Aligning AI with Access to Justice
The Bar stands to gain by aligning its use of AI with improvements in access to justice and our working lives, write Harry Hodgkin and Stephen Ward.
The rapid advances in artificial intelligence technology clearly present challenges but also opportunities for barristers. Contrary to scaremongering claims that robots will take our jobs, and provided we are careful, we believe that AI technology will enable the Bar to reach more clients and help solve some of the well-known and ongoing access to justice problems that individuals and small businesses face.
Yes, it will inevitably alter the way barristers work – and that should be seen in a positive light. The shift to AI should be proactively welcomed by the profession, subject to appropriate controls to guard against the significant potential for reputational damage caused by its misuse.
The key yardstick against which the use of AI technology at the Bar should be measured is access to justice. The impact may be considered in terms of public perception, internal systems and efficiencies, including those related to pupillage, distribution of work, and cost-effectiveness. In all these areas, the Bar stands to gain by aligning use of AI with improvements to access to justice.
Potential clients will increasingly be able and willing to use Generative Pre-Trained Transformer (GPT) technologies to carry out their own legal research, obtain useable precedents and guidance for the preparation of statements of case and applications, and to evaluate the merits of their case in ways that would not previously have been available to them without using a lawyer. This kind of technology is becoming increasingly commonplace, sophisticated and reliable (though note the risks of AI hallucinations).
As a result, some members of the public may be encouraged to believe (whether they should or not) that they can represent themselves before a court or tribunal without an advocate. Others, probably a larger proportion, will become increasingly confident that they can deal with the conduct of litigation and some or all of the paperwork involved in the preparation of their case without the assistance of a lawyer. This is likely to apply to individuals, as well as in-house lawyers or representatives of small and medium-sized enterprises (SMEs).
Such individuals or representatives will increasingly realise that they can pick and choose which particular parts of the legal journey they wish to be accompanied on, and by whom (and they might wish to be advised about that). To take a typical example, a party to an application for a child arrangement order, unable to afford the services of a solicitor to conduct the litigation but bolstered by information and guidance provided using Chat GPT, might well be able to afford the services of a specialist family barrister, retained solely for the purposes of representation at the hearing.
This sends an extremely positive message in terms of access to justice. It says to a member of the public that you can engage a first-class specialist advocate in circumstances where you might otherwise have been unable to do so.
Fair distribution of work
It is a regulatory requirement that unallocated work received in chambers should be distributed among members, irrespective of age, gender or ethnicity and that the distribution of work should be accurately monitored. The ideal is the creation of an objective system seeking to avoid conscious or unconscious bias in the choice of barrister. An AI system will play an important role here and can help to create a positive culture within chambers. The selection process should be objectively assessed against measures relating to experience, levels of specialism and the areas of work and fee levels in which the barrister wishes to operate.
In assessing levels of experience and degrees of specialism, the system should be capable of reaching objective conclusions as to a barrister’s level of experience or seniority, based on data analysis. In determining areas of work and appropriate fee levels, barristers should be able to decide their own preferences with a full understanding of the extent of any disparity between their position and those of colleagues. In this way, a search can be carried out informed by AI first, to ascertain all candidates satisfying the particular requirements of the search criteria, cross-checked against diaries to ensure availability. Then this can be reduced to a single candidate (or such short-listed number as required) based upon selected criteria including geographical location, work distribution and levels of receipts. If used correctly, an AI system of this kind has the great benefit of removing any perception of bias. It promotes on merit. It matches the best available candidate or short-listed candidates to the specific requirements of the customer. It offers consistency. And it results in better client satisfaction, offering more choice to solicitors and clients alike.
Effective case management and diary systems should be organised to make the clerking processes as efficient as possible and free up time to solve client problems and focus on client care and relationship building. AI can help to streamline these essential processes, creating more capacity for tasks needing specific talent resources.
AI also has the potential to revolutionise the way pupillage is offered, with the ability to detect stress and unusual behaviour. It can reduce training costs, inform the creation of high quality training content, and help manage the complex administrative and regulatory processes, allowing the pupil and pupil supervisor to focus on the training. The aim should be to build a technology-based pupillage recruitment scheme that enables a wider range of people from varying backgrounds to enter the profession based on merit. This will ensure that the membership of the Bar is a proper reflection of the society that it represents.
Efficiency and effectiveness
The use of AI to process vast amounts of data at great speed will enable a barrister to carry out phases of legal research in a fraction of the time that it would have taken. However, the process is no substitute for the need carefully to review and evaluate the material to ensure that the advice, statement of case, or submission is properly reasoned and persuasively and succinctly presented. (Judges will not be amused if AI has the consequence of causing lists of issues or skeleton arguments to become convoluted.) These nuances of skill and expertise will remain as sought after as ever. The simplification of the process of research (and the increasing ability of solicitors and the public to carry out a good deal of that research themselves) will both challenge the Bar to keep up with the pace of change, and serve as an opportunity for the profession, derived from the likely greater number of people believing they have a valid claim.
Pioneers at the Bar
AI will thus accelerate the need for the Bar to become more specialist. Although AI cannot (dare one say, ever?) compete with the level of expertise of barristers, it is important that the Bar embraces the technology for the public good, subject to appropriate regulatory safeguards.
A positive message in favour of access to justice should be communicated, and the public informed that the services of the Bar can be divided between the consumer and provider (‘unbundled’, to use the current expression). This would make legal advice or representation affordable for more.
A Bar of the not-too-distant future will benefit from AI. Perhaps we will see barristers group together in larger, technology-driven organisations with systems built specifically for the profession, which would also help to inform potential clients more quickly and effectively on the pros and cons of pursuing litigation and provide better outcomes for all stakeholders.