A Little Automation in the Field of Law
 
Brooke Soper


 The question of what should be automated in our world is one that deserves serious contemplation.  In a time when technology seems to race past our population at an incredible rate, the thought of our whole world being automated is not a radical concept.  It has been predicted that in the near future, every aspect of our society will contain some sort of automation.  But what is automation exactly?  A Webster’s Dictionary for college students defines automation as “the handling and fabrication of materials by automatic machinery, especially when no part of the process is done by hand.”1   The same source gives the definition of automatic as “operated by self-acting machinery.”2   My idea of automation is a machine taking over a job that a human used to perform in such a way that the machine acts on its own to accomplish the task.  Webster seems to aim at automation under the terms of machinery; but in our world today, most of the automation we are concerned with involves computers.  Computers are said to be a billion times faster than human beings and are known for their capability to hold more information than humans ever could.  So in a world where automation is beginning to gain more and more ground on a daily basis, most aspects of our society have seen its effects.

This is especially true for the field of law.  There is an important need in this field to remain organized in order for it to be successful. This task requires that billions of laws be filed in an efficient way so they can be accessed on a daily basis by lawyers and judges in order to formulate case arguments and decisions.  Now that computers are an essential part of our business world, it seems obvious that some type of automation such as a software program should be introduced into the field of law to help remain organized.  But beyond the simple computer program, what about the thought that the whole system itself could be automated?  Believe it or not, this thought is already being discussed, and systems are already being designed for that purpose.  In the following paper, I will talk about three different types of automation currently used or proposed for use in the legal system.  The first item is known as a “contact manager.”  The specific contact manager I investigated is called “CaseTrack.”3   The next type of automation is in the area of personal relationships surrounding the legal field.  Although I did not find a specific type of software, I did find the general idea about how personal relationship software would work.  The final automation, by far the hardest to imagine, is something known as the automated legal magistrate.  This is essentially an automated legal system that would determine the outcome of cases all on its own.  I will first describe each individual type of automation and then I will try to figure out which, if any, of them is good for our society.

One type of automation that has entered the field of law is the contact manager.  This is a type of software that allows law firms to centralize all of their important information.  The specific contact manager that I researched is known as “CaseTrack.”

The main idea behind CaseTrack is that it allows the user to recall information from a series of eight separate modules that can integrate if need be for more specific needs.4   The eight modules (or areas) are: matter, dockets/calendar, chronology, firm, invoice, budget, file management, and time keeping.5   Together, the eight modules allow a lawyer or firm manager to find and review all areas of information associated with his or her firm.  The modules have the capability to list and organize cases, case subjects, contacts, court dates, outside counsels, expenses, budgeting matters, deadlines, etc.6  Contact manager allows lawyers to organize and access their business in an efficient and productive way.  CaseTrack also has an ad hoc query, or search module, which allows the user to find and integrate different case material.7  For example, if a lawyer needed to know anything and everything about the corporation Paine Webber, the lawyer can access the ad hoc query module and find the information in a matter of seconds.  The information can be anything from court cases in which the corporation was involved to the lawyer who handles its day-to-day business.

CaseTrack seems to accomplish a few tasks. First of all the organizational aspect of the software allows firm management to keep track of law firm performance on a whole scale as well as individual level.  It also gives lawyers the ability to access information requests in a short period of time.8   I can think of a few downsides to this type of automation.  First of all, the task of integrating the software into a law firm is a very large one that takes a great amount of time after installation because you then need to teach the firm how to use the software.  Not only will it take time, but it will also take a lot of money.  That is the second negative aspect associated with CaseTrack--it seems expensive.  If we also take into account the fact that the system may need to be designed especially for a specific firm, it can be even more expensive.  Another risk with using a software program is that advances in the field of software programs are being made every day, so there is a chance that a new program will be created after installation that would better suit a firm’s needs.  But this is a risk with any form of automation that comes in a software system.  However, if you look at that automation on a full-scale level, it seems that this type of automation would be an asset to any legal firm.

The second type of automation I found in the legal process also deals with a software program.  This program was designed to combat one of the main problems of the contract manager:

