We were not used to mentioning the words law and technology side by side until today. As a result of technological developments since the beginning of the 2000s, we have often talked about the law of technology (e.g., cybercrime, information security, electronic commerce, cybersecurity, internet law, and personal data protection). However, law technologies, using technology in the legal world, is relatively a new topic.
We see that developments in this area are parallel to the widespread use of the internet. Significant milestones for lawyers started after 1993 when Turkey connected to the internet for the first time. The publication of the official gazette electronically, the creation of legislation and case-law database programs, the implementation of applications such as the electronic signature, the electronic justice system, and the electronic government portal have all been realized in the early 2000s.
All these technological developments affect legal developments, and as our expectations from technology increase, we need new regulations. In this sense, we see that the new Turkish Commercial Code accelerated the use of technology in law and affected other legislative studies. Many new applications entered our lives, such as the electronic notification system, electronic trade registry records, electronic book-keeping, electronic general meetings and board meetings, corporate website launching obligation, the electronic money, electronic notary public, and data matrix embedded checks.
I have mentioned the key technologies that we have been using in our duties as lawyers, which are essential for the Turkish legal world for the last 20 years. What about the technologies that we are not yet using, but we will start using soon?
The most talked about and debated of these technologies today is AI, i.e., artificial intelligence. The difference between artificial intelligence from computer programs we have used so far is its ability to think, learn, and improve itself. The first appearance of artificial intelligence was the 1997 chess championship, in which Deep Blue defeated the world chess champion Kasparov; for the first time in this championship, a computer won. With this growing technology, after 20 years, we learned that in 2017, Facebook suspended an experiment as their two artificial intelligence programs developed a language that people did not understand. Undoubtedly, artificial intelligence researchers are also working on using this technology in the legal world.
Technology versus Human Lawyer
In February 2018, researchers conducted an interesting experiment in the US, where this time, artificial intelligence and humans competed on a legal matter. The competition compared the human lawyer’s performance and artificial intelligence called LawGeex to review standard commercial contracts. For this purpose, researchers decided to use five typical confidentiality agreements. Confidentiality agreements are agreements made at the beginning of negotiations in many commercial operations, and they are strategic contracts for the protection of trade secrets and intellectual property rights.
20 US lawyers from various law firms and companies with more than ten years of experience in corporate law and contract review and artificial intelligence developed for three years and trained by thousands of contracts competed in identifying legal issues in these five confidentiality agreements. Researchers conducted this experiment under the supervision of an independent consultant and lawyer with the contributions of academics, data scientists, legal education experts, and machine learning experts.
First, law professors from reputable universities and experienced lawyers identified 30 legal issues that could arise in a standard confidentiality agreement. These issues provided the basis for assessing lawyers’ and artificial intelligence’s accuracy in identifying issues while reviewing confidentiality agreements. Five confidentiality agreements chosen were those used in real life by five large and different US companies. The artificial intelligence algorithm has not processed any of these five agreements before. Artificial intelligence reviewed these new agreements based on thousands of contracts it has previously processed. The experiment was designed in line with the scenario as if customers uploaded a new transaction to artificial intelligence for the first time in real life. On the other hand, each lawyer had four hours to identify the legal issues in these five confidentiality agreements, and lawyers earned money for their services as in real legal work.
After two months of extensive testing, artificial intelligence, with an accuracy of 94%, prevailed lawyers who achieved an average accuracy of 85%. Lawyers spent a total of 92 minutes on average for five agreements, while artificial intelligence spent only 26 seconds! Artificial intelligence reached 100% accuracy in one contract, while the highest accuracy was 97% for lawyers. Besides, throughout this assessment, artificial intelligence never needed coffee!
This development does not mean that artificial intelligence will do the lawyers’ work from now on. At least for now! However, we can conclude that artificial intelligence can be an essential tool that can help us conduct our work and save time.
Artificial Intelligence in Law
Regarding the current and future use of artificial intelligence in the legal world, a detailed article published by Fordham Law School sheds light on us:
The request for pre-trial documents, one of the rules of procedure applied in some lawsuits in US courts, is indicated among the matters artificial intelligence is very competent. In the request for pre-trial documents, both sides of the case must submit all information and documents related to the other party’s dispute for review. In this way, the parties to the lawsuit have access to evidence supporting their claims and defenses. Artificial intelligence enters the stage and helps to examine all the information and documents presented. Thanks to predictive coding, a more advanced program than keyword search, artificial intelligence can quickly identify the necessary documents. Not surprisingly, there are documents that this program does not notice when necessary or does mention when it is unnecessary, but human lawyers also make similar mistakes. Some courts, which find this software’s cost and performance comparable to the traditional document review method, allow its use in the electronic document review procedure. Some law firms in the US have begun to use this technology for large commercial lawsuits as well. Thus, artificial intelligence took over the document review, on which less experienced litigation lawyers used to spend a great deal of time.
As for the searching for high court precedents, which is a significant part of lawyers’ work, the research anticipates that artificial intelligence will entirely edge out humans in the future. Today, many law firms in the US have already begun to take advantage of artificial intelligence, searching for high court precedents on a specific issue, which was traditionally a task for candidate or less experienced lawyers! Thanks to advancing technology, rather than a conventional keyword-based search program, there will be a semantics-based software. So, artificial intelligence will respond to a specific word given to it and further consider other relevant information while responding to a search request.
