What's at 'steak' for artificial intelligence and litigation practice? AI is not A1
Marcel Strigberger.
This is a good a time as any to talk about artificial intelligence. In four words: I don’t like it. I am a technophobe. I spent more than 40 years in a litigation practice in the Toronto area, and given the rapid technological advances, I can easily say I’m happy I retired. I actually practiced in the days where we used typewriters, carbon paper and liquid Wite-Out. I started in 1974 B.C. (Before Computers), which qualifies me sufficiently to comment on the subject of AI. I don’t even like Google.
What I gather is that artificial intelligence is intelligence demonstrated by computers, as opposed to human or animal intelligence. I got this information from a trusted source—Google. This brings back thoughts to that 1968 film 2001: A Space Odyssey, where that computer HAL aboard a spaceship felt threatened by the humans and became a bit aggressive. I guess it was intelligent enough to concern itself with self-preservation.
And speaking of aggressive, I also think about the Luddites. They were a group of English workers in the early 1800s who went around destroying machinery, as they believed this equipment was threatening their jobs. Although technology always made me feel uneasy, to the extent that I can somewhat empathize with the Luddites, fortunately, I never felt the urge to invade any law offices and unplug their computers. And given all the wiring involved, I probably would not even know how to achieve this task.
AI is scary. Even Elon Musk has concerns about AI, saying it could be a threat to the future of civilization. If Elon Musk says it, I rest my case. Given this potential threat to civilization I am now thinking twice about buying a Tesla.
I find that human contact is waning. We telephone some outfit like a bank with a query, such as: “I need to know why the details of my bank account disappeared,” and we are directed to visit the place online where most of our questions can be answered. Right.
And then you see that message online when you want to transact some business where you are supposed to convince the site that you are not a robot. Up pops that grid of about a dozen squares and you are asked something like: “How many show a picture of a bus?” I recently missed on that one, as I counted one square that had only a bus driver in it. Maybe he was not even on the bus, as the bus was being operated by a robot.
I ask, given that a robot probably is behind this harassing quiz, why does it care if you are a robot too? After all if you are a robot, aren’t you on his team? Robotic envy?
How might AI permeate the litigation practice? What do I see in my crystal ball?
Consider examinations for discovery or depositions. Lawyers are not supposed to coach their clients as they testify. But how many lawyers can swear they never gave their clients now and then during pointed questioning a kick in the shins? Will artificial intelligence eliminate this verboten practice?
Not necessarily. Technology will no doubt step up to the plate, (or should I say, under the table), to make sure that your client makes the right choice of answers. The lawyer and client will wear a set of headphones, and when the lawyer’s brainwaves sense that the client is about to say something stupid, the lawyer will squirm, activating from the client’s side a large swinging boot. Hey, they laughed at Edison (“Lightbulb pshaw!”)—I’m just calling them as I see them.
Trials, of course, will be radically different. Artificial intelligence will no doubt be the order of the day, but the jurors will all be robots. This will save time and money. Gone will be the day where the sheriff sends out those letters to prospective jurors, many of which usually respond they cannot serve as they are exempt in some jurisdictions, being police officers, lawyers or serial hackers.
And, of course, jury selection should speed up. The court registrar draws a card out of a drum announcing a name and occupation, and the robot stands up citing its name and occupation, and lawyers can accept or challenge: “Zarkon 768—fish packer at Costco.”
Personally, I was always easy with jury selection, though I would likely challenge any robot with a face like a Picasso painting. I find I something untrustworthy about anybody with one ear on his chin, no mouth and three noses.
And the judge would not have to send this jury out for a voir dire while the lawyers argue over admissibility of evidence. The judge would just say to the jury, “Pay no attention to these lawyers now. They’re just blabbing.”
The jury would likely respond in unison: “We obey.” (During this hiatus, that Costco robot might just offer the visitors in the body of the court some samples of chopped herring).
My concern is that, of course, juries might resort to technical shortcuts to arrive at a verdict. I can readily see them retiring to the jury room after the judge’s charge and the foreperson bellows out, “Hey Siri. Is the guy guilty or not guilty?”
Which brings me back to the judge. Why not? After all, robots are putting together cars, performing surgery and beating grandmasters in chess. Do we see the future trials adjudicated by robot judges?
“Oyez, oyez oyez, all rise for the judge, Justice SOL.83.”
And to keep pace with reality, some judges would have to be created nasty. I can think of one local judge who insisted that male lawyers appearing before him wore black or gray pants. I saw a lawyer unwittingly wearing brown pants, and the judge chewed him out saying, “Counsel, I can’t hear you.”
We may not be far from the day when a robot judge says to a lawyer, “Error error. Please remove those red suspenders.”
I suppose the lawyers’ gossip chatter about judges would be similar as it is now with some twists.
“How’s Justice X-311?”
“He’s a hanging judge. But fortunately, my last appearance before him resulted in a mistrial. His battery ran out.”
With AI such as ChatGPT, I also see potential confidentiality problems. Is it possible the robot could turn against the lawyer, trying to blackmail said attorney? “Hey insurer, I know you are prepared to offer $1 million to settle this action. What’s it worth to you for me not to divulge this information to the plaintiff’s lawyer?”
Being a technophobe my main concern would be the expected tech glitches. But then, of course, there is no problem, as you always have the availability, comfort and ease of tech support. Just go online. Or hit some chat box. Or ask your personal robot.
Marcel Strigberger, after 40-plus years of practicing civil litigation in the Toronto area, closed his law office and decided to continue to pursue his humor writing and speaking passions. His just-launched book is Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging. For more information, visit MarcelsHumour.com and follow him at @MarcelsHumour on Twitter.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
