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 issue that wasn’t quite addressed by the address.

It is hard to disagree with the thesis that technology had transformative potentials for the Law. The transitions are all too apparent already. Online courts is just the simplest example.

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. Judgements are more often written (as opposed to oral), more often published on one of the many platforms available, have got longer, and come out so thick and fast now it is unreasonable for anyone to be expected to read them all.

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 on everything other than the most obvious issues (and sometimes even for those too), I don’t feel quite comfortable doing a quick search to see if there is any written source expressing backing my proposition up.

Contrast Lord Devlin who had to listen for hours of oral argument, with Counsel reading out judgments word-by-word orally, because he had to share a law report with the Law Lord sitting next to him (cf. Justice Leeming’s talk on Justice Sackar’s biography of Devlin here).

So, for me (an initially reluctant digital native), the issue is not really whether cutting-edge digital technology will affect the development of the practice of Law. There is no doubt it will. The question is how we would like technology to affect the practice of law, and what (if any) say the judiciary, the legal profession and the wider public should have in the process.

It is obvious that, due to individual choices and policy interventions, technology can develop in many different directions.

  • Had Linux not been invented, most of the world will likely still be using proprietary technology owned by Microsoft, as opposed to the free, open source Linux operating system that powers most of the influential technology companies (including Big Tech) nowadays.

  • Had Netscape not been transformed into Firefox, we may well still be using Internet Explorer (or another variety of Microsoft proprietary software) today.

  • In another, this time more widely publicised area, most of Western society has accepted as a matter of compromise, quite a significant degree of our privacy needs to be traded off for the benefits of free web services, e.g. Google search, Facebook and WhatsApp. These “free” services may see users as their product (given that they have clever ways of making advertisers pay for targeted ads), but for the majority of the population, this is a price worth paying.

So far, the examples above relate to technology in society in general. The judiciary and the legal profession can (and should) have little say on how these matters should be resolved: it can and must be resolved instead by the ordinary political process.

But there are choices within legal tech itself that (I feel) the judiciary and the legal profession should have a say. For example:

  • Should the basic software that judges and lawyers use be open source? Almost everyone in the Law is used to the Microsoft Word, which makes it easy to forget that ultimately Word is a commercial product offered by one American private company, and that many alternatives made by civic-minded developers (who release the software for free) exist. Efforts have been made (e.g. in Germany) for the Government to adopt an open source digital infrastructure: is this something the legal sector should consider as well?

  • 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 as a layman.

  • There may be all sorts of technical reasons for this, but behind it there is a more fundamental philosophical issue. Should taxpayers invest in a system where even a comparative layman can, say, download a Judgment in an easily editable format, so as to make educational and journalistic websites from it? Or should everyone be content with what is made available on the National Archives or BAILII (whose terms of service prohibit this kind of editing)?

I touch on Open Source and Open Data above, but similar philosophical questions can be asked of much more topical issues such as LLMs. It is clear that LLMs could 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, in a meaningful sense, gives the user an immediate (and accurate) way to assess the risks of winning or losing a litigation given a particular set of evidence. Furthermore, suppose it can assess the chances of the plaintiff, and the stage at which, the plaintiff will accept a compromise, using for example the plaintiff socio-economic data.

One thinks of, for example, personal injury cases, where the insurer may need to process a massive number of cases from people of a wide range of backgrounds.

Venture capital working the way it currently does, such tools will likely end up in the hands (and only in the hands) of the insurers. And with such 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.

Would the existence of such a tool (if it doesn’t already exist) help or hinder access to justice?

The answer may be far from straightforward. 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 to save costs so that insurers have more to pay the injured.

On the other hand, the availability of such a tool to an institutional defendant seems to create a very unequal playing field. In this scenario, 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.

So perhaps, the discussion we should be having isn’t whether we should have legal tech (and how to get funding for it). Instead, there is the prior question of what legal tech should we want as a legal community for the society as a whole.

  • Which sort of legal tech should be free and open source; which should be proprietary; and why?

  • In what area of law should legal tech be seen as a mere extension of law as the provision of private professional service (e.g. contract review, due diligence), in which market competition is necessary and to be encouraged?

  • And in what area of law should legal tech be seen as part of the basic justice architecture of our society, which should not be “bought and sold” as per the Magna Carta?

If these questions are not addressed and discussed, the development of law tech (and the practice of law itself) will be left to market forces, with no special input/consideration as to their impact on the administration of justice (or other values held dear by lawyers). This seems to be quite a risky position to take for the legal profession as a whole.