by Landon Bailey
To most lawyers, the concept of “artificial intelligence” or “AI” seems foreign – something constrained largely to the realm of science fiction, and certainly not a component of the practice of law today. This perception no longer reflects reality. Artificial intelligence technology is not just the province of future generations; it has entered the realm of legal practice, and is disregarded as futuristic fantasy at the practitioner’s peril. The time has already come to begin giving attention to new innovation in the field of artificial intelligence and to consider how it may impact our respective practices and professional lives.
AI is broadly defined as the science and engineering of creating computer programs and machines capable of independently performing tasks normally requiring human intelligence. The field emerged as an academic discipline in the 1950’s. From its inception over 60 years ago, the purpose and expectation of AI innovation has always been to create machines that not only perform traditionally “human” tasks, but improve upon human performance with instantaneous recall of massive amounts of data and superior precision well beyond the human brain’s capabilities. With exponential advancement in computer technology over the past two decades, theory and aspiration in AI has given way to tangible modern reality.
High profile examples of AI technology familiar to many include Deep Blue, the chess computer that defeated then-world chess champion Garry Kasparov in 1997, and IBM’s Watson, the AI “QA” (question answering) system that defeated Jeopardy champions Ken Jennings and Brad Rutter in 2011. In 2015, AlphaGo, an artificial intelligence system powered by Google’s DeepMind technology, defeated legendary player Lee Se-dol at the abstract Chinese strategy game Go – and, this year, AlphaGo defeated reigning Go world champion Ke Jie. Tech-savvy companies have begun integrating highly visible, user friendly AI systems, such as Apple’s Siri and Amazon’s Alexa, into mainstream electronic products, enabling smart phones and other gadgets to respond to certain natural language commands, answer questions, and respond to other verbal prompts. These applications, while impressive, only scratch the surface of what artificial intelligence technology can do.
Given the increased availability of products integrating AI technologies in recent years, it should be no surprise that products marketed specifically to law firms and legal professionals have emerged. One such product is called ROSS, and is already in use at many prominent law firms, in-house legal departments, and law schools. Like the machine that beat Ken Jennings at Jeopardy, ROSS is powered by IBM’s Watson technology. ROSS, marketed as “the world’s first artificially intelligent attorney,” draws upon a comprehensive and constantly updated database of legal authorities, and responds to legal questions presented in natural language. ROSS performs legal research tasks with speed, efficiency, and comprehensiveness, eliminating many hours normally spent by lawyers on information retrieval and analysis, and enabling those lawyers to focus on tasks involving creativity and advocacy that ROSS is not capable of performing – at least, not yet.
COMPAS applied (and challenged)
In Loomis v. Wisconsin, now before the US Supreme Court on Loomis’ petition for writ of certiorari, a Wisconsin court sentenced Loomis to six years in prison based in part on a report generated by a computer program called COMPAS, which uses proprietary software to forecast the risk of recidivism. Having been denied access to the program’s secret algorithms, Loomis argued the court’s use of the COMPAS report violated due process. The Wisconsin Supreme Court rejected that argument and upheld the sentence, prompting Loomis’ petition to the US Supreme Court. The cert. petition is on the Court’s June 22 calendar.
LexisNexis also seeks to be seen as a leader in early AI technologies directed at legal professionals, and boasts one of the most sophisticated legal predictive analytics tools ever created in Lex Machina. Lex Machina employs natural language processing and machine learning, automatically mines a vast database of litigation data, provides relevant data-driven reports, and predicts outcomes based on demonstrated tendencies of particular judges and lawyers. Through its legal analytics platform and related applications, Lex Machina can assist corporate counsel in determining how likely a judge is to grant or deny a particular motion, estimate the approximate length of a particular litigation matter, and determine how likely a particular judge is to find in his client’s favor. Lex Machina even provides data on opposing parties and attorneys, informing counsel in key strategic decisions. Lex Machina initially focused on intellectual property litigation, but is expanding to provide similar sophisticated data collection and analytics for securities and antitrust litigation. Lex Machina is already in use at law firms and companies across America, and is not alone in the AI-powered legal analytics marketplace. Competing products exist, marketed by companies like Premonition, which provides AI solutions for legal professionals, as well as a diverse array of other fields, including insurance, finance, and lobbying.
AI technologies are not just for large scale, high stakes, multi-million dollar litigation matters. Another example of AI’s impact on the legal world is COMPAS, a computerized actuarial risk assessment system that uses both static and dynamic data relating to criminal offenders to assess their risk of recidivism, violent conduct, and other behaviors, and to predict outcomes. This technology is already in use by some state courts and departments of corrections to aid in critical decisions like sentencing, bail, case plans, and allocation of rehabilitation and supervision resources.
Rule 1.1 of ABA Model Rules of Professional Conduct instructs that “lawyers should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Consistent with this guidance, prudent legal counsel should be aware of AI technologies as they develop, learn their benefits and their risks, and consider whether such technologies might enhance their practices today. AI has arrived in the legal field, and just as electronic discovery has revolutionized the practice of law over the past two decades, we can expect AI’s expansion and development to fundamentally change the way we provide services to our clients over the next 20 years.