Systemising Advice

Abstract
Legal practice is all about information communication, use and management.
The Digital Paradigm enables improved and efficient use of information systems
to commoditise basic and repetitive advice common to many legal issues. Legal
Expert Systems - a subset of Artificial Intelligence - provide further opportunities
to develop advice giving processes and systems. This presentation will discuss
how Legal Expert Systems can be deployed, how they can be created and their
possible application beyond the law office and in the Court system, thus
enhancing access to justice.

Introduction
Artificial intelligence (AI) is misunderstood and has been the subject of a
negative press. When such authorities as Stephen Hawking1 and Eion Musk2
express concerns about the future of AI the news media sits up and takes notice.
In addition a number of observers have expressed the view that emerging smart
machines risk constituting a new set of masters controlling humanity.3 These
concerns are not new. History is replete with adverse reactions to new
technologies, especially when those machines have a disruptive effect upon
established systems.

But AI occupies a special place in the pantheon of disruptive technologies.

Wrongly it has been associated with robots and an almost atavistic fear of the
created being going back to the Golem of Prague and manifested more
recently in Mary W. Shelleys book Frankenstein or the Modern Prometheus. The
science fiction writer Isaac Asimov coined the term the Frankenstein complex
to explain the fear of robots in his series of books and short stories about
robotics and interestingly developed what are known as the