Moving from dot-com courts to bot courts

Good law needs good judges. Good judges closely examine their powers to see whether they are able to provide a remedy for a clear wrong. A good judge is also imaginative, able to see beyond the yes/no checklists that satisfy too many jurists.

This approach is seen in the judicial path leading from the 19th century landmark English case of Salamon, separating individual and corporate liability, to that of the recent case of Prest v Petrodel Resources Limited in which the UK Supreme Court held that, in family law, if the need arises, the corporate veil can be lifted to verify who is truly controlling the companies.

The law now faces a new challenge, artificial intelligence (AI). Widespread use of and hope for this technology, man-made and not heaven-sent, is ushering the world to an era of mass unemployment and displacement even if it is ultimately beneficial. In 1996, the futurologist, Richard Susskind predicted email communication would revolutionise the legal industry. Today, it is only surprising that the prediction was ever an impossibility. Now, Susskind foreshadows another renaissance in which AI-adopted outcome thinking could resolve disputes outside the traditional court system. Indeed, during covid-19, the world resorted to virtual or dot-com courts to keep open access to justice and reduce backlogs.

At present, AI assists law offices to a limited extent with case and document management, e-discovery, legal research, producing contracts and predicting dispute outcomes. Litigation funding bodies relying on AI’s predictive analyses to enable them to make informed decisions before funding, would benefit most from AI in an otherwise uncertain future of AI-based law.

However, AI-assisted law is much closer. In the future, governments may make the use of AI compulsory for initial access to courts and for evaluation of cases, enabling litigants to make informed decisions. Courts could adopt AI to filter urgent cases for early hearings and governments could penalise lawyers for not installing AI to help clients.

Legal industry hiring patterns may change, with AI-assisted drafting, communication and research replacing the work done by young lawyers. Despite this, a human ability to recognise and apply empathy, have presence of mind and adapt arguments to varying and original interpretations of the law is essential. Analysing judgments with intelligence and much-needed emotional quotients is a skill that AI can never master.

Countries are still relying on hybrid digitisation to deal with covid-19, putting off a future in which disputes are resolved through AI. That most countries are firmly against granting solely AI-generated works protection under prevailing IP law itself shows the industry’s hesitation to evolve so far so soon. Jurisdictions such as the USA, Europe and India have even rejected recognition of joint authorship with AI. Only the UK recognises AI as a potential author. A future where AI overpowers the legal industry is unlikely to materialise soon, as AI is yet to be recognised as a valid contributor to society.

Legislation or governance is another area where AI may be a controversial participant. The apparent effectiveness of AI-drafted legislation in achieving goals will deprive adjudicators of the opportunity to interpret legislative intent due to little or no legislative scrutiny. This will deprive the courts a much-needed source in deciding cases. Human-drafted legislation is more mindful of practicalities than AI, which tries to produce solutions based on idealistic input. Such instructions will likely overlook the realities inherent in situations against which the legislation is aimed. An illustration is the insertion of article 300A of the Indian Constitution, which states that no person shall be deprived of his property except under the authority of the law. AI would either accept or reject a title supporting eviction without ordering a trial. Accepting and appreciating evidence are distinct skills; one needs data only and the other wisdom.

Online dispute resolution through AI may be right for e-commerce or internet-based services disputes. One must be cautious, however, over the way justice is dispensed. While AI-based resolution settles a dispute on commercial principles, traditional law resolves the matter on its merits. The former provides fish; the latter teaches fishing.

Shilpa Gamnani is a principal associate and Harsh Buch is an associate partner at TMT Law Practice.