The Guyana Bar Association has been warned that it must pivot or perish in the face of new technologies that are changing the way justice is sought and delivered,
Delivering the feature address at a symposium last Friday in observance of the Guyana Bar Association’s second annual Law Week held under the theme “New Legal Frontiers – Preparing for the Future,” Justice Winston Anderson of the Caribbean Court of Justice (CCJ) said that at the centre lie challenges to the legal profession in technological advances.
The judge, who is also Chair of the CCJ Academy for Law, said that the motif could be taken to reference challenges facing the legal profession as it moves into the future, but opined that the greater test was not just disruptive of the current legal order, but existential challenges to the legal profession with advances being made in technology.
The intersection of law and technology as he aptly described it, continues he said, to intensify in all aspects of our lives and is the single most important driver of economic development and societal advancement.
He said that the legal profession, which has never been the most innovative, has, in recent times undergone seismic technology-induced changes.
The CCJ judge said that current technologies allow for programming basic legal propositions into decision trees and delivering legal answers to the public through tools that people use every day such as Facebook, Messenger, and WeChat.
He said that these messaging apps allow a person to speak to a computer programme as if speaking to a human lawyer. He noted that a person with a legal problem could also now use a smartphone and ask a robot lawyer for advice on divorce, custody, hire purchase, rentals, conveyancing.
Justice Anderson said that predictive artificial intelligence (AI) has powerful potential for increasing access to legal services by those traditionally excluded because of costs, noting that the only requirement was a smartphone. Advances in voice recognition, technology and voice as user interface, he said, allow the offering of legal services to thousands in the Caribbean and to the 750 million people worldwide who are illiterate and cannot read and write.
Justice Anderson said that automation of contract review, legal research, and predictive analytics are just some examples of how AI was being used to transform the legal landscape. But even more profound, he said, was AI’s intrusion into the process of judicial adjudication itself, while noting that it was now becoming commonplace for judges to employ AI to help in determining the mean (average) sentences.
He said that using AI was somewhat understandable since some sentencing guidelines are so complex that only calculators can properly make the calculations. On this point he gave the example that China’s Supreme People’s Court reports that AI had cut a judge’s average workload by over a third, and saved Chinese citizens 1.7 billion working hours from 2019 to 2021, and its legal system $45 billion. He noted that AI systems were working through entire procedures, from investigations to prosecution.
Justice Anderson said legal technologies have quite profound implications for both the Bench and the Bar. As far as the Bench was concerned, he said, the Chinese judiciary’s use of AI was a possible harbinger of things to come and “Caribbean courts have already taken the first tentative (primitive) steps”.
He pointed out that judges and lawyers now routinely work on their laptop or iPad in court and that several courts have migrated from book to electronic research, from paper to online filings, and from physical to virtual hearings. “There is hardly the need for law textbooks and law reports unless they are used for decorating the walls in the judges’ chambers or conference rooms,” he said.
The CCJ judge boasted of the regional court being inducted into the International Consortium for Court Excellence (ICCE) only partly but still importantly because of the heavy reliance placed by the court on using modern technology.
He shared that the CCJ has implemented a Curia electronic court management software suite which has three modules: Folio, Attaché, and Sightlines and was among the first to implement virtual hearings which are now the norm. He said the last physical sitting was in March 2020, as it was the Covid pandemic which was an initial contributing factor.
He said that the potential of the JURIST supported and now CCJ managed Knowledge Management System (KMS) as a first step towards automated decision-making “is as significant as it is exciting.”
As regards the Bar, Justice Anderson told his audience that Lawtech was a key driver in law firm modernisation and was rapidly transforming the way attorneys deliver legal services to their clients. Against this background, he said, law firms simply must invest in new technologies if they are to be “fit for purpose – if they are to survive.”
He highlighted that many legal jobs will be lost but new ones will also appear, such as legal coders for smart contracts, and as legal data scientists for a new regulatory system that allows the new technologies to emerge and flourish. And there are some human characteristics, he said, which AI will not easily imitate—”the ability to strategize, negotiate, reason, make common-sense judgments and visit clients in jail.”
To prepare for this new frontier, he said, there was a need to pivot. “In my former life as a lecturer at the university, I lived by the creed indelibly etched into the minds of all academics: publish or perish. In facing the new frontiers of electronic justice, the legal profession must pivot or perish,” the judge declared.
“We must pivot from the old ways of doing things and embrace the new ways of delivering legal services. Bar associations and law firms might be tempted to fight the change and we should certainly seek to secure a soft landing. We must buy into the new electronic justice system and encourage our colleagues and key stakeholders: judges, lawyers, litigants, and the public, to do the same.”
He said that lawyers and judges must acquire digital literacy.
“Consider attending every course that you can on new legal technologies. If you are over 50 and you have grandchildren, stay close to them. These little people seem to have been born with the electronic gene in their DNA. If you have no grandchildren but have adult children threaten to write them out of your will unless they do their genealogical duty,” he advised.
“We must pivot to cooperating with the regulatory agencies, as appropriate, to facilitate the rise of a regulatory framework that creates the right ecosystem for the new technologies to flourish but also to operate within constitutional norms and standards. And we must pivot to educating the new generation of legal talent.”
He noted that the course Law and Technology must be introduced into the curriculum of every Caribbean university, underscoring that it is currently taught in none.
Justice Anderson said that an increasing number of countries are embracing AI, while Guyana has launched an AI lab with the help of IBM.
He said the reference to the possibility that AI could help with the problem of crime provides a neat segue into a discussion of the relationship between law and technology. He said that like technology, law is omnipresent in our lives and the legal profession, which has never been the most innovative, has, in recent times, undergone “seismic technology-induced changes.”
A key driver, he said, was government regulations, which range from the seemingly innocuous requirement to wear a seat belt in motor vehicles to requiring electronic recording of confessions to secure the integrity of the criminal justice system.
Another key driver he said was client expectation. He noted that clients now expect to speak with their lawyers through e-mail and e-portals, not having to make an appointment and wait days to be seen in legal offices. “The law firms that are starting to break away from the traditional approach by offering online portals and online updates, have a decisive competitive edge,” he said.
The third critical driver is access to justice. On this point Justice Anderson said that large portions of our populations simply do not have meaningful access to lawyers and/or to the courts; presumably innocent people often have lengthy remands before trial.
Referring to a judgement he had written, Justice Anderson said that science and technology have given society the most accurate and reliable means of discovering facts in and about the world. And the judicial function, he said, was obliged to make use of these means, whenever reasonably practicable, so as to ensure that findings of fact in the judicial process accord as closely as possible with reality. “Where scientific and technological methods are reasonably available but not used, constitutional questions could arise concerning the integrity of the system of justice,” he said.
