Update (April 10, 2017): In the original post below, we pondered the idea of computers replacing civil litigators, suggesting it might be at least a decade or two away.

To be more precise, the complete replacement of civil litigators by computers is at least a decade or two away.

As for the partial replacement, you are out of the loop if you don’t recognize that this has already happened.

One example: about twenty years ago, in preparing for a deposition in almost any case, lawyers, associates, and paralegals might spend several hours if not days poring through boxes of documents to find particular documents they already KNOW are “in there somewhere.” Now a single lawyer can run a database search and find any document in a data-set of millions of documents in less than one second.

This is one of many examples of the dramatic and irreversible disruption of the livelihoods of U.S. law firms, lawyers, and their decimated support staff.

Recently, a task force of lawyers with the Minnesota Bar Association has been studying the important and complex issue of “alternative legal models.” The task force focused on human alternatives. Do we really need licensed lawyers to do some of the routine and relatively simple tasks that now require law degrees (and, thus, are expensive)? Is this restriction the reason why our civil justice system is only good for big business and rich people, or as former Chief Judge James M. Rosenbaum (D. Minn.) has quoted former U.S. President Jimmy Carter, “Rich people drive Cadillacs and poor people don’t”? (Judge Rosenbaum pointed out that our criminal justice system, in contrast, can be very good for the poor, who get “free” public defenders, who can provide them excellent services.)

But one Minnesota lawyer on the task force, Angela E. Sipila, had a different perspective: “[A] computer can deliver the knowledge of a law degree,” she pointed out and how do we ensure that these systems are tracking basic ethical requirements that apply to lawyers?

The legal service markets are already integrating with non-human providers, which operate under the fiction that the legal service is provided pro se. Commercial, web-based legal services currently have free reign in the marketplace, with no malpractice insurance, confidentiality or the other requirements particular to the field of legal service. The discussion of what we can and should do to regulate non-human legal service providers will be similar to the discussion of regulating human non-lawyer legal service providers.

Focus on computer software compliance with lawyers’ professional rules of conduct almost seems like a subject for science fiction but maybe it is not nebulous, speculative, or unreal navel-gazing.

Consider the scenario below, for example, a multi-million dollar multi-party legal dispute. It is certain that the human lawyers grapple constantly with the reach and scope of their ethical obligations. They owe duties of candor, communication, competence, and diligence to their clients, of course, but they also owe duties to third-parties.

Furthermore, these exact limits and scope of these obligations are ambiguous and ever-changing. It could be hundreds of years or more before humans trust computers to exercise judgment.

Original post (April 5, 2017) (under the headline “Worried about Computers Taking over Lawyering? Compute this…”): How about this for the name of a pleading: AMENDED ANSWER TO PLAINTIFF’S SECOND AMENDED THIRD-PARTY COMPLAINT, COUNTERCLAIM AGAINST BIG-D CONSTRUCTION MIDWEST, LLC, CROSS-CLAIM AGAINST MINNESOTA BUILDING PROS, INC.AND THIRD-PARTY COMPLAINT AGAINST CHICAGO FLAMEPROOF & WOOD SPECIALTIES, CORP.?

The pleading comes from litigation that is pending before Hennepin County District Court Judge Laurie J. Miller.

The case is a “who’s who” of Minneapolis construction litigators. The multi-million dollar legal conflagration started when, allegedly, a supplier of “fire-retardant-treated wood” (“FRT”), without notice to the buyer, swapped out one product for another that the seller contends is in all material respects equivalent to the specified and ordered FRT. (What could be more innocent? Buyer asked for Widget and was sold WidgeT, not exactly Widget, but whatever..) Others in the construction process were not happy with the bait’n’switch. The lumber built into several different construction products had to be torn out and replaced. One can only imagine the delay and added expense.

This is construction litigation. As we all know, even a relatively modest construction project can involve tens of millions of dollars and tens of thousands of hours of labor. It requires close coordination and intense collaboration of many different businesses over months-long complex schedules. Things go wrong. Insurance is necessary.

Maybe some day humans will feed all available relevant data into a computer program (the parties’ contracts, subcontracts, insurance contracts, time records, invoices, change orders, pay stubs, payments, credits, debits, expense records, expense reports, emails, text messages, voice-mails, building prints, building permits, technical specifications, inspection reports, etc.) and the program will to use all of this data to generate “factual findings” (reconciling the material inconsistencies in the data and weeding out all falsehoods). Then the program will take “the facts” and run them through a “law filter” (taking into account the applicable choice-of-law rules and all applicable contractual choice-of-law provisions). This filter would take the facts and determine their legal effect. Finally, our computer program would generate an output, maybe something like: X and Y owe A, $ X,XXX,XXX, divided 22% and 88%, respectively.

Some will suggest that day is not far off but few would suggest that anything like this is likely in the next several decades.

 

 

 

One thought on “Could Computer Software Pass the Multistate Professional Ethics Exam (the MPRE)? Should it Be Required to?

  1. AESipila

    We want trial by fire, send our data into the flames of Artificial Intelligence and believe in the justice of the outcome. If we believe justice is served, then justice is served, right?

    Would an AI computer program convict Steven Avery?

    Nice blog. I’m flattered to be quoted. I think.

    Reply

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