For lawyers, 2018 was the year of the algorithm—the year that sophisticated computer intelligence emerged both as a legitimate aid to legal decision-making and as a potential source of discrimination, bias, and error.
Everywhere, it seemed, members of the legal community were debating the pros and cons of artificial intelligence’s (AI) encroachment into the legal space, extolling its virtues (efficiency, speed, cost-effectiveness, accuracy, for example.), while admitting its shortcomings (it’s not perfect, after all), and not-so-secretly wondering if AI might eventually push them out of a job.
For lawyers who are concerned about being rendered obsolete by a few clever circuit boards, it might be helpful (and comforting) to keep in mind a few things that good lawyers do that can never be replaced by computer, no matter how smart it is.
So, here are eight things computers and robots can’t do, but lawyers can:
- LISTEN: Granted, advances in Natural Language Processing (NLP) have been impressive, but no matter how good a computer gets at recognising words, it will never grasp the meaning behind those words. More importantly, a computer cannot give clients the reassuring feeling that they are being heard—that their lawyer is listening intently to the details of their case and understands the larger human dimensions involved, including the anguish and frustration that often prompt a legal challenge. Computers can record, but they cannot listen.
- EMPATHISE: Empathy is more than just sympathy on steroids, it’s the ability to imagine and feel what someone else is feeling, thinking, or experiencing. Empathy requires a high degree of emotional intelligence and exists in combination with a rare form of courage—the courage to be vulnerable to someone else’s pain. Lawyers who empathise with their clients inevitably create a close personal bond with them, a bond that lets the client know they are not alone—that someone else shares their anguish and feels the depth of their grievance.
- ADVOCATE: One of the reasons people hire lawyers is to fight or advocate on their behalf, and to confront people or situations that are too volatile for them to handle themselves. By nature, many people are uncomfortable with confrontation, so they rely on their lawyer to argue for them and, if necessary, channel the anger they can’t into a passionate, articulate, persuasive argument or defence. Clients know when their lawyer is fully committed to their case (and when they aren’t), and there is tremendous value in that knowledge.
- CONTEXTUALISE: Data-mining and AI analytics might be good at sifting through massive amounts of information and finding certain patterns and connections, but what analytics can’t do is understand the larger cultural, political, and psychological contexts in which the data under analysis exists. Even AI software that supposedly ‘reads’ human emotions by analysing facial micro-expressions, while useful and interesting in its own right, cannot begin to fathom the emotional dynamics of two people in a relationship, for instance, or the psychological complexities of a dysfunctional family, or even the micro-deceptions employed by a professional poker player. AI might someday shine some light in interesting places, but it will never illuminate the whole picture.
- INTUIT/COUNTER-INTUIT: Sure, AI researchers are busily trying to design algorithms that simulate human intuition, but the unconscious, holistic, and largely involuntary processes that produce gut feelings, snap judgments, and other forms of extra-sensory awareness are still a programming mystery. AI can certainly assist with certain types of decision-making, but it can’t formulate a counter-intuitive legal argument, for instance, or account for intangibles that can’t be quantified—such as degrees of trust, depths of personal experience, or the influence of various cultural biases on the way people think, act, and feel.
- UNDERSTAND JUSTICE: Part of the reason the law exists is because reasonable minds can disagree on just about anything, including the definition of ‘justice’. Without the general idea of a fair, impartial hearing based on facts and truth, however, the law would just be a glorified rule book. Imperfect as it is, the idea of justice is a concept that binds society together and feeds a deep human need for rationality, fairness, and order. The core motivation for many lawyers is to pursue ‘justice’, and that’s not something an algorithm could ever understand.
- NAVIGATE POLITICS: The law is a human construct, and it is written, interpreted, enforced, and even manipulated by millions of flawed human beings engaged in an endless series of power struggles, all of which serve as the backdrop for the administration and adjudication of justice. Even the smallest towns can have Shakespearian levels of personal intrigue between law enforcement, attorneys, politicians, and the court. Good lawyers understand the human forces at play in their communities and take them into account in their work. A computer algorithm can’t understand a community any more than it can understand what is going on in House of Cards.
- TELL A STORY: Yes, so-called ‘deep-learning’ algorithms can manipulate elements of character and plot to create something that reads like a story. What an algorithm can’t do is build a narrative from scratch that uses facts, ideas, symbols, and metaphors to communicate abstract concepts or appeal to a human being’s sense of right and wrong. Nor can an algorithm change the order and presentation of a story’s details to appeal to different audiences. Good lawyers are powerful, persuasive storytellers, and their skill in this area is not something an algorithm will be able to replicate anytime soon, if ever.