The law is necessary, lawyers are not - Or are they?

It is probably no exaggeration to state that ChatGPT has hit like a bomb, because for the first time it gives the general public a glimpse of the enormous progress that research in the field of artificial intelligence (AI) has recently made. Under the impression of this impressive progress, there is now also intensive discussion in legal circles as to where the journey will lead in this context. Here are my current thoughts on this fascinating topic.

Replacement of Judges?

Is there a risk that judges will be replaced by AI? From my point of view, there are at least two arguments against this, which I would like to present here very briefly and put up for discussion. 

• Whether politicians or legislators could be replaced by AI is, to my knowledge, interestingly and significantly not discussed. This is probably because, at least today, we cannot imagine handing over power to AI, so to speak. In my opinion, this is one reason that speaks against us being prepared to let AI take care of the administration of justice completely. The administration of justice is the exercise of power, and in my estimation, we would be reluctant to cede this exercise of power extensively to AI. 
• In many cases, the application of law and the adjudication of specific disputes is not a mechanical process, but requires the exercise of discretion, at various levels. At the level of the assessment of facts and evidence and at the level of the interpretation of open, not precisely defined legal terms and concepts. The exercise of discretion depends on the circumstances in which a judgment is made, and because circumstances change, the exercise of discretion often changes. Let us take as an example for illustrative purposes the rule-of-law principle that state action must be proportionate (Art. 5(2) of the Swiss Federal Constitution). What was considered a proportionate state measure in one epoch may be qualified as disproportionate in another epoch. The exercise of discretion required in this context, which is influenced by various factors, cultural, sociological, political, etc., is unlikely to be transferable to AI.

How does ChatGPT answer the question? Based on a query of 26 January 2023, ChatGPT provided this answer to the prompt "Will judges be replaced by AI in the future?":

"It is possible that artificial intelligence (AI) could be used to assist judges in certain aspects of their work, such as researching legal precedents and analyzing evidence. However, it is unlikely that AI will replace judges entirely in the near future.

Judges are responsible for interpreting and applying the law to specific cases, which requires not only knowledge of the law but also discretion and the ability to make fair and impartial decisions based on the facts and circumstances of each case. These are qualities that are very hard to replicate with AI. Additionally, The use of AI in the legal system raises a number of ethical and legal questions, such as how to ensure that AI systems are fair and unbiased and how to hold AI systems accountable for their decisions.

It is important to note that, while technology can be a valuable tool in the legal system, it should not be seen as a replacement for human judges and the critical thinking and decision-making skills they bring to the job."

I am glad we are on the same page...

Replacement of Lawyers?

A further issue discussed by legal circles in relation to AI concerns the future of law firms. Paraphrasing a famous saying allegedly made by Bill Gates over twenty years ago in relation to banks, one may wonder whether lawyers will still be needed in the context of the administration of justice in the future. Or formulated as a provocative saying: The law is necessary, lawyers are not. Is that so?

If the work of a lawyer was only about extracting certain legal answers from a database, lawyers could certainly soon pack up their bags. But that is not what lawyers do. In other words, no matter how potent an AI-based database is, the layperson would, at this stage, not even know what to ask for. In any event, in the practice of lawyers, what usually happens, is that the client comes to his or her legal advisor with some documents and often a very unstructured "story", and the legal advisor then gets to know the case through numerous queries, the search for and review of additional documents, and then step by step an assessment is made, a strategy is defined, legal documents are written, negotiations are conducted, etc., etc. It would appear that it would at least take a long while before this can be handled purely by machine. Just as there are no self-driving cars on our roads yet, despite massive amounts spent on R&D in this regard. 

That the legal profession will adapt to the use of more potent, AI-assisted databases seems to be unproblematic and evident. Practicing law means lifelong learning anyway. And if you look at the development over the last 25 years or so, an enormous amount has already happened in that time span. When I started as a trainee at Pestalozzi in Zurich in May 1996, there were, if I remember correctly, no websites of law firms, there were no smartphones, the official collection of laws was kept physically, the know-how collection as well, the Swiss Federal Supreme Court and other courts published their judgments, if at all, only physically, there was no social media, lawyers dictated their texts, a project like Justitia 4.0 was not even thought of, etc., etc. And lawyers have integrated all these very significant changes into their daily work without any problems. 

How does ChatGPT answer the question? Based on a query of 26 January 2023, ChatGPT provided this answer to the prompt "Will the services of lawyers be less required in the future?":

"It is possible that the services of lawyers may be less required in the future due to advancements in technology and the increasing availability of legal information and resources online. For example, the use of artificial intelligence (AI) in legal research and document review can save time and reduce the need for human lawyers to perform these tasks. Additionally, the use of online legal services and self-help resources may allow more individuals to handle certain legal matters on their own. However, it is also important to note that lawyers bring value to clients in many ways, including providing expertise, guidance, and legal representation in court. As such, it is likely that lawyers will continue to play an important role in the legal system, even if their services may be less required in certain areas."

Fair enough...

Final Thoughts

So, to sum up my current thoughts on the present topic, while I am less optimistic for the future of lawyers than that of judges, I think it will be at least quite some time before lawyers are completely replaced by AI, if ever.

One final thought: if at some point the legal profession really was to be completely substituted by AI, from A to Z, then it would be felt that 99% of all head workers would be superfluous in the professional world. We can only hope that humanity does not put itself on the sidelines in such a radical fashion.

PHH, 28 January 2023