The Lawyer’s Catch 22

Sep 19, 2018

This post is Part Two of a new series based on the TEDx talk, Transcending Books: What’s Next for Law and Society, given by Blue J Legal’s CEO, Benjamin Alarie. Read Part One here.

It should come as no surprise to anyone involved in law that complexity and overwhelming information, from case law to legal opinions to expert documents, are engulfing the industry.

As illustrated in a previous blog post: “In this digital age…the explosion of legal materials and the globalization of the law has magnified a centuries-old problem of managing volume and locating relevant cases—only the stacks of papers and books that once covered a lawyer’s desk have been replaced by a collection of browser tabs on the computer screen.”

To put it bluntly, lawyers are stretched thin. In Canada, the total number of civil cases reached 325,000 in 2016-17, up from 312,000 in 2012-13. A 2018 survey of litigation lawyers in the U.S found that a high percentage of lawyers — 54% — expect the volume of litigation cases to increase over the next year, according to accounting firm Grant Thornton.

As Alarie says in his TEDx talk: “It should be obvious that we cannot fundamentally solve our problems surrounding legal complexity and uncertainty by publishing longer and more elaborately explained versions of the Internal Revenue Code.”

He notes that lawyers are stuck in a catch-22: The more clarification provided through more explanation and regulation, the harder it becomes to achieve the goal of complete comprehension of the system.

This challenge is analogous to those faced in other professions, such as health care: When a medical professional is inundated with complex breakdowns of a drug’s side effects, for example, it can be more difficult to determine the pros and cons of that drug. In addition, it can be arduous to translate that “medical-ese” language to patients who want a clear explanation of what will happen to them once they are prescribed that drug.

Alarie adds: “Legal uncertainty is a pervasive feature of modern life…Typically, in a lawsuit one side or both sides are making a mistake—they are making the mistake of believing that their legal position is stronger than it actually is.”

An example of such causes is discussed by New York University Professor Kevin E. Davis in his paper, The Concept of Legal Uncertainty: Definition and Measurement:“Unpredictability and ignorance tend to arise where officials are not bound by clear and binding authority and therefore enjoy discretion to select either legal outcomes or legal propositions,” Davis explains.

He goes on to say: “Discretion of this sort may be granted either implicitly, or explicitly by using vague words such as ‘reasonable’ or ‘due’ to define rights and duties. It also arises where authorities are contradictory or transparently absurd. The less information actors have about the factors likely to influence the exercise of discretion, the more ignorance they will experience.”

How can legal uncertainty harm businesses? An Oxford University study found that an increase in legal or factual uncertainty harms firms “when enforcement is targeted, meaning that greater deviations from what the law demands lead to a greater probability of enforcement. Regulators may target enforcement because more egregious violations are easier to prove in court, because they produce greater recoveries if sanctions are graduated, because they offend the enforcers’ sense of justice, or for some other reason.”

Past advancements in technology have attempted to reduce legal uncertainty. We witnessed such innovation in 1973 with the arrival of Lexis, now LexisNexis, and in 1988 when the Judicial Conference of the United States adopted PACER (Public Access to Court Electronic Records). These two pillars of legal technology helped move thousands of firms into the digital era.

Yet, impressive as these advancements were, a key challenge remained: these tools often yield over or under-inclusive results that require hours to search through. This is where AI-based computational tools excel.

Blue J Legal’s Case Finder, for instance, allows users to search by relevant facts and outcomes instead of keywords or citations. The system scans all relevant cases in the selected area of law in seconds, producing a concise list of immediately actionable cases that most closely align to the user’s situation. This type of tool represents a generational leap forward in legal research.

Adding layers of artificial intelligence to the legal profession has prompted certain companies to envision a future where legal uncertainty fades to black.

Alarie says the spread of artificial intelligence to legal research is going to happen across all areas of the law.

As his paper on the topic notes, “The growth of big data, artificial intelligence, and machine learning will have important effects that will fundamentally change the way law is made, learned, followed, and practiced.”

“Our vision is to bring absolute clarity to every area of the law, everywhere and on demand,” he says in his TEDx talk.

What the legal space will have to work towards is using an improved understanding of the law “as a basis for reforming the law, such as identifying how the law is currently mis-specified, and leads to peculiar or unwanted results,” Alarie says.

Once the patterns emerge and become more visible, the effort is just beginning: Alarie says: “We have much work to do to ensure that the results that the legal system generates are fair and that access to justice is more equitably distributed.”

The final step to what Alarie calls the legal singularity will emerge when “the law will be a self-referential system that can generate its own answers upon demand.”

Reaching that level will eliminate legal uncertainty and opens the doors for the legal system to become “more transparent, more accessible, more fair, and more just.”

Alarie concludes his TEDx talk by remarking on the promising road ahead: “Within our lifetimes, I expect that our laws will be self-driving, and you won’t have to worry about legal uncertainty ever again.”