Researchers experiment with another program that focuses on legal matters. This software will have superior features over the semantics-based software, enabling searching according to concepts instead of words.
Again, researchers are also working on another topic, enabling artificial intelligence to decide whether a precedent found in the search will be a strong enough ground for a relevant lawsuit. For now, a human lawyer makes this decision, but researchers expect improvements in the next ten years.
Template legal documents are another area that artificial intelligence can help. Artificial intelligence can personalize such form documents by adapting them to individual circumstances. For example, in the US, with the LegalZoom program, you can create your draft testament by entering information about your assets and other information depending on how you wish to use the estate. Experiments are in progress for the creation of many other legal documents by artificial intelligence. Developing the forms by linking certain contract forms to court precedents relating to these contracts is among the experiments. For now, a human lawyer needs to work on and make countless corrections on a draft legal document created by artificial intelligence. Though, given the time spent preparing the first draft by a human, it is no doubt that artificial intelligence will accelerate us.
Researchers expect that artificial intelligence will prepare the first draft for many legal transactions in the next ten years. In the future, such as a human lawyer, artificial intelligence would design personalized and case-specific contracts according to a matter’s characteristics and relevant legal issues and follow these contracts’ outcomes through future lawsuits.
Artificial intelligence will seem to play a role in the creation of court petitions and legal opinions as well. Like in contract drafting, artificial intelligence will initially form the first draft of a court petition or a legal statement, and a human lawyer will need to work extensively on this draft, but the draft would be equivalent to a draft of a candidate or a less experienced lawyer. A simple example of this was tried in journalism in 2014 through a computer program writing a news article to the Los Angeles Times about an earthquake. Researchers are currently experimenting with more sophisticated algorithms. These algorithms would shape their drafts according to the information they will gather from legal search programs to be connected while drafting. Artificial intelligence would also create the first draft of court petitions or legal opinions in the next ten years.
In addition to traditional legal work, artificial intelligence studies are also interested in establishing connections between law and new disciplines. For example, predictive analytics is a new discipline in terms of the law. The data, which is known by several computer-generated models, is used to predict what will happen in situations not occurred yet, like predicting the outcome of a lawsuit. An enormous amount of data, including case-law, court petitions, and other documents, is quite suitable for data mining in this analysis method.
As lawyers, we implicitly predict a lawsuit’s possible outcome through our legal advice, such as filing or not filing a lawsuit or settling, but we base this prediction on our own experience, knowledge, and research. On the other hand, predictive analytics uses large amounts of data far beyond an individual lawyer can access and penetrate. Some universities and companies in the US are currently using this method. For example, there is a program called Lex Machina dedicated to patent lawsuits that were initiated with the collaboration of Stanford University’s law and computer science departments and then formed into a company. However, it is worth noting that this method of analysis only generates a predictive result, not a definitive one, and for the time being, the opinion of a human lawyer is still crucial for the final assessment.
The Limits of Artificial Intelligence “for Now”…
There are matters where artificial intelligence cannot add value despite all its skills. For example, we do not expect artificial intelligence to be present at hearings soon. Furthermore, human lawyers specializing in new laws and regulations are likely to prevail over artificial intelligence. For now, artificial intelligence is successful in conventional and stable areas. Therefore, we anticipate that its use in countries like Turkey, where the legislation changes rapidly and continuously, would probably not be satisfactory at the preliminary stage.
What is more, human lawyers do much more than legal analysis. A human lawyer establishes a long-term trustworthy bond with their client based on professional and ethical rules. Moreover, they often hear not only what their client says but also what their client does not say, questions insistently the incomplete or inaccurate information, gets the right information, creates solutions for issues that have never arisen before, and can take on the role of convincing their client, who may be reluctant to do what is in their favor. It is unlikely that artificial intelligence can reach such a level of reasoning and emotional intelligence soon, but one day, of course, it may also be possible. At that stage, even appointing artificial intelligence as a judge may be a matter of discussion!
Looking at where artificial intelligence stands today, we need to make innovations in two areas. The first is the need to adopting a different approach to legal education. If artificial intelligence starts to do the work of a lawyer who has no experience, how a human lawyer candidate will get the expertise they need to acquire can be a problem. The second issue is the law of legal practice. Our bars and the Union of Turkish Bar Associations will need to work on lawyers’ use of artificial intelligence while providing legal services. We will need to discuss and resolve matters such as ethical rules, attorney-client confidentiality, and the use limits of such a technology. Accordingly, as the use of artificial intelligence by non-lawyers may come to the agenda, specific measures and regulations will also need to be introduced to prevent any impairment to a layperson in using artificial intelligence without a lawyer’s supervision.
While lawyers are under civil, criminal, and disciplinary liability, will artificial intelligence, a kind of software and computer program, have civil and criminal liability? If so, how? These issues are among the critical legal matters that we need to resolve as artificial intelligence technology develops.
We need to follow all these developments and use necessary technologies to the extent appropriate to provide better services to our clients.
Av. Müge Önal Başer, LL.M.