when that data is coming from dozens, hundreds, or even thousands of individual databases, it is virtually impossible for a database administrator to eliminate duplicate entries, old records, miskeyed data and the like.  As a result, firm mailings, newsletters, invitations and other communications almost invariably contain embarrassing errors that harm a firm’s professional image and client relationship.9
Problems like these occur often in a law firm, and can damage its professional image.  I did not find a specific program that would take care of these problems, but I did find a description of a type of software that already exists.  This software is like a contact manager, but it specializes in maintaining good relationships between the law firm and their contacts.10   It does so by providing a main point of entry into the system, so that, for example, you could enter in the name of a person you just met and would like to mark as a contact.  You enter the name into the system, and the system automatically checks for duplicate listings.11   If there are duplicate listings, the system will alert the lawyer and then place that contact in a personal folder, but not in the main contacts for that lawyer since someone else already has the person as a main contact.12   This allows you to build on existing relationships and win new clients by having enough information to make the right moves.  For example, say you have just met this man who you would love to have as a contact.  You enter his name into the database, and it appears that two people in your firm already know him.  It says that the first lawyer’s son plays soccer with the contact’s son and the second lawyer worked with the contact at a previous company.  After a few more clicks of the mouse you find out that in order to get anywhere with this man, you need a reference.  So you then find out that one of your very good clients works in his company, and you have your reference.13

 The problem with this relationship management software is that while it seems wonderful to the lawyer, how would the public feel if it knew that lawyers were essentially “cheating” to acquire their information about us?  Another example given by John Lipsey involves a situation where an angry client is on the phone waiting to talk to someone about his case that has been ignored for the last month.  A lawyer who knows nothing about this man could look up his name on the contact manager and find out that he likes to be called by his first name, that he loves the Red Sox, and then all the rest of the information about his case.14   This information would allow the lawyer to pick up the phone, call the man by his first name, invite him to a Red Sox game, and all is solved.  But how would the man feel if he knew that the lawyer truly didn’t have any clue about him, or his personal preference?  Cheated.  That is why some people might view this type of software program as a con, a way to trick people into thinking that their personal relationships are important enough to lawyers that they would take the time to get to know them personally.  What would happen to that lawyer if he met this man at a later date, and forgot his name and his love for the Red Sox?  I would bet the client would take his account to a different firm in a second.
This one particular automation program reminded me of Kurt Vonnegut’s Player Piano.  The idea that a human being is just an article to be automated is seen in the section of the book where Dr. Paul Proteus goes to the Meadows,15  a sort of summer camp where the most important managers and engineers go for two weeks to compete in various games.  The managers and engineers are the leading businessmen who set up the automated society that is the basis for Vonnegut’s book. This passage angered me because the system that I was reading about seemed to impersonalize, or not pay attention to, the people involved.  The software relationship manager gives me this same feeling.  Instead of contacts being important enough to remember details about their lives, they are now entered into a system to be kept track of.  It seems like they are now just “entry #23” instead of John Smith.  I always get a little scared when I see this sort of thing happening, because it takes the personal interactions in our world and essentially automates those interactions.  Although the software program seems wonderful for a law firm, I don’t know how wonderful it is for the clients.

Beyond using software to help automate the legal field, what would one think about automating the field as a whole?  What would happen if we erase lawyers and judges altogether and insert what is known as an automated legal magistrate?  What some might not know is that “strong artificial intelligence” researchers are currently trying to build a system that will be just like an automated legal magistrate.16  Michael Aikenhead wrote an article on this topic called “A Discourse on Law and Artificial Intelligence.”  In this article, he spoke about using the “discursive theory of law” to build an automated legal magistrate.   The main idea behind this theory is that law is not primarily based on rules, nor on case-based reasoning; it is instead a process of arguments between parties.17   The reason why the rules of law or precedent cases cannot be used is that those rules and cases are open for argumentation themselves.  Researchers are trying to create a reasonable theory for the legal magistrate by modeling the process of discursive argumentation that is the essential part of law and legal reasoning.18   Advocates of AI (artificial intelligence) feel that computers will eventually be able to “think” just as human beings can.  So when strong AI proponents look at the idea behind the legal magistrate, they might conclude that it will eventually be able to make fair and reasonable decisions just as intelligently as a human being could.  They believe that in order to build the legal magistrate under the discursive theory of law, they need to know what amounts to an argument for a conclusion, what amounts to an attack on an argument, what amounts to support of an argument, and what amounts to a defeat of an argument.19   This seems like a very large task to do, but it is essentially the core of legal cases.

One question cited by Aikenhead is that if everything can be argued, when will argumentation terminate?20   He answers this question in two different ways.  First, arguments can be settled by referring to meta-norms and choosing the strongest or oldest norm to solve the problem.21   Second, sometimes arguments just need to be settled without justification.22   The main point of the legal magistrate is to identify main issues of cases rather than just make a decision based on the main claim, and this is done through the discursive argumentation process described above.

