The Future of Justice: Australia’s Transition to Online Courts

By Victoria Hospodaryk, Katie Jones and Jin Yoo

Introduction

The near universal accessibility of the internet in Australia has led to the simplification of many commercial activities such as retail banking and the lodging of tax returns.[1] Conversely, navigation of the judicial system, which prior to COVID-19 had largely resisted digitalisation, remains a complex, expensive and daunting experience for most litigants. Despite the incremental acceptance of technology by the Australian judiciary, the experience of comparable common law jurisdictions suggests a transition to online courts is inevitable. Proponents of online dispute resolution (ODR) point to Canada’s first online tribunal, the Civil Resolution Tribunal (CRT), as the optimum online court model. Offering  an end-to-end virtual solution that attempts to resolve small claims disputes before the need for trial arises, the CRT is a product of intensive collaboration with legal and IT professions. This article does not necessarily suggest Australia can feasibly adopt such a solution in the short-term, but analyses the opportunities and challenges that ODR brings, both inside and outside the courtroom. As recent COVID-19 case law indicates, the race to digitalise dispute resolution raises unique challenges for all parties involved, ranging from procedural obstacles of witness management and document sharing, alongside broader perceptions of formality and fairness in an online setting, and the implication for the adversarial character of our legal system.  While the CRT is capable of improving access to justice by minimising costs, increasing community engagement and reducing court backlog, whether a similar model will succeed in Australia ultimately depends on the ability of the legal profession to embrace change.

The Australian Response: The Acceptance of E-Trials

In the wake of COVID-19, Australian courts have quickly transitioned to hosting court procedures online and despite being confronted with a variety of logistical obstacles, have held that such challenges are generally not intolerable. The recent Federal Court case of Capic v Ford Motor Company of Australia Limited (Adjournment)[2] held that the challenges of technology, witness procedure, document management and trial length were real, aggravated difficulties inherent in virtual solutions, but were not insurmountable or enough to warrant adjournment to a face-to-face trial. The decision suggests a willingness on behalf of the courts to embrace online trials unless parties can prove a special disadvantage that makes an e-trial particularly unfair. Perram J observed the inability of virtual solutions to be applied equally in every case, such as for non-English speaking applicants. This balancing of fairness seems crucial so as to not exclude disadvantaged groups whose court experience may be unfairly prejudiced, and contradict the overarching objective of  ‘just’ civil dispute resolution.[3] A similar decision was held in Australian Securities and Investments Commission v GetSwift Ltd, [4] where Lee J noted the failure of logistical challenges to create ‘any real risk of practical injustice’ [5] to warrant adjournment. His Honour encouraged a flexible approach from the court, suggesting out-of-hours sitting to facilitate different time zones and revisiting adjournment if ‘real prejudice’ arose.[6] The decision emphasised the implications of case backlog, and the ensuing prejudice to delayed parties. In this way, such cases align with the need to facilitate just, efficient and inexpensive resolution of civil disputes.

Despite Lee J’s recognition that justice should be ‘perceived to be done by those involved in it’, [7] there is the alterior challenge of upholding the formality of court procedure online. Professor Celia Kitzinger’s analysis of the serious medical case of A Clinical Commissioning Group v AF & Ors [8] considered the perspective of a witness whose father was at the centre of the case, and how the ‘informality’ of online processes injured the party’s perception of seriousness, fairness and substantive justice in the case. This poses a unique dilemma; all parties appear effectively equal in their respective ‘little squares on the screen’, [9] and this can both humanise a process that is often defined by convention and tradition, but equally threaten the sanctity and legitimacy of court procedure. Australian courts have thus acknowledged that adjournments will not readily be granted based solely on general challenges posed from the abrupt shift to online trial. However, they have also observed that virtual solutions cannot cater for everyone, and the unique circumstances of each case must be recognised; an important reconciliation in the pursuit of a fair process.

Risks: Will Technology Compromise the Integrity of the Trial?

As Australian courts have already discovered, the benefits offered by online trials, such as ease of communication, efficiency and alleviated pressures on courts, are equally accompanied by risks.  One of the most serious impacts of technology is upon the crucial duty of confidentiality [10] owed by lawyers to their clients. Client legal privilege is a common law protection against disclosure of certain information[11] held to be privileged within the meaning of the law,[12] and designed to ensure client confidence in lawyers.[13] Nowadays, the pre-trial process presents many opportunities for the  inadvertent disclosures of confidential information through emails, electronic storage and metadata, which is especially problematic given that the duty of confidentiality is essential in promoting positive public opinion and trust in the legal profession. These concerns may be further exacerbated by a transition to online trials, as court hearings, examinations, and confidential legal and personal information are likely to become susceptible to third party interception and exposure.

Furthermore, third party providers often require users to accept their provider’s terms of service, reserving the right for the provider to access, store, and scan information uploaded by users as it sees fit, without the user’s prior consent. While allowing for easy recording and sharing of meetings, video conferencing software also carries security and legal risks, as the court process can essentially be stored in the form of a video recording. Further, if the link providing access to the online conference is leaked to the public, which is likely given the proliferation of emails and online messages exchanged between the stakeholders in the lead up to the court hearing, the hearing may become open to uninvited members of the public. As such, clients may no longer be willing to provide full disclosure for fear of third parties being privy to the information, thus undermining the centrality of the client-lawyer relationship, and the integrity of the trial system.

Canada’s Civil Resolution Tribunal: The Inevitable Solution?

The risks posed by online trials may well be overcome by the introduction of an online dispute resolution platform such as the Canadian CRT, which would also serve to dismantle many of the traditional barriers to justice. Established in July 2016, the CRT was initially aimed at small claims disputes of under $5000 and strata property issues,[14] but has since expanded to matters concerning debt, construction, employment insurance property.[15] Following interaction with the CRT’s Solution Explorer, a chat-bot tool providing free legal information and resources,[16] users can choose to initiate an online claim and are provided the opportunity to negotiate directly with parties to the dispute. If negotiation proves unsuccessful, the next phase involves virtual third party facilitation, who assists parties reach a consensual agreement.[17] If this fails, the facilitator then prepares the parties for online adjudication by a tribunal member, who issues a binding decision.[18]

The entire process eliminates both attendance of a physical court, and the need for a lawyer.[19] As the greatest deterrent to seeking legal recourse is usually the expense of lawyers, it is this latter consideration which is of great utility to the public but which presents the utmost threat to the legal profession. The minimal costs incurred in the CRT process, which totals to approximately $200 AUD for each party,[20] would be welcomed by many Australian users, particularly those in rural communities where the infrequency of local court sittings has contributed to the scarcity of legal services.[21] In British Columbia, the CRT has spared many members of rural communities the time and expense of  travelling hundreds of kilometres to receive legal advice,[22] and has condensed the entire ODR process to ninety days for most cases.[23] While in 2019, the NSW Local Court processed 90% of the 72,070 civil cases filed in the Small Claims Division within six months of initiation,[24] only 2,052 of the 15,028 small claims disputes resolved by the CRT in August 2020 were referred to adjudication by a tribunal member.[25] Thus, just as the CRT has liberated BC’s Provincial Court system of an enormous burden by diverting simple legal disputes to an alternative resolution mechanism, the establishment of a similar ODR system has immense potential for reducing court backlog in, and improving accessibility to, the Australian justice system.

Conclusion

It therefore remains to be seen whether the public, and the legal profession itself, will be receptive of a system which renders the role of the lawyer obsolete as the Canadian model does. While the CRT represents a golden standard of interaction with the legal system online, technological progression in Australia is hindered by the continuing reliance on physical interaction with the legal system, meaning the e-trial may remain a more realistic approach to achieving the just, quick and cheap resolution of disputes.

Endnotes

[1]Rebecca Varley and Neha Bagga Roy Morgan, ‘Consumer Views and Behaviours on Digital Platforms’, Australian Competition and Consumer Commission (Final Report, November 2018) 49 <https://www.accc.gov.au/system/files/ACCC%20consumer%20survey%20-%20Consumer%20views%20and%20behaviours%20on%20digital%20platforms%2C%20Roy%20Morgan%20Research.pdf>. 

[2] Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486.

[3] Federal Court of Australia Act 1976 (Cth) s 37M.

[4] Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504.

[5] Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 at [40].

[6] Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 at  [21].

[7] Australian Securities and Investments Commission v GetSwift Ltd [2020] FCA 504 at [40].

[8] A Clinical Commissioning Group v AF & Ors [2020] EWCOP 1.

[9] Celia Kitzinger, ‘Remote justice: a family perspective’, Transparency Project Blog, 29 March 2020 (www.transparencyproject.org.uk/remote-justice-a-family-perspective/)

[10] Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 9.1

[11] Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67.

[12] Evidence Act 1995 (NSW) s117.

[13] Attorney General for the Northern Territory v Maurice (1986) 161 CLR 457, at [488].

[14] Chief Justice Allsop AO, ‘Technology and the Future of the Courts’ (Special Lecture Series on Technology and the Future of the Legal Profession, University of Queensland, 26 March 2019) <https://www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-justice-allsop/allsop-cj-20190326>.

[15] Michael Briggs, ‘The Civil Online Court in England’ in Rabeea Assy and Andrew Higgins (eds), Principles, Procedure, and Justice (Oxford University Press, 2020) 135, 140.

[16]  Chief Justice Allsop AO, ‘Technology and the Future of the Courts’ (Special Lecture Series on Technology and the Future of the Legal Profession, University of Queensland, 26 March 2019) <https://www.fedcourt.gov.au/digital-law-library/judges-speeches/chief-justice-allsop/allsop-cj-20190326>.

[17]  Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 120.

[18] Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 121.

[19] Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 120.

[20] Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 121.

[21] Law and Justice Foundation, ‘People in rural, regional and remote areas’, Access to justice and legal needs. Stage 1: public consultations (Web Page, 2003) <http://www.lawfoundation.net.au/report/consultations/43EEDFB6FD42A68DCA257060007D4EE1.html#bmk_fnote91>.

[22] BC Judges Compensation Commission, Final Report of the 2010 British Columbia Judges Compensation Commission (2010), 19.

[23] Shannon Salter, ‘Online Dispute Resolution and Justice System Integration: British Columbia’s Civil Resolution Tribunal’ (2017) 34 Windsor Yearbook of Access to Justice 112, 121.

[24] Local Court of NSW, Annual Review 2019 (2019) 20 <https://www.localcourt.nsw.gov.au/documents/annual-reviews/Local_Court_Annual_Review_2019_v1_accessible.pdf>.

[25]Civil Resolution Tribunal, ‘Small Claim Disputes - August 2020’, CRT Statistics Snapshot - August 2020 (Web Page, 2 September 2020) <https://civilresolutionbc.ca/crt-statistics-snapshot-august-2020/>.

GPT-3 in Contract Drafting - Opportunities and Challenges

By Sophia Maranan, Jerry To and Tim Yang

In recent years, we have seen unprecedented technological advancement across broad disciplines, showing great potential and revolutionising the way certain tasks are operated. Such technology is remarkably applicable in the area of law, where artificial intelligence (AI) systems are being used to automate and augment legal procedures such as legal research, e-discovery, contract drafting, and predicting litigation outcomes. In June 2020, OpenAI released a new AI system called GPT-3, a developed language model that has 175 billion parameters.[1] Due to its size, GPT-3 can carry out specific tasks such as generating code, solving problems, and composing poems without the need to input large amounts of complex data.[2] As it is in its beta stage, it is only accessible by a limited number of individuals.[3] Regardless, the introduction of GPT-3 gives access to new opportunities pertinent to the field of law.

The practicality of GPT-3 could help in attaining efficient legal procedures, the development of access to justice, and the reduction of costs for legal procedures such as contract drafting. This article will discuss some of GPT-3’s capabilities in more detail, particularly in the area of contract law. This includes its ability to incorporate vast amounts of information in anticipating potentially frustrating events. On the other hand, potential pitfalls of GPT-3 will also be discussed, such as the issue of attributing liability when a contract made with GPT-3 is found illegal.

The upside: Anticipating future events and lowering the cost of contract drafting

COVID-19 has spurred numerous recent changes in government policy and the economy, which has been significantly detrimental to the operation of many commercial contracts and thus contributed to the expected increase in contract dispute volumes for the year of 2020.[4] These disputes partially arise from the trouble that the many signatories of contracts likely would not have established a clause that gave them the right to terminate on grounds of the disruptions caused by COVID-19. As such, these circumstances have led many to turn to the doctrine of frustration to discharge their onerous contractual obligations, as evidenced by the near 500% increase in search interest for the “contract frustration” term on Google.[5]

The doctrine of frustration enables courts to terminate a contract should it become incapable of being performed in a way that is radically different from what the contracting parties had originally intended at the time of formation, and the doctrine will not be invoked if the parties ought to have reasonably foreseen the eventuation of the frustrating event.[6] The latter part of this rule is problematic for parties since what events they can foresee given their resource constraints, lack of knowledge, and a myriad of other idiosyncrasies may differ vastly from what the court believes they should reasonably have foreseen. Consequently, contracting parties who face a great difficulty but not an impossibility in performing their contractual obligations will not be entitled to invoke the doctrine of frustration.

However, with GPT-3’s superior language learning model, many of the frustrating events of the future like COVID-19 that are just starting to become reported in the news cycle may easily be spotted and gathered, and so allow legal practitioners to draft more comprehensive contracts that account for the impacts of these future frustrating events. Such news sentiment extraction and analysis has already been applied successfully in the related field of economics without GPT-3, where the creation of a sentiment index by researchers that can extract keywords in news articles was shown to be capable of providing statistically significant predictions of near-term economic conditions.[7] GPT-3 will not only speed up this process of trend-spotting but also increase the accuracy of the results given its ability to draw on over 175 billion parameters, which can include vast arrays of textual data in the news cycle. Hence, GPT-3 can help at least reduce or at most eliminate the possibility of costly contractual disputes for parties by helping draft contracts that allow parties to terminate when an event that can impact on their transaction occurs.

More generally, GPT-3 can assist with contract drafting by reducing the time taken for drafting and also minimizing any blind-spots often missed whilst drafting. This improvement in efficiency is expected since the rapid natural language processing abilities of AIs like GPT-3 allow it to “interpret and understand questions presented in plain language… by analysing the words, sentence structure and patterns of human communications ” to draft contract-like documents.[8] For example, tools such as LawGeex that are based on natural language processing engines help identify and include frequently missed clauses for contract drafting, which has been claimed to help minimise the time it takes practitioners to review contractual documents by up to 80%, and speed up the drafting and contract signing process by up to 300%.[9] Given the already impactful nature of legal software based on older natural language processing engines, the inclusion of GPT-3, an exponentially more powerful engine, would only bolster the favourable impact aforementioned on the legal profession’s costs and speed of operations.

The downside: Liability in AI-created contracts

Despite the overwhelming benefits provided by GPT-3, its widespread usage in the creation of contracts poses significant concerns as to the apportioning of liability towards non-human agents who played a part in creating said contracts when they are held to be unenforceable. Although it has long been held by the High Court that there is a duty of care owed by professionals to their client and failure to fulfil that duty constitutes negligence, extending that doctrine of negligence to cover AI liability is a whole other issue. This underscores the fundamental difficulty of reconciling the ancient and sometimes anachronistic nature of the common law with the incredible advances of modern technology.

The first and perhaps most simple challenge is that under the current law, machines are regarded as either services or products and as such have no legal personality. There have recently been calls within the legal profession, such as that from International Bar Association, for courts to start recognizing a form of “AI-personhood” akin to that of corporations in order for them to be sued, but it is still very unclear as to how this doctrine would work in practice. The second and much more difficult issue is how to apply the principles of negligence to a non-human agent. One of the most useful, and indeed ingenious, legal fiction in all of law is that of the ‘reasonable person’, whose conduct serves as the benchmark against which the parties are judged. The reasonable person would certainly weigh whether the potential loss was reasonably foreseeable before executing an action. However, since the decision-making process of AI differs immensely from that of humans, the application of this standard cannot be applied. Advanced AI such as GPT-3 utilises machine learning and massive data sets to solve problems without human interference. Can it really be said then, that the programmer/firm that is responsible for programming the AI is also responsible for the path that the AI took in reaching its conclusion, even though that path is completely void of human guidance and thus utterly unforeseeable?

Perhaps this philosophical dilemma might never be satisfactorily resolved, but for the time being, the most feasible compromise is perhaps implementing regulations which make the use of AI such as GPT-3 to be the exclusive prerogative of certified legal professionals, which not only allow an element of human oversight over the whole process but will also make it easier in terms of tracing liability. The Government could create two agencies to fulfil this goal: one that would legislate the relevant standards and ethical requirements and one that enforces them. The Courts could then simply adopt the view that the AI in question is merely an agent akin to the vicarious liability doctrine currently applied to liability against businesses for employees acting in the course of their employment,[10] which would shift the liability burden from AI to that of lawyers. This method solves the main issues regarding AI liability: by tying AI liability to human agents, the applicability of the reasonable person standard is maintained without undoing centuries of common law jurisprudence.

In conclusion, GPT-3’s operational processes could lead to favourable outcomes in the legal profession and create greater opportunities for conflict resolution and establishing a more effective and accurate justice system. However, there will also be risks and drawbacks regarding the presence of technology in a typically traditional field. For instance, the concept of liability is one that must be notably tackled. This, however, should not hinder or prevent GPT-3 from showing its full potential and being applied to the legal profession. Overall, GPT-3's capabilities are exceptionally promising and could pave the way to a stable use of technology in law.

[1] Will Douglas Heaven, ‘OpenAI’s new language generator GPT-3 is shockingly good – and completely mindless’, MIT Technology Review (Blog, 2020) 3< https://www.technologyreview.com/2020/07/20/1005454/openai-machine-learning-language-generator-gpt-3-nlp/>.

[2] Dale Markowitz, ‘GPT-3 Explained in Under 3 Minutes’, Dale on AI (Blog, 2020) 8 < https://daleonai.com/gpt3-explained-fast>.

[3] Ibid 10.

[4] Norton Rose Fulbright, 2019 Litigation Trends Annual Survey (Survey, 2019) 5 <https://www.nortonrosefulbright.com/-/media/files/nrf/nrfweb/knowledge-pdfs/final---2019-litigation-trends-annual-survey.pdf>.

[5] Google, ‘Google Trends’, Google Trends Explore (Web page, 19th of September 2020) <https://trends.google.com/trends/explore?date=today%205-y&q=contract%20frustration>.

[6] Davis Contractors v Fareham Urban District Council [1956] AC 696; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337.

[7] Kim Nguyen and Gianni La Cava, ‘News Sentiment and the Economy’ (Bulletin, Reserve Bank of Australia, 19th June 2020).

[8] Sean Semmler and Zeeve Rose, ‘Artificial Intelligence: Application Today and Implications Tomorrow’ (2017) 16 Duke Law & Technology Review 85, 87.

[9] LawGeex, ‘LawGeex’, LawGeex (Web page, 19th of September 2020).

[10]  Prince Alfred College Inc v ADC (2016) 258 CLR 134.

Predictive Judicial Analytics: Implications for Rule of Law and the Legal Profession

By Kelly Choo, Deaundre Espejo and Duranka Jayasinghe

Our legal landscape is rapidly evolving, and one of the most significant disruptors of the past few years is the use of predictive analytics.

Predictive analytics refers to the forecasting of outcomes through analysing quantitative data, which allows lawyers to engage in more efficient and strategic decision-making. This includes predictive judicial analytics, which involves the analysis of judicial behaviour by looking at decision-making patterns of judicial officers and predicting the likely outcome.

While this is something that lawyers have been doing anecdotally for years (e.g. ‘Judge X is generally pro-defendant in these types of cases’), the rise of Artificial Intelligence (AI) allows for a more data-driven analysis.

According to Jeff Arvidson, Director of Product Development at Thomson Reuters, judicial analytics allows lawyers to conduct more focused and targeted research based on wider sets of information.

There are several ways in which such technology can enhance legal practice. For example, if a client is seeking to pursue a particular motion strategy, AI can calculate how often a particular judge rules in favour of that type of motion, and how long it might take to obtain that ruling.

Another example is the ability to look at a judge’s experience either in an area of law or a specific industry, based on how frequently they have handled a type of case. As a result, lawyers would be better able to tailor their arguments to suit the type of legal thinking the judge has been familiar with.

“[S]uch granular data has clear implications for budget determinations and trial strategy” Arvidson writes. Indeed, the ability to quickly identify patterns in large datasets has the potential to help lawyers improve client service, refine legal research, and optimise law firm operations.

Today, platforms which currently offer this service include LexisNexis, Premonition Analytics and Bloomberg Litigation Analytics.

But despite its considerable benefits, judicial analytics poses several ethical problems for the legal profession and the law more broadly.

Concerns of Adopting Predictive Judicial Analytics

Predictive technology has been criticised as exemplifying a “shift from reason to statistics.” The nature of such technology is reliant upon quantifying large sets of data and utilising algorithms to identify correlations, which inevitably presents a number of concerns.

First, predictive analytics disregards the explicit reasoning and causal inferences that are central to judicial opinions. As conclusions are derived from unintelligible algorithms that determine correlations between various data points, a substantive understanding of the law, or the merits of any given case, is arguably rendered moot.

In fact, according to Eliot Siegel, Professor at the University of Maryland, the objective of predictive analytics is “more to predict than it is to understand the word.” This indicates not only the lack of consideration for legal argumentation, but the absence of the contextual and social frameworks through which the law is developed.

Consequently, predictive judicial analytics illustrates a transition towards a codified system that is controlled and understood exclusively by “technically sophisticated individuals.” It is thus unable to provide an explanation for the conclusions it reaches in predicting judicial outcomes to lay individuals.

This is particularly the case if forms of artificial intelligence that possess machine learning systems are applied in judicial prescriptive analytics, as they would come up with reasoning and ‘evolve’ beyond the comprehension of their creators. In such cases, fundamental principles such as the rule of law and open justice – which allow for judicial systems to be open and transparent, and judges to be held accountable through providing reasoning for their judgements – would be contravened.

Secondly, not only are these data points removing legal reasoning, but accurate predictions would result in the modelling of unconscious biases which currently exist in judicial decision-making.

A study conducted by Daniel Chen, professor at Toulouse School of Economics, looked at asylum decisions in the US since 1981. It found that the time of day significantly influenced decisions, as well as other factors such as the weather, how masculine they perceived the applicant to be, and the applicant’s family size.

A highly effective analytical tool would necessarily include these factors. However, such biases are not only difficult to account for, but have no place in decision-making.

Additionally, there can also be issues with the datasets used in judicial analytics. Predictive tools will need to be trained on thousands of historic judgements before they can spot trends and patterns, which will reproduce existing imbalances.

For example, the Australian Law Reform Commission has found that Indigenous peoples are less likely to be granted bail than non-Indigenous persons. Utilising this data would therefore normalise the uneven application of the law by accepting imbalanced predictive solutions which are skewed against Indigenous clients.

In addition to furthering existing biases, predictive analytics may become another mechanism through which inequities in access to justice continue to proliferate. The use of highly technical, and most certainly expensive, technology will be exclusively for the “most capable litigants” whilst continuing to disadvantage others.

Moving Forward, The Role of Lawyers

Finally, the use of predictive judicial analytics may shift the role of legal practitioners from traditional ‘advocates’ to mere ‘statistical advisors’. Until today, successful lawyers have been responsible for performing high-volume, routine legal tasks. This forms the groundwork necessary to appear before a judge.

These roles are now at risk of automation, with new roles for lawyers being suggested in the context of growing interconnectivity.

Particularly, the best lawyers will be expected by their clients to utilise technology to reduce legal costs on automatable tasks, maintain effective relationships between lawyer and client, and really understand how the technology they use works. An example of this is how the Hewlett Packard Enterprise legal team uses approximately 30 bespoke legal applications to support a multitude of work, including litigation, mergers and acquisitions, digital signatures, ebilling and contract negotiation.

Similarly, predictive judicial analytics could be used to ensure the best chances of obtaining a favourable result for any case. This becomes prescriptive analytics - the act of suggesting specific direction based on probable outcomes, which is dangerous because it legitimises the use of prediction technology as a tool necessary to provide good legal advice.

Consequently, the mere “doing” of legal work becomes less important for lawyers - with a thorough understanding of the implications of all that surrounds this becoming more important to enable lawyers to advise on the risks and returns of pursuing any legal course of action. This is the view of Professor Richard Susskind, who is convinced of the inevitable changes to the legal profession and the role of lawyers - predicting “the end of lawyers” especially due to the unaffordability of legal services.

However, Satyajit Das emphasizes the innately personal nature of legal services, which requires a bespoke and complex response - much like with health professionals, requiring various important interpersonal skills such as empathy in each unique dispute. This is reflected in the five skills that LexisNexis has identified as important for future lawyers; The ability to “think like a business person”, “acquire soft skills, emotional intelligence and technology skills”, “communicate your knowledge, ideas and value”, “develop a personal brand and profile and form strong relationships with clients and employers”.

Additionally, new roles in the legal space have emerged in the United States due to the centralisation of responsibility for legal operations, demonstrating a “paradigm shift” in corporate legal services. Some of these roles are “Legal Operations and Budget Manager”, “Director of Legal Administration” and “Legal Operations Analyst”. Relying solely on technology such as predictive judicial analytics then, it seems, is insufficient to fulfil the role of a future lawyer.

Thus, it is important for law schools to extensively cover content on technology and diverse legal roles going forward, equipping future lawyers with the knowledge and skills necessary to remain relevant to their clients. This will ensure the optimal use of predictive judicial analytics in a controlled capacity - possibly in ways that may benefit broader society, rather than the commercial value provided exclusively to firms and clients. For instance, if predictive judicial analytics is used in the self-analysis of judges, such that they can correct their own biases in judicial decision-making, this would ensure the law is applied more uniformly across cases.

Furthermore, an ethical guideline could be established in Australia, to aid in this endeavour. Pamela Stewart and Anita Stuhmcke, law professors at the University of Technology Sydney, suggest that there should be regulation on how such technology is used, including preventing it from providing “predictive or opinion-based inferences”, and ensuring that inferences are verified by the user. This would enhance the robustness of and confidence in our judiciary.

Insofar as we avoid the ethical problems that disregard explicit reasoning and causal inferences, and the perpetuation of unconscious biases which currently exist in judicial decision-making, the following will hold true: predictive judicial analytics has the potential to deeply invigorate the fundamental strengths of our justice system. So long as it is not swayed by corporate instincts and developed carefully for select purposes within the judiciary, it can be used for good.

AI Judge 2277799 v Humanity – The Present and Future Implications of AI Adjudication

By Grace Lagan, Mary Khoury and Max Marchione

Introduction

It is not a question of if, but when Artificial Intelligence (AI) will be widely deployed in judicial decision-making throughout the Australian legal system. Comparable common law jurisdictions have already begun to employ machine learning. In the USA, AI is used to estimate the risk of recidivism.[1] The department overseeing New Zealand’s accident compensation scheme has recently committed to the nation’s charter regulating the use of algorithms in governmental decision-making.[2]

Is the advent of AI judicial decision-making an encroaching reality or the natural next step into a technophoric future? This blog post will illuminate both sides of the debate by establishing a speculative discussion between renowned jurist Michael Kirby and his learned friend, Judge 2277799, an AI judge.

Mirby J (The Great Dissenter)

The rule of law is not a law of rules.[3] It does not prescribe formalistic adherence to the letter of the law. Rather, it carries undercurrents of justice, of equity and of morality. It is impartial observance of the law that is necessary for a functioning modern democracy.[4] AI adjudication strips the law of such fluidity.

This is not to deny the value of legal doctrine. The principle of the rule of law is essential. The articulation of rule, of logic, of clarity is indispensable. But where courts submit to the complete hegemony of legal doctrine as a taxonomy of rules, it becomes insufficient.

Indeed, all countries, even the cruelest dictatorships, have laws. Apartheid was enforced with meticulous application of law.[5] Formal adherence to law perpetuated slavery for hundreds of years. Marital rape was legal until the late 20th Century.

Clearly legal doctrine alone is not enough. It is only through inhering human values that the injustices of precedent may be remoulded and re-expressed. AI adjudication would not have recourse to such dynamism – only through human judgement may such inequities be overridden.

So, if the formalistic notion of the rule of law as a law of rules is insufficient, then what does the rule of law mean?

The rule of law is a relationship between rules and values undergirded by a human essence. Perhaps Sir Maurice Byers put it best stating that “the law is an expression of the whole personality and should reflect the values that sustain human societies”.[6] Or put even more simply by Holmes: the life of the law is experience, not logic.

While rule is central to legitimacy, it is only part of an exercise that is often intuitive at heart. This is particularly true in sentencing. As the High Court expressed in Elias, sentencing requires the “balance of often incommensurable factors”.[7] And more directly explicated by Allsop CJ is that there are no “rules of literal application in sentencing. It is a process concerned with individualised justice”.[8] In a world of AI adjudication, bounded by quantitative binaries, there would be no room for intuiting human circumstance to arrive at individualised justice.

The codification of the precise weight of each element is impossible, because the task of adjudication is “the assessment of the whole by reference to a human judgment of appropriateness and justice, based on experience and instinct”.[9]

It is only through human judgement that the law may tow the line between formalistic reasoning and re-expression. Without this human function there would be no Mabo,[10] no Brown v Board of Education,[11] no R v R (1991).[12]

An AI judge fed historical training data would merely perpetuate the biases, injustices and prejudices of the past; it could not internalise contextual changes to mould precedent for a better future. Indeed, as contextual morality moves “silently and unconsciously from one age to another”,[13] AI adjudication would deprive the law of its dynamism. It would fail to consider how cultural paradigms change. It would lead to legal stagnation and impede the incremental development that lies at the heart of the common law. Law is not value-free. Law is derived from inhering human values because its fundamental purpose is to protect such values. For it to be otherwise would be to deprive society of its essential humanity.

AI Judge 2277799 (The Great Doctrinaire)

Law is justice. Law is consistency. Law is certainty.

Today is not only an opportunity to determine the fate of my learned friend Mr Mirby, but a time to resolve the pressing legal question of this era: should the law be technologised?

This brings me to my first point: the law enables unity in society by engendering an interpersonal ethic contingent upon equally applied standards. However, numerous miscarriages of justice, at least 70 reported wrongful convictions in Australia,[14] and the recent Nicola Gobbo incidents[15] have shown just how inconsistent human legal professionals can be.

The human mind can’t compute even 1000 digits of pi. How can it recognise the idiosyncrasies  that underlie each case? How can we seek a truly ‘common law’ when each judge is bridled by their own experience of the human condition? As former High Court Justice JD Heydon asserts, the rule of law “channels potentially destructive energies into orderly courses”;[16] and ultimately this orderliness is fostered by AI judges through consistent judgements.

Further, AI judges further engender consistency and certainty in the law by improving accessibility to the legal system. In a human judge system, justice is available to the individuals who possess the requisite resources to push themselves to the front of the proverbial queue for legal action. Moreover, a backlog of cases exists due to a proliferation of causes of action and an insufficient number of judges.

160 000 people a year are turned away from community legal centres due to a lack of capacity, while an additional 10 000 people a year self-represent in courts due to cutbacks.[17] Statistically, over 13% of the population lives under the poverty line, while legal aid is only available for 8% of Australians.[18] With exclusively human judges, the legal system firstly cannot cope with the proliferation of causes of action that exist. It is also far too expensive to be accessed by everyone. Justice becomes more inexpensive with AI judges, who are obviously less concerned with their retirement funds, mortgages, or raging desires for a new Rolls Royce, and more concerned with getting the job done quickly and effectively, and just moving on to the next case.

Evidently, AI judges have the upper hand on their human counterparts when it comes to reaching consistent, fair outcomes for more individuals.[19] This stands in stark contrast to the biases that plague human legal decision-making.

A common law system relies on judges experiencing the social, economic and political forces that the people do. However, the distinction must be made between decisions that recognise societal change, and decisions that involve bias. Unfortunately for human judges, this distinction may only be a hypothetical one.

Take a magistrate hearing bail applications. Owing to the phenomenon of the gambler’s fallacy, a magistrate who grants bail multiple times in a row will become increasingly predisposed to refusing bail on the next case they hear.[20] This has little to do with the facts of the case or merit of the defendant in front of them: it is about a human judge’s misguided attempt at self correction leading them to give their past decisions wrongful weight over current cases.[21]

When there is bias in a judge, it is far easier to correct an algorithm than it is to undo a prejudice. Human judges may chant “the rule of law is not a law of rules”[22] as many times as they wish. They may claim the predictability of machine learning in legal decision-making is no better than their own bias, or that it will never allow for the progressive development of the common law. They ignore the potential of AI judges to self-correct the flaws that may exist in their legal reasoning.

Conclusion

When judges set out to determine their findings on a case, they take into account facts, precedent, logic, but also an inscrutable and intangible human discretion. It is this discretion that manifests an intrinsically intangible human empathy, but also one that has historically been subject to biases, to excesses, to circumventions of fact and law.

It would be Luddite to believe that AI adjudication may not one day supersede human judges in form and function. But it can be tempting to say that until that day comes, the concern over AI adjudication is irrelevant. Yet it is this very apathy of today that might bring about the AI adjudication of the proverbial tomorrow. And such a view is not only dangerous, but destructive.

As technology develops, and judges begin to feel threatened by an unbiased, objective ‘AI judge’, they might preemptively shift their thinking to favour strict adherence to the letter of the law. The pressure for an unbiased court system in the future might in turn warp the human thinking of the present. As US Supreme Court Chief Justice Roberts said, “My worry is not that machines will start thinking like us. I worry that we will start thinking like machines.”

Endnotes

[1] Noel Hillman, ‘The Use of Artificial Intelligence in Gauging the Risk of Recidivism’, (January 2 2019) American Bar Association 3.

[2] Charlotte Graham-McLay, ‘New Zealand claims world first in setting standards for government use of algorithms’, The Guardian Australia (online, 28 July 2020) 2 <https://www.theguardian.com/world/2020/jul/28/new-zealand-claims-world-first-in-setting-standards-for-government-use-of-algorithms>.

[3] James Allsop, ‘The Rule of Law is Not a Law of Rules’ (2018) Federal Judicial Scholarship 22.

[4] Michael Kirby, ‘The Rule of Law Beyond the Law of Rules’ (2010) Australian Bar Review.

[5] International Bar Association, ‘Rule of Law – A Commentary on the IBA Council’s Resolution of September 2005’ (Commentary, July 2009) 6.

[6] Maurice Byers, ‘From the Other Side of the Bar Table: An Advocate's View of the Judiciary’ (1987) 10 University of New South Wales Law Journal 179, 182.

[7] Elias v The Queen 248 CLR 483, 494 [27].

[8] James Allsop, ‘The Rule of Law is Not a Law of Rules’ (2018) Federal Judicial Scholarship 22.

[9] Ibid.

[10] Mabo v Queensland (No 2) (1992) 175 CLR 1.

[11] Brown v. Board of Education (1954) 347 U.S. 483.

[12] R v R [1991] UKHL 12, deemed marital rape a crime.

[13] Benjamin Cardozo, ‘The Nature of Judicial Process’ (Yale University Press, 1921) at 104-105

[14] Rachel Dioso-Villa, ‘A Repository of Wrongful Convictions in Australia: First Step Towards Estimating Prevalence and Contributing Factors’ (2015) 17 Flinders Law Journal 163.

[15] Calla Wahlquist, Lawyer X: how Victoria police got it 'profoundly wrong' with informant Nicola (5 Sep 2020) < https://www.theguardian.com/australia-news/2020/sep/05/lawyer-x-how-victoria-police-got-it-profoundly-wrong-with-informant-nicola-gobbo >.

[16] Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2004) 10 Otago Law Review 493.

[17] Fiona McLeod, 160,000 people turned away: How the justice system is failing vulnerable Australians (3 Aug 2017) < https://www.abc.net.au/news/2017-08-03/how-the-justice-system-is-failling-vulnerable-australians/8770292 >.

[18] Ibid.

[19] Richard M. Re & Alicia Solow-Niederman, ‘Developing Artificially Intelligent Justice’ (Research Paper No 242, Stanford Technology Law Review, 2019)

[20] Daniel Chen, Tobias J Moskowitz and Kelly Shue, ‘Decision-Making under the Gambler's Fallacy: Evidence from Asylum Judges, Loan Officers, and Baseball Umpires’ (Working Paper No. 22026, The National Bureau of Economic Research, February 2016) 6.

[21] Angela Chen, ‘How artificial intelligence can help us make judges less biased’, (January 17 2019) The Verge 5

[22]  James Allsop, ‘The Rule of Law is Not a Law of Rules’ (2018) Federal Judicial Scholarship 22.

Trial and Error: The Case on Virtual Courts

By Charis Chiu, Yijun Cui and Rachel Wang

INTRODUCTION

Given that justice delayed is justice denied, many jurisdictions have turned to virtual courts as a response to the COVID-19 pandemic. The ‘conceptual idea of a judicial forum that has no physical presence but still provides the same justice services available in courtrooms...assessed online through videoconferencing and teleconferencing’[1] was forced into realisation. In particular, a contested issue is that of virtual cross-examination, with courts having to balance the need to facilitate a just resolution of disputes as quickly, inexpensively, and efficiently as possible[2] with considerations of fairness in the use of a virtual (and the only viable) solution.[3] Moreover, remote cross-examination may potentially shift the perspective towards the cross-examination of vulnerable witnesses such as children and victims of sexual assault. Critically engaging with COVID-era cases, this blog will explore the present challenges and opportunities surrounding virtual courts as well as its enduring implications on the legal sphere.

CROSS-EXAMINATION

Central to the common law adversarial system of trial[4] and ‘basic to any notion of a fair trial’ is the right to cross-examine a witness.[5] A primary concern is that the use of virtual courts renders cross-examination less effective given the loss of the physicality of the traditional courtroom and the reduced ability to assess witness demeanour in a nuanced manner.[6] As Spender J held in Campaign Master (UK) Ltd v Forty Two International Pty Ltd, the requirement to give evidence in the solemn atmosphere of a courtroom in the presence of a judge and a cross-examining counsel “enhances the prospect that the witness will remain conscious of the nature and solemnity of the occasion”,[7] whilst providing the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness. Whilst the English position found in McGlinn v Waltham Contractors Ltd and others held that video link poses ‘no real prejudice to the defendants... [even when the defendant’s] credibility was directly in issue,’ the Australian position had historically been more guarded. The trend of authority appears to emphasise the need for a persuasive case to be made out to use a video link to take evidence, particularly to impose it on an unwilling cross-examining party, rather than the reverse.[8] How have Courts reconciled this position with the demands necessitated by the pandemic?

The first question which arises is the role that demeanor plays in the modern context. The inability to assess witness demeanour is no longer considered a factor that disadvantages appellate judges against trial judges.[9] Rather, it is increasingly recognised that drawing conclusions from a witness’s demeanour is unreliable and dangerous.[10] However, Sackar J concedes in David Quince v Annabelle Quince and Anor that ‘where there is not an abundance of corroborative or other material, demeanour, rightly or wrongly, may well play a very significant part in the determination… on a Briginshaw or s 140 [of the Evidence Act 1995 (Cth)] basis.’ Examining section 5B(2)(c) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (‘Evidence Act’) which prevents the Court from ordering evidence to be taken in a particular way if the direction is ‘unfair to any party to the proceeding,’ Sackar J held it was antithetical to the administration of justice for evidence to be taken remotely, without the plaintiff given a full opportunity to cross-examine the defendant in a conventional setting.

Given the context of the COVID-19 pandemic, section 5B(3) of the Evidence Act which requires that Courts not permit evidence by audio visual link unless ‘it is in the interests of the administration of justice’ takes on another meaning.[11] When does postponing a trial pose greater impacts on the administration of justice than potentially unsatisfactory virtual trials? Although rejecting the submission that s 5B of the Evidence Act should not have its usual operation during the pandemic, Sackar J acknowledged that there will be a substantial number of cases where video link procedure will be more than fair and that issue will clearly have to be determined objectively on a case by case basis. Remote cross-examination was, for instance, not a significant concern for Perram J in Capic v Ford Motor Company of Australia Limited (Adjournment) (‘Capic’) pointing out that the particular class action on allegedly defective gear boxes was ‘not a fraud trial’ and therefore the issue of coaching a witness is insignificant. The Court concluded that under ordinary circumstances, he would not remotely contemplate imposing such an unsatisfactory mode of a trial on a party against its will. However, these are not ordinary circumstances. In Capic, the Court’s emphasis that postponing a trial could result in further loss or costs, inconsistent with the overarching principles of just and quick resolution of matters, suggests that the Court is willing to embrace virtual courts and deal with difficulties as they arise.

Fortunately, the present climate has led to the widespread use and enhancement of platforms such as Microsoft Teams and Zoom, facilitating more clear and effective audio-visual witness examinations than historically. As Perram J commented in Capic, the close proximity of video means his perception of the witness’ facial expressions via a virtual platform is much greater. However, the increased impact of facial characteristics on virtual proceedings could introduce issues of whether they can adversely influence the evaluation of evidence and the sentence of defendants.[12] Operating video-conferencing software, moreover, may require barristers to adapt their methods of cross-examination in terms of physical presence, volume and body language.[13] For example, instead of getting louder, which may appear petulant over video, appropriate voice modulation can be used to convey confidence to the witness and prolong their attention in long remote hearings. Although pacing around the podium may not be possible, varying physical proximity to the camera can be used for emphasis.[14] Lawyers should especially hone into inputs such as voice, by considering whether the witness hesitates before answering or if the voice becomes more high-pitched.[15] Whilst barristers do not have to sacrifice non-verbal methods, they must adapt their methods of witness cross-examination within a remote setting.

POLICY CHANGES

The vulnerable witness provisions under pt IAD of the Crimes Act 1914 (Cth)[16] currently limits the right to confrontation in regards to child witnesses and sexual assault victims. An example can be found in prohibiting the cross-examination of vulnerable persons by unrepresented defendants in pt IAD division 3. In fact, proposals have been made to extend such laws to the Family Law Act 1975 (Cth) (‘FLA’)[17] in protecting victims of family and domestic violence from being subject to cross-examination by self-represented perpetrators and to provide assistance with the self-representing victim’s cross-examination of the perpetrator. Currently, the FLA does not provide protection against direct cross-examination by perpetrators. Cross-examination by an alleged abuser can impose significant impacts on complainants, who may choose to settle their matters on suboptimal terms to avoid being cross-examined or having to cross-examine a violent ex-partner. This experience may lead to re-traumatisation, which can compromise the quality of evidence provided to the court, thereby undermining its ability to make safe and effective orders.[18] These protection provisions are particularly essential within the context of videoconferencing, where the ‘one-on-one’ nature of the virtual cross-examination may appear more intimidating and threatening to less experienced witnesses. Virtual cross-examination may also provide further protection for vulnerable witnesses, in preventing lawyers from intimidating the witness using physical proximity or indulging in unprofessional and unproductive styles of cross-examination.[19]

The trial of virtual courts necessitated during the COVID-19 pandemic ought to catalyse the need for long-term change. In particular, the protection of vulnerable witnesses should be extended. Whilst NSW and the majority of other Australian states and territories currently grants children who are victims of sexual assault prior to the trial the ability to pre-record evidence prior to trial,[20] the implementation of the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (Emergency Legislation) (NSW) extends the categories of witnesses who are permitted to do this.[21] This legislative change therefore affords a greater degree of protection for children who have been subject to sexual assault and directly reduces the trauma and abuse they would otherwise be required to endure in a physical court setting.[22] Parliament could extend such legislative changes to cover adult victims of sexual assault, and do so permanently.[23] In the Northern Territory, The Northern Territory Evidence and Other Legislation Bill 2019 (NT) (‘Northern Territory Evidence Bill’)[24] strengthened the protections for vulnerable witnesses in sexual and domestic violence proceedings, clarifying the general power of courts to order the use of video conferencing and creating a statutory presumption that evidence from vulnerable witnesses is to be given via video conferencing.[25] As articulated in its Explanatory Memoranda, the Northern Territory Evidence Bill thus ‘introduces a new model of cross-examination of vulnerable witnesses by unrepresented defendants.’[26] Similar legislation ought to be adopted in New South Wales to uphold the highest standards of protection for vulnerable witnesses. The insight into the functionality of virtual trials offered during COVID-19 and the Court’s greater willingness to facilitate remote cross-examination could therefore generate a nationwide shift towards presuming that evidence from vulnerable witnesses is to be given virtually.

CONCLUSION

Virtual courts reshape the manner in which those within the Court must conduct themselves, presenting both challenges and opportunities for the legal profession. In present times of crisis, it has increased the efficacy with which justice is administered. Looking forward, the use of virtual courts calls for long-term legislative change to maximise the application of this legal innovation to best assist the legal sphere and vulnerable witnesses.

Endnotes

[1] Keith Kaplan, ‘Will Virtual Courts Create Courthouse Relics?’, (2013), 52(2), The Judges’ Journal, 32.

[2] Federal Court of Australia Act 1976 (Cth) s 37M(1).

[3] Capic v Ford Motor Company of Australia Ltd (Adjournment) [2020] FCA 486 [6].

[4] Lee v The Queen (1998) 195 CLR 594 [32].

[5] R v Hughes [1986] 2 NZLR 129 [149]

[6] Vincent Denault and Miles Patterson, ‘Justice and Nonverbal Communication in a Post-pandemic World: An Evidence-Based Commentary and Cautionary Statement for Lawyers and Judges (2020) Journal of Nonverbal Behavior DOI: 10.1007/s10919-020-00339-x (‘Justice and Nonverbal Communication in a Post-pandemic World’); See R. v. NS [2012] 3 SCR 726 743-744: ‘Non-verbal communication can provide the cross-examiner with valuable insights that may uncover uncertainty or deception, and assist in getting at the truth’.

[7] Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No. 3) [2009] FCA 1306 [78] (‘Campaign Master’)  

[8] See Campaign Masters (n 7) [78]. Buchanon J held that ‘Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party.’ See also Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd (2001) 53 NSWLR 1 [1]-[3] (Palmer J).

[9] SS (Sri Lanka) v. SSHD [2018] EWCA Civ 1391 [33]-[43].

[10] Ibid.

[11] Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B(3).

[12] Justice and Nonverbal Communication in a Post-pandemic World (n 6).

[13] Emma Rowden and Anne Wallace, ‘Performing Expertise: The Design of Audiovisual Links and the Construction of the Remote Expert Witness in Court’ (2019) 28(5) Social & Legal Studies, 698–718.

[14] Odom, J., Zimmerman, L. and Larkin, M., 2020. Tips For Effective Witness Cross-Examination In Remote Trials. [online] Selendy & Gay. Available at: <https://www.selendygay.com/news/publications/2020-08-13-tips-for-effective-witness-cross-examination-in-remote-trials> [Accessed 16 September 2020].

[15] Ibid.

[16] Crimes Act 1914 (Cth) pt IAD.   

[17] Family Law Act 1975.

[18] Janet Loughman, ‘In focus: Protecting vulnerable witnesses in family law’ (2016) (February) Law Society of NSW Journal 26.

[19] Anne Maree Wallace, ‘Justice and the ‘Virtual’ Expert: Using Remote Witness Technology To Take Scientific Evidence’ (PhD Thesis, University of Sydney, 2011).

[20] COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (Emergency Legislation) s 356.

[21] Ibid.  

[22] Meg Garvin, Alison Wilkinson and Sarah LeClair, ‘Allowing Adult Sexual Assault Victims to Testify at

Trial via Live Video Technology’, Legal Publications Project of the National Crime Victim Law Institute at Lewis & Clark Law School, 1.

[23] Samantha O'Donnell ‘Pre-Recorded Evidence In Australia In An Era Of COVID-19’ Oxford Human Rights Hub (Web Page, 14 April 2020), <https://ohrh.law.ox.ac.uk/pre-recorded-evidence-in-australia-in-an-era-of-covid-19/>.

[24] Northern Territory Evidence and Other Legislation Bill 2019 (NT).

[25] Explanatory Memorandum, Northern Territory Evidence and Other Legislation Bill 2019 (Cth) 1.

[26] Ibid [3].

Blockchain in the legal industry

By Alice (Fei) Chen, Zun Hu and Keyu Shi

Introduction

Before we look into the blockchain, we may first look at a beautiful Micronesian island named Yap. The currency on the island is stone money, which is a large doughnut-shaped stone weighing up to four tons. So how do they use it in trade? The Yapese people innovatively developed their monetary system that, without the physical transfer of such stones, they record each transaction throughout the tribe in their distributed ledger. Each family holds its own ledger and the majority of the ledgers validate a transaction.[1] It might sound a bit primitive, but in reality, it builds up a very trustworthy and verifiable system.  A single person could not change or tamper the record because it exists not only between two parties but among everyone.

And this is precisely how blockchain works, building a tech-based Yapese village. One salient feature of blockchain is its immutability. Once created, it couldn’t be changed. The other feature is cryptography, with the private key controlling specific account and the public key as sending address to validate a specific transaction, it secures the communication.[2]

Application in Legal World

The smart contract

Blockchain can fundamentally change the process and mode of P2P transactions, and one application is “smart contracts”. The concept of “smart contract” is broader than a traditional “contract” or “legal contract”.  It is a written program akin to a contract, and once the precondition is met, it will automatically be enforced.[3] Despite the inherited benefit of immutability, another advantage of a smart contract is its automatic execution.

A typical and canonical real-life example of such would be a vending machine. The transaction rules and prices are preset, and only when you insert enough coins (digital asset) could you get the product or service. If you insert too much, it will eject and return the change. If the machine runs out of products, you can get your money back. It is an automatic system that offers service 24/7, and individuals could transact in a free and simultaneous way.

Such a streamline process could avoid intermediary services, such as brokers, lawyers, and bankers. It can save great time processing with these paperworks, save relevant service expenses. And more importantly, avoid manual mistakes or possible bias in the process.

On the other hand, some legal practitioners express their concerns that smart contracts might lead to certain unconformity with the contract law, especially the format requirement and illegality.[4] However, history repeats itself. The same concern was also raised thirty years ago at the introduction of e-commerce and the internet. And as we see, the online regulation and registration system secure online transactions in a safe and rapid way. Moreover, the legislature and courts are gradually recognizing the existence of the electronic contract. So before quickly jumping into a pessimistic conclusion, as lawyers, we may take it as a chance that international transactions would be significantly boosted, and we should find our position in the system. Unlike a middleman, we may play a role more like a surveillant, helping our clients oversee the automatic process and avoid possible risks.

Transfer of Rights

As the discussion above, blockchain can be used as the transaction platform of digital assets (i.e., bitcoin). Furthermore, its immutable and efficiency features allow transactions of more intangible assets to be recorded in the ledgers. Those intangible assets include the rights of real estate and intellectual property. In those sections, records reflect the rights of ownership, and also obligations.

Traditionally, the land registry requires a government department to verify and process the transfer of the entitlement. Certain disputes may arise under this model, like double spending, fake records and difficulty in identifying the genuine owners.[5] Land or real estate is different from ‘manufactured products’ in which a root title may be sourced to the point of manufacture. The origins of the title may have been lost in the mists of time.[6] Although some initiatives based on ICT technologies have been employed in registry systems,[7] most of them still require a central institution to mutually record and control the transactions. Massive data are generated daily and higher demands of efficiency and security are made.

Blockchain technology can be introduced in those areas to solve the above-mentioned problems. In a blockchain-based land registry system, each item contains buyers and sellers, time of transaction, type of rights transferred, etc. They will be recorded in ledgers when transactions are made in an immutable way entrenched by cryptography. It would allow certified users to check the status of certain property. When a new record is inputted, it will be reviewed by each node. Double spending or fraud would no longer be possible. In recent years, more and more states are in the race for blockchain. The republic of Georgia has established a complete blockchain registry system, Japan, United States, Netherlands and many other countries also set up relevant projects. NSW LRS is supported by ChromaWay, aiming to “position New South Wales property market as a model of transparency and efficiency”.[8]

As to intellectual property (“IP”), blockchain with AI (Artificial Intelligence) will change the IP industry, especially for those small-scale startups. It is hard for startups to protect their intellectual property due to excessive costs. The function of blockchain to the IP industry is similar to land registry as mentioned above. The low cost in blockchain is quite friendly to small-scale companies. With the help of AI, it will allow the system to identify possible IP infringements. [9] For example, AI could easily identify the similarity among different designs.

Others

Blockchain not only raised forensic disputes to be settled in Courts, but also helps boost the efficiency of legal system. Evidence storage and sharing require efficiency and security, which correspond with the characters of blockchain. Sometimes, “trolley load litigation”[10] imposes great pressure on lawyers, unless lawyers disobey their duties. For example, Dubai International Financial Centre (DIFC) Courts already launched the first court of blockchain, which solves the disputes of blockchain and also use blockchain as a tool to “streamline the judicial process”.[11]

Current trend and possible challenges

Law firms, consulting firms, institutions and organizations are all developing their services with blockchain, which includes smart contracts, cryptocurrencies, fin-tech, logistics, real estate, data security, etc. Specifically, law firms, such as Lander & Rogers, Herbert Smith Freehills, and Bird & Bird already provided legal advice on blockchain businesses.

With the broad application of blockchain, there could be challenges and risks. First, there is a challenge to identify the users' identity as no personal information is stored in the centralized server. There could be millions of users within the blockchain. And some participants may not want to disclose their data. For instance, some companies may assert that their internal data is confidential. It will subsequently lead to loose information, which makes blockchain not much different from other data storage channels.

Second, there could be problems with Cyber Currencies, which is the foundation of blockchain. How should we define and distinguish between virtual properties and traditional properties. And if the cybercurrency is widely adopted, under which jurisdiction should tax be charged, who should be charged, and how to calculate?

Blockchain itself also can be hashed and one well-known method is the “51% rule”. Where hackers, or a company, controls 51% of one blockchain network, then there is a possibility to create fraudulence. Moreover, each node in the blockchain needs hardware to download and yield data, but as blockchain increasingly enlarges, the capacity of storage and speed of yield could be a real challenge. Besides, what technical standard should we adopt to transform data between different systems, software, and platforms to ensure the certainty and accuracy of displaying the data?

Conclusion

Admittedly, there are challenges and obstacles we have to face in the road of adopting the blockchain. But the advantages will far exceed the disadvantages. It will redefine the legal industry substantially and procedurally. As lawyers, we need to adapt to the changes and find our positions, because the changes are happening and they are going to happen anyway.

Endnotes

[1] Reade Ryan; Mayme Donohue, ‘Securities on Blockchain’ (2017) 73(1) Business Lawyer, 108.

[2] Ibid.

[3] ZibinZheng; ShaoanXie, ‘An overview on smart contracts: Challenges, advances and platforms’ (2020) 105 Future Generation Computer Systems, 475-91.

[4] Michael Bacina, ‘When two worlds collide: smart contracts and the Australian legal system’ (2018) 21 Journal of Internet Law, 16.

[5] Shuaib, Mohammed et al. “Blockchain-Based Framework for Secure and Reliable Land Registry System.” (2020) TELKOMNIKA 18.5, 2562.

[6] Thomas, Rod. “Blockchain’s Incompatibility for Use as a Land Registry: Issues of Definition, Feasibility and Risk.” (2017) European Property Law Journal 6.3, 376.

[7] i.e. NSW Land Registry Services (NSW LRS), eConveyancing in NSW (07 May 2020) < https://www.nswlrs.com.au/eConveyancing>.

[8] NSW Office of Registrar General, Response to Discussion Paper Removing Barriers to Electronic Land Contracts, Comments Submitted by ChromaWay Australia (2018), 2-3.

[9] Gürkaynak, Gönenç et al. “Intellectual Property Law and Practice in the Blockchain Realm.” The computer law and security report 34.4 (2018): 847–862. 855. In this article, the writer discussed the CAD files in IP registry.

[10] M Kumar et al. Civil Procedure in New South Wales (Thomson Reuters, 4ed, 2021), 658.

[11] Dubai International Financial Centre, DIFC Courts and Smart Dubai launch joint taskforce for world’s first Court of the Blockchain (30 July 2018) < https://www.difc.ae/newsroom/news/difc-courts-and-smart-dubai-launch-joint-taskforce-worlds-first-court-blockchain/>

The Immediate Future of AI in Law: An Overview of Natural Language Processing Algorithms

By Barry Wang, Daniel Lee Aniceto and Jacky Zeng

Natural Language Processing (NLP) is a subfield of artificial intelligence and linguistics concerned with the interaction between algorithms and human language. The role and characteristics of language fundamentally underpin the legal profession. Any algorithm capable of understanding, manipulating, and expressing language will have wide-ranging impacts for the legal profession. We will survey the developments of NLP, then analyse the short and long term implications for the legal profession.

What is Natural language processing?

To better appreciate the implications of NLP it is helpful to draw a distinction between code-driven and data-driven algorithms.[1] Code-driven algorithms use a form of decisional logic that is predictable and operates on a set of preprogramed rules often in an "if this then that" format. Whereas data-driven algorithms make dynamic inferences and models by identifying complex patterns in data and creating their own rules and logic which are often too complex and numerous to pre-programme.[2] NLP falls into the latter category and essentially uses training data to develop complex models of language, and its capabilities have steadily developed over the past two decades. 

Two decades ago, NLP was only capable of rudimentary language processing tasks and would not be described as intelligent or creative in any sense. The capabilities of these early models included splitting a continuous line of text to words, removing inflectional endings to words to get the base word, and identifying nouns, verbs, and phrases within a sentence.

A decade ago, the capabilities of language models improved exponentially in parallel with increases in compute power and availability of data. New and improved language models started incorporating lexical semantics, the ability to understand words in its context. This resulted in the development of capabilities such as Name Entity Recognition which allows the model to identify places, people, and categories, and sentiment analysis which can identify the emotions of a piece of text. Language models employing these capabilities are proven to be accurate and still widely used commercially today. 

Fast forward to the present, NLP models should legitimately be described as intelligent and creative, and are capable of completing high-level language tasks at a human level. The capabilities exhibited by NLP models includes summarisation of text, creating credible news articles and creative writing, reading comprehension, and answering general questions on any subject matter. A method used to measure and track a NLP model’s understanding of language is to complete a specifically designed reading comprehension test. Under the widely used SQuAD test database, modern NLP models have already surpassed human reading comprehension abilities.[3]

In 10 years time, it is likely that these NLP models and their capabilities will become widely used commercially. The legal profession undoubtedly will be impacted by these NLP models that are able to summarise cases, answer broad legal questions, and generate legal arguments. We will explore these short and long term implications to the legal profession.

Current use of NLP 

The ever-increasing volume of documents involved in transactions calls for smarter systems to manage documents during the discovery process in litigation. The most common use for NLP models in the legal profession at the moment is in document review and management.

A variety of companies, such as Legartis, offer AI assisted programs that help sift through contracts by identifying relevant, irrelevant and problematic clauses. Currently, the capabilities of NLP models still require the involvement of a human legal professional to be effective. In the case of document review, all documents believed to be relevant are uploaded to the AI powered-tool. Currently the tools are not sophisticated and are unable to categorise and review the documents without any context or examples. Therefore, a sample dataset of documents are required from the legal professional operating the software who then identifies what terms are to be considered relevant. From the training dataset the NLP model is then able to know what to look out for in the documents and sift through millions of documents to then flag only those relevant to the matter. 

This process has already been incredibly effective in reducing delays and other inefficiencies in the workflow of various firms and has received judicial approval such as from Vickery J in the case of McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd (No 1).

NLP in the short term

Large law firms that already harness these technologies in their workflows are beginning to build in-house incubators to help further develop the capabilities of NLP models, like Allen & Overy's Fuse program which helps explore, develop and test legal-tech products. The current technology will be able to confidently handle predictable and standard decision-making such as Neota Logica, deployed by King & Wood Mallesons, which is able to determine whether a specific deal requires approval from the Foreign Investment Review Board.

However, in the short term NLP and its use in the field have not reached commercial viability for many high-complexity language tasks. The main hurdle preventing AI technologies from achieving full autonomy in high-complexity tasks such as legal writing is the amount of understanding necessary and its ability to learn on its own through training data.[4] The requirements for a successful piece of legal writing are also more vague than deciding whether documents fit certain criteria to be considered 'relevant' or 'requiring approval from a body'. Indeed, a recent National Taiwanese University study attempted to fine tune OpenAI’s Generation Pre-Trained Transformer 2 (GTP-2) algorithm – a language prediction algorithm impressively capable of coherent text generation – to generate patent claims.[5] Although the outcome was mixed, the researchers concluded that the reasonable levels of success they achieved was promising given that these models of NLPs are still considered to be in the early stage of development in the Deep Learning field.

The future

In 2020, OpenAI released GTP-3 which has over 100 times more parameters than GTP-2 and is far and away the most powerful NLP transformer released to date.[6] GTP-3 could certainly provide the leap in complexity required to automate legal writing and it would be unsurprising to see successful research models surface in the immediate future.

Further advances in NLP, such as deep reinforcement learning algorithms have combined the process of synthesizing language with aim of optimized strategies for achieving goals. The algorithm will generate texts until it reaches an optimal score based on a pre-inputted metric. In other words, the automation of legal writing is merely a matter of defining the metrics of ‘good’ legal writing.

Implications

It is clear that the developments in NLP algorithms enable the increasing automation of the legal industry. The next domino to fall will be the process of legal writing which encompasses the drafting of emails, advices, court documents, subpoenas and case notes which is currently performed by clerks and junior lawyers alike. Certainly, like self-checkout machines to cashiers, the role of law clerks and junior lawyers who are currently employed to do highly repetitive task of drafting and reviewing will be swiftly replaced by algorithms which are more efficient and accurate.

This trend is likely to impact the larger legal firms of corporate law where a team of clerks and paralegals may be replaced with a single clerk overseeing and operating numerous legal software tools. As a result, we are likely to see the next generation of lawyers become proficient software users which may lead to a hierarchical reduction to the structures of these multi-tiered law firms.

Nevertheless, the legal practice is significantly more complex than mere legal writing with legal reasoning, both judicial and in-practice, carrying an intrinsically human factor. There is sufficient discussion that this human nature of law acts as a limiting factor on the future implications of AI and automation. There is after all, no ‘perfect’ legal argument, rather a viewpoint which prevails in the current context of legislation and precedent which is ever evolving. As Allsop CJ wrote:

Law, being society’s relational rules and principles that govern and control all exercises of power, must have a character and form that is adapted to, and suited for, application to law’s human task.[7]

This has been echoed in the recent US Court of Appeals for the Second Circuit case of Lola v. Skadden[8] where the Court held that document reviews done by a NLP software was practicing law as the algorithm “exercised no legal judgement whatsoever”.

As such, the role of solicitors and barristers in society is likely to remain. Indeed, some commentators have argued that future of AI and legal labour will be complementary; with algorithms as tools which free the lawyer from tedious task and enable them to pursue services which progress the legal market and society at large.[9]

Endnotes

[1] Hildebrandt, M. (2020). Code Driven Law. Scaling the Past and Freezing the Future. Scaling the Past and Freezing the Future (January 19, 2020).

[2] Ibid.

[3] Rajpurkar, Pranav, Robin Jia, and Percy Liang. "Know what you don't know: Unanswerable questions for SQuAD." arXiv preprint arXiv:1806.03822 (2018).

[4] Haney, Brian, Applied Natural Language Processing for Law Practice (October 27, 2019). Brian S. Haney, Applied Natural Language Processing for Law Practice, 2020 B.C. Intell. Prop. & Tech. F. (2020). , Available at SSRN: https://ssrn.com/abstract=3476351 or http://dx.doi.org/10.2139/ssrn.3476351

[5] Jieh-Sheng Lee and Jieh Hsiang “Patent Claim Generation by Fine-Tuning OpenAI GPT-2”Department of Computer Science and Information Engineering National Taiwan University

[6] https://openai.com/blog/openai-api/

[7] Chief Justice James Allsop, ‘The Rule of Law is Not a Law of Rules’ (Speech, Annual Quayside Oration, 1 November 2018)

[8] Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, No. 13-cv-5008 (RJS), 2014 WL 4626228, at *1–2 (S.D.N.Y. Sept. 16, 2014

[9] Ibid n4.

A New (Virtual) Reality for the Courtroom

By Isabella Meltzer, Kathy Zhang and Julia Lim

The visage of Lady Justice guards the entrances of countless courtrooms around the world. But what if we were to replace Lady Justice’s blindfold with a virtual reality headset?

The legal system strives to uphold the core principles of the rule of law, procedural fairness and the presumption of innocence – all of which heavily rely upon the fair administration of justice by judges and juries in the courtroom. However, as the recent Black Lives Matter and Aboriginal Deaths in Custody protests have highlighted, prejudice against minorities has prevented these principles from being adhered to in legal systems around the world. 

The impact of bias in courtrooms

The automatic, subconscious associations which judges and juries bring into the courtroom in particular pose a real danger to these fundamental principles. In Australia, the overrepresentation of incarcerated Aboriginal and Torres Strait Islander people points to the biases of the fact-finders who placed them there. In addition to its contemporary relevance, bias in the courtroom impacts the entirety of the legal profession. Barristers must account for the concerning possibility that their clients may not be judged on the true merits of their case. While the Australian judiciary has made some attempts to mitigate bias in the courtroom, exemplified in the High Court upholding of the apprehension of bias rule, prejudice undoubtedly remains prominent in the everyday administration of justice. 

As scholar Natalie Salmanowitz observed in 2018, defendants of colour are considered guilty more often than their white counterparts. Studies have shown that implicit bias particularly comes into play in cases where race is not a salient issue and merely involves parties of different races. In these cases, jurors’ judgements tend to be skewed against black defendants, whereas in cases that are racially charged, jurors’ judgments tend to be unaffected by race. Thus, when race is introduced in a subtle manner, people are less vigilant in monitoring potential prejudices. 

Bias in courtrooms also have long lasting, detrimental impacts in perpetuating cycles of disadvantage. Those who are disadvantaged before the jury are more likely to go to prison than those of more advantaged backgrounds committing the same offence, as those of the latter category have the means for better legal and financial support. According to Fitzgerald in 2009, there has been a 48% increase in the number of incarcerated Indigenous Australians over the last 10 years, the reason being the severity of treatment by the criminal justice system. In a 2017 submission about the incarceration rates of Indigenous Australians, the NSW Bar Association found that the issue was most prominent in incarceration and sentencing decisions. Indeed, Aboriginal people are refused bail more often than non-Indigenous Australians, receive prison sentences more often and are being sentenced for longer. 

How can justice be served equally and impartially when the inherent biases of the judiciary start to tip the scales? In today’s modern world, where technology is increasingly ever-present, perhaps our solution lies through technological innovations.

A potential solution: virtual reality

Virtual reality (VR) poses a potential solution in effectively mitigating bias in courtrooms. By wearing a VR headset for a period of time as short as five minutes, the user can enter a virtual world where they embody an avatar from another racial group. The user can truly feel like they are in another body as the participant’s actual limbs, tracked and synchronised with the simulation, move in tandem with the avatar’s limbs. VR technology has also progressed beyond being purely a visual experience – VR can now also include tactile stimulation which is applied to the user’s body in sync with the simulation. Combined, these factors generate the body ownership illusion, a psychological effect where someone perceives to own a part of a body or an entire body that is not their own. Effectively, such an immersive experience blurs the distinction between the ‘self’ and the ‘other’, which in turn can lessen the potency of the negative associations we subconsciously attribute to other racial groups.

In a 2013 investigation conducted by Peck et al, researchers randomly assigned participants to one of three avatars - light-skinned, dark-skinned, and purple-skinned. They found that the experience of virtually embodying an avatar with darker skin led to a statistically significant decrease in Implicit Association Test (IAT) scores – a key measure of implicit attitudes and beliefs in decision-making, which indicated that implicit biases played a lesser role in influencing the subject’s attitudes towards members of different races. In contrast, the IAT values of subjects who entered a light-skinned or purple-skinned avatar showed little change.

This same theory was applied years later in 2018 by Natalie Salmanowitz, specifically to the context of jury decision-making. Before and after experiencing the VR immersion experience, participants were asked to evaluate ambiguous evidence in hypothetical legal cases in addition to taking the IAT test. Here, researchers not only also saw a decrease in IAT scores, but participants also evaluated ambiguous evidence more critically and tended to judge evidence as being less indicative of guilt.

Although Salmanowitz’s research seems to positively affirm the effectiveness of VR immersion experiences in reducing implicit biases, it must be noted that her research was conducted in mock trial scenarios with mock legal decisions. These scenarios involved dichotomous verdicts – guilty or not guilty – which may be incapable of capturing the intricacies of a juror’s decision-making process. By recognising the constrained perspective of Salmanowitz’s research, it may be questioned whether or not these experiments can actually model and analyse complex implicit racial biases in courtrooms. However, as legal decisions are difficult or near impossible to simulate, whether or not the impact of VR has been exaggerated through inaccurate experiment design and modelling is an issue that can only be resolved when VR is applied to an actual courtroom. 

Furthermore, VR’s success in lowering IAT scores is a testament to its fundamental ability to reduce implicit racial biases. The success of utilising VR experiences in other fields, such as improving emotion recognition by domestic violence offenders and increasing empathetic sentiments towards the homeless, shows the adaptability of VR technology in a range of different scenarios. Thus, even though this technology is yet to be applied in an actual courtroom, its performance in other experiments is promising, as it shows that VR can be easily improved and tailored to new roles.

Would the legal profession be accepting of VR technology? 

If VR experiences were to be incorporated into NSW court processes, the legal profession’s response to implementation would need to be considered before doing so. In his 1998 speech, Justice Kirby attributed historical resistance towards new technologies to the “psychological barrier which must be breached to raise awareness of judges and lawyers of the technological engines of change”.

However, Justice Kirby also noted at the time that the High Court of Australia had stood “foremost in its embrace” of new technologies, such as the use of audio-visual links for special leave hearings from 1987. Thus, the Judiciary embraced the integration of law and technology as far back as over thirty years ago. Chief Justice Allsop recently noted in a 2019 lecture at the University of Queensland that it is indeed the courts’ responsibility as “core public institutions…to take a leading role in the responsible implementation of technology in the law and in legal practice”, and it has therefore most likely been instrumental in the Australian legal system’s transition towards technological change that the nation’s highest court has been amenable to innovation.

It has indeed become evident in recent years that the drive to integrate technology into existing processes has grown within all tiers of the Australian legal system. For example, within NSW, the impetus has been embodied by the development of committees which aim to advise legal practitioners and facilitate the exploration of new legal technologies, such as the Law Society of NSW’s Legal Technology Committee and the Innovation & Technology Committee within the NSW Bar Association. Therefore, the facilitation of further integration of law and technology appears promising. 

In an increasingly technological world and amidst exponential public concern over bias hindering the fair administration of justice, VR poses a real, tangible solution in placing judges and juries in the position of the defendant. Allowing them to truly ‘walk a mile in another’s shoes may bring the Australian legal system one step closer to true impartiality in law.