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This autumn sees the release of Richard Susskind's new book, "Online Courts and The Future of Justice," from Oxford University Press. The book argues that to address the current access to justice gap, there needs to be transformation of courts through the leveraging of technology. Specifically, Susskind calls for "online courts" which provide two distinct services: "online judging," where human judges receive evidence and arguments, and deliver decisions through online platforms; and the "extended court," where technology helps court users understand their rights and available legal options.

Legaltech News is publishing excerpts from the book that uniquely highlight the pressing and complex issues facing the legal industry as it leverages technology to make legal services more widely available, efficient and equitable. In order to spark thought and conversation about technology in the courts and the broader legal industry, Legaltech News reporters have solicited insights and reactions to these excerpts from a variety of legal and tech professionals.

Excerpt: Chapter 26: Artificial Intelligence

It transpires that insistence that there are tasks that can never be undertaken by machines often rests on the 'AI fallacy'— the belief that the only way to develop machines that can perform at the level of human beings is to copy the way human beings work. The error here, to repeat, is to fail to notice that many contemporary AI systems operate not by copying human beings; instead, they function in quite different and unhuman ways. …

Unimaginatively, this error takes an excessively human-centric view of AI. The point is widely appreciated when it comes to autonomous cars. No one seriously suggests that the best way to make progress in that field is to design and build robots that should sit in the driving seats of traditional cars, copying the way that humans drive. But that is the equivalent of imagining the robot in the courtroom, hospital, classroom, or office as a substitute for the professional.

Instead, our increasingly capable machines will take on the work of professionals by undertaking tasks in ways that are best suited to their unique capabilities and not ours.

Analysis

Richard Susskind writes that an "AI fallacy" leads to the the legal industry's misunderstanding of what artificial intelligence-backed software can and likely will do to improve legal services. 

However, while lawyers recognize that AI reviews documents at a speed and accuracy humans can't match, they say that the technology still mimics some of the way humans work. 

The potential of algorithms in software having bias is one example of how AI isn't as unhuman as some may think. Indeed, humans will routinely have to review software-based results to spot any potential bias. It's part of a larger ongoing cycle of human and machine interaction that is important when using AI for legal services, lawyers and vendors said.

"We are taking advantage of the strengths of the machine, and it can work perfectly if we're sure we are peer reviewing [it]," said Jackson Lewis national e-discovery counsel Ralph Losey,

"I don't think the process of document review exists without humans," added Rakesh Madhava, CEO of e-discovery cloud platform Nextpoint. "The algorithms can help humans determine what's been produced but humans design the algorithm, humans are ultimately going to be involved in actually producing/determining the final production."

However, Susskind noted that while humans are essential in the development of AI, the technology still reviews data extremely unhuman-like way.

"It's different and unhuman because it's not using cognitive processes, it's using machine learning processes, which they aren't copying or replicating the reasoning of lawyers," Susskind said. 

Still, while lawyers' reasoning isn't leveraged in machine processing, the results of an AI system must be translated comprehensibly, said Abhijat Saraswat, vice president of international business at Litera, whose products include document assembly and contract review software.

"If it can do more than what a human can, but is presented in a way that is useful to a lawyer, that is the most useful product," he said.

While humans still need to oversee and translate AI, Susskind argued they should not hinder what the technology can do, especially when it comes to helping bridge the access to justice gap.

"The AI fallacy that judges and lawyers often rely on is: You can not use technology to replicate the oral hearing," Susskind said. However, He argued, "We aren't going to have oral hearings in the [online court] case because it doesn't make sense and we won't solve access to justice by asking them to go to a courtroom. [Instead] we will ask them to go on the internet."