So the next step would be to ask what automation, if any, should be done?  If we compare the three different types of automation described in this paper, it is easy to see where the differences fall.  CaseTrack is a simple software program that does not use radical technological ideas.  It is easy to use, and efficient in keeping day-to-day articles organized.  The pros of using a system such as this one seem numerous.  So should lawyers use this type of automation?  It does not place people’s jobs in jeopardy because there is still a need for secretaries to enter information into the system.    This software seems efficient, helping to organize the chaos of a law firm.
Whether or not the relationship manager should be used is a different story.  As far as the law firm is concerned, the system seems like a very helpful tool. The ability to recall names and data immediately upon request eliminates the time that it would have taken to find all the information.  But if you look at the software in ethical terms, whether it is morally right to use this type of software program, the question of automation is a little harder to answer. A major concern is the ability of this software program to depersonalise the relationship between lawyers and their clients, who could be appalled to find out that they were just entries into a data system.  In this instance, the relationship software would accomplish just the opposite of what it is trying to do.

The question of an automated legal magistrate is at the other end of the spectrum because it would take control over the whole legal system.  I see a few problems with using this system. First, a big argument against automating processes that were previously controlled primarily by humans is that a computer lacks the emotions and experiences to make informed decisions.  While it is certainly true that we could tell a computer that murdering is bad, would a computer essentially know why?  Would a computer ever have a relative who was murdered? Could a computer ever know the feeling of pain and loss?  Can a computer empathize?  I don’t think so.  One of the qualities that makes a judge good at his or her job is the ability to empathize and understand how and why things happen.  If a computer doesn’t have this ability, then how could it justify its decisions?

The second problem with the legal magistrate has to do with the flow of legal trials.  The discursive theory on law that I spoke about earlier says that the legal system is essentially an interaction between arguments.  In order to solve cases under this theory, the system needs to delegate the rules and points behind arguments.  This seems like a non-natural flow of a court case.  What the system is essentially trying to do is find the flow of an argument, but that’s just the problem--arguments are heated and quick- tongued.  It may be true that legal arguments are well thought out, but sometimes points are made by witnesses who are placed on the stand and who falter in their wording.  Can a legal magistrate automate that?

Another problem deals with the main question of whether we should automate this system.  Joseph Weizenbaum, in Computer Power and Human Reason, states that “the question is not whether such a thing can be automated, but whether it is appropriate to delegate this hitherto human function to a machine.”23   According to Weizenbaum, we should ask whether it is appropriate to delegate this task to a computer.  To answer, we need to look beyond the technological points of a legal magistrate to understand exactly what we are doing.  If this system were automated, we would be giving the power of deciding which laws the human race is going to live by to a computer.  Does it seem right that something which is not human should have the power to decide how humans live their lives?  Also, humans would no longer be in control.  What happens if a legal magistrate makes a decision that seems incorrect to a human?  Who is to say that the computer is wrong?

Beyond that point, we would be replacing a whole profession with a computer.  This legal magistrate would take away every lawyer and judge’s job.  This seems like an extremely sensitive issue.

But on the other hand, maybe the legal magistrate could take away some of the corruption that occurs in the field of law.  The legal system is supposed to be a place where people go to win against an unjust situation, but sometimes outside circumstances take over the system.  Take a look at the O.J. Simpson case.  Some people felt that a famous person walked away from a case where he was obviously guilty just because he had enough money to buy good lawyers.  A legal magistrate allows us to think that this type of situation could never occur under its rulings.

So what are we to think?  The legal magistrate seems to have a lot of negative aspects attached to it, and just a few positives.  It seems true that it might help make the legal system a little more just, but at the same time, it removes a whole profession from the business world and reduces human contact.

At the end of his article on the legal magistrate, Aikenhead states, “jurisprudence (the field of law) itself can learn something from the application of artificial intelligence of law.”24   This seems to strike at the same ideas that Shoshana Zuboff writes about in her book, In the Age of the Smart Machine.  The idea behind this is that automation can be informative also.25  Once the technology reaches a certain point where there is enough data entered, the data can be used by the computer to acquire knowledge on its own.  I think this is what Aikenhead has in mind when he writes his last sentence.  But somehow, the idea that we are going to learn new things from a computer (or legal magistrate) is hard to handle, because didn’t we create the computer ourselves?  But others feel that we learn from working on building the legal magistrate because builders have to break down what makes the field of law work.

There are many different types of automation.  Some types are easier to grasp than others.  In this paper, I wrote about three different types of automation and debated whether or not such automation should be used.  The contact manager is extremely realistic and efficient, so I feel it should and could be used.  The relationship manager, although realistic, has some ethical problems, so I am uncertain whether or not it should be used.  As for the legal magistrate – the idea behind it is extremely hard to grasp.  The positive aspect of using such a system is that it reduces the chaos of a hectic field, but on the downside, it might be a little too early to let an automated system decide the laws our society should live by.  No matter what I think, it seems inevitable that our world, and the profession of law, is taking steps daily to reach the point where we have an automated legal magistrate.  Whether it is the first steps of a software program or a contact manager, there is always someone who will want to advance automation in the field of law.