I have fond memories of reading Online Courts and the Future of Justice, and it was a stroke of luck to get a public ticket to LawTech UK Investor’s event 2024 and listen to Richard Susskind in person.

In his key note address, Susskind made a point that he had also made in writing: people don’t want lawyers as such, they want legal services. If technology can replace the need for lawyers, customers will choose technology over lawyers. As he put it provocatively: no one wants neurosurgeons, they want to stay healthy instead.

However, after attending the event, I couldn’t help but think there is an outstanding issue.

It is hard to disagree with the thesis that technology has transformative potentials for the Law. The transformations are all too apparent already.

In the past legal research had to be conducted by hand, and a QC I know personally was famed for his prodigious memory and ability to remember many, many cases off the top of his head.

The landscape is very different now. Judgments are often delivered in writing (as oppose to “ex tempore” i.e. oral judgment immediately after argument). They are longer, easily available online, and come out so thick and fast now very likely nobody can read everything that comes out every day.

Email and legal search engines weren’t widely available in my parents’ generation in law firms and chambers. They are now so much part of the landscape that I wouldn’t feel comfortable advising on anything other than the most basic points without an obligatory search.

Contrast Lord Devlin who had to listen for hours of oral argument, with Counsel reading aloud out judgments word-by-word. He even had to share a law report with the Law Lord sitting next to him, because there just weren’t enough copies to go around (cf. Justice Leeming’s talk on Justice Sackar’s biography of Devlin here).

So, the issue is not whether cutting-edge digital technology will affect the development of the practice of Law. The question is how we would like this to happen, and whether the legal profession (judges, practitioners, academics) can drive the direction of change, as opposed to merely react to whatever is on offer by the publishers or tech companies.

It is now well-known that, due to individual choices and policy interventions, technology can develop in different directions. People in the right places (because of their technical skills or commercial clout) can influence the direction of travel.

  • There was a period in the 1990s when Microsoft was set to monopolise the world of technology with its proprietary software. Then along came Linus Torvalds, who invented the free Linux kernel. This together with Richard Stallman’s collection of free software made it possible for companies to break out of Microsoft’s “walled garden” and create thousands of tech startups for themselves.

  • Without Linux, there would likely not be the start-up landscape of today.

  • Similarly, if Netscape did not decide to open source its browser (which became Firefox), Microsoft may still enjoy a monopoly in browser technology, and the products available to customers will be very different.

  • In another area, most of Western society has accepted as a matter of compromise, a significant degree of our privacy needs to be sacrificed for the benefits of free web services, e.g. Google search, Facebook and WhatsApp. As the saying goes, “when the product is free, you are the product”: but it is a compromise most people in Western society has accepted.

So far, the examples above relate to technology in society in general. As a profession, lawyers has little say on how these matters should be resolved : ultimately, it is a political and economic choice to be resolved by ordinary political and market processes.

But there are value judgments within legal tech itself that the legal profession (headed by the judiciary) should have make. For example:

  • Should the basic software that judges and lawyers use be open source? Almost everyone in the Law is used to Microsoft Word: but ultimately Word is a commercial product offered by one American private company.

  • Efforts have been made (e.g. in Germany) for the Government to adopt an alternative open source digital infrastructure. Is this something the legal profession should follow?

  • Less ambitiously, just looking at the publication of judgments, are we taking enough steps to ensure that judgments are published online in a way that can be re-used in different forms?

  • Recently, I attempted to make a website to break down and more easily digest a 250-page first instance judgment. But it turns out that that the data made available by the National Archives contained significant anomalies and were not straightforward to navigate.

  • Is this a problem we should prioritise? Should the legal profession actively encourage an eco-system of open source technologies that can compete against the big platforms? Or is having pay-walled big platforms a necessary price to pay for the service they provide?

(More specially, should BAILII (whose terms of service prohibit this kind of editing) be asked to change the licence terms to encourage a better legal system?)

I touch on open source and open data above, but similar philosophical questions can be asked of more topical issues such as LLMs. It is clear that LLMs can be harnessed to tackle issues relating to access of justice. But it is also clear that they could widen the inequality.

Most obviously: suppose generative AI could be used to create some kind of super-App which gives the user an immediate (and accurate) way to assess the risks of winning or losing a case given a particular set of evidence. Furthermore, suppose it can assess the chances of, and the stage at which, the plaintiff will accept a compromise, for using example the plaintiff socio-economic data.

This may well be happening already: for example, personal injuries cases are often compromised, and insurers presumably has a wide and comprehensive dataset of how cases settle.

With AI tools, the insurer would be able to effectively bargain and offer the lowest possible settlement offer, at exactly the stage where the plaintiff is most likely to accept.

Do tools like this help or hinder access to justice?

There are arguments both ways. Given the enormous resources currently spent on personal injury litigation (cf. Lord Sumption, Abolishing Personal Injuries Law – A project), it may be that, overall, it is better for insurers to be able to settle early and avoid rising costs.

On the other hand, there is an obvious issue of an unequal playing field. Here, we are no longer talking about the injustice in one side being able to hire more expensive lawyers than others (cf. Wilmot-Smith on Equal Justice). We are talking about a contest where one side is subject to the fog of war in a way that the other side isn’t.

But whatever the answer, this is a debate that needs to happen, and judges and lawyers should play a leading role in it. Yielding the floor to venture capital and market forces would be unwise and ultimately damaging to the intellectual standing and authority of the discipline of law.

(Revised on 28 Jan 2025)