soon host FutureLaw 2023 legaltech conference
The role of technology in the legal field, including the impact of artificial intelligence, will be one of the main topics discussed at the legaltech conference FutureLaw2023 at the end of May, co-organised by TalTech.
The conference, which will take place in Tallinn on 26–27 May, will be the first of its kind in Estonia and will feature renowned speakers. In cooperation with the legaltech company LEGID Academy and the European Legal Technology Association (ELTA), two days of events on legaltech will take place.
FutureLaw 2023 is the largest legal event in the Baltics and Northern Europe, bringing together over 300 participants and top legal experts from across Europe. This conference will provide legal practitioners, junior lawyers, and law students with an excellent opportunity to learn from the brightest minds in the legal field and to explore the latest developments and trends shaping the future of legal practice. Sessions will cover a wide range of topics, such as legaltech, artificial intelligence, legal design, legal techniques, legal activities, court actions, intellectual property, etc.
‘We are delighted to bring together some of the brightest minds in the legal and legaltech sector to discuss the challenges and opportunities presented by the rapid pace of technological change,’ said Valentin Feklistov, conference organiser and CEO of LEGID Academy. ‘This conference is an amazing opportunity for legal professionals to learn from each other, share their experiences, and gain valuable insights into the future of our field.’