The comments from leading members of the judiciary have been overwhelmingly positive about embracing technological change.
As Lord Justice Birss said in his recent speech last month:
"My own view is that AI used properly has the potential to enhance the work of lawyers and judges enormously...I think it can and should be a force for good. And I think it will be as long as it is done properly and appropriately".
Sir Geoffrey Vos, who has made a number of speeches about technological changes in the justice system, believes that its use may rapidly become necessary. He has spoken about what he sees as the duties we as a profession have to our clients and to users of the judicial system - including a duty to make constructive use of whatever technology is available if it helps to provide a better, quicker and more cost-effective service to clients and the public.
So how can AI help?
All the judges, when speaking on the subject of AI, are keen to emphasise that we already have a digital justice system – it is just not as developed in all parts of the process. Examples include the service of documents, the digital court file and the use of algorithms as part of the Online Civil Money Claims System which applies to debt claims up to a value of £10,000.
However, Sir Geoffrey Vos spoke recently about the need for more digitisation even for the more complex cases in the Business and Property Courts and that those courts need to be proactive in reforming procedures for the digital age embracing AI technologies and smart systems to reduce unnecessary costs and delays. Judges have identified the following examples of where using AI might be beneficial:
Democratising legal advice and assistance
Large Language Models (LLM) have the potential to transform access to justice by enabling people to obtain legal advice, or draft legal submissions, for free or at minimal cost. However, there exists an issue of 'hallucinations' within the responses sometimes produced by LLMs – a layperson may find it difficult to verify the accuracy of LLM outputs without access to other sources of information (eg legal databases). A possible solution may be to create closed databases – limiting the information deployable by an LLM - which could reduce the risk of hallucinations.
Summarising cases and documents
Here perfect accuracy is not required, in fact it cannot be achieved sometimes when information is compressed to provide a meaningful precis. This could save a lot of time for lawyers, potentially helping to cut down on legal costs.
Predicting case outcomes
The significance of using AI to predict cases is in its ability to analyse large and varied data sets rapidly and systematically, with the ability to make predictions which could then be looked at alongside the opinions of the legal advisers - who bring a different set of skills to the process.
What other impact will AI have on the legal landscape?
There will be a need for the law to accommodate and regulate AI and other emerging technologies. As Sir Geoffrey Vos comments, together with the duty to maximise the benefits of AI, there is a duty on the profession to put protections in place to limit the adverse effects of AI. Many new aspects of law will need to be considered in areas including contract, tort, property and data protection.
Lord Hodge expressed the view that it is probably not practicable to develop the common law through the decisions of judges on individual cases. The pace of change will mean that this will need to be done at a policy level and there will probably need to be collaboration at an international level too.
Will cases be decided by AI?
Judicial guidance was issued on 12 December 2023 about the use of AI (see our article on its impact). The message is very much an embrace of new technology but with a warning to judges to be vigilant about the risk of false information being produced, both through their own use of these AI tools and the use by other court participants. The guidance recognises AI's value, stating that "Provided these guidelines are appropriately followed, there is no reason why generative AI could not be a potentially useful secondary tool". That being said, there is nothing in the guidance to suggest that we are yet in the position of having AI decision-making by the courts.
Should you require any further information on the issues covered in this article, please contact one of our Disputes and Investigations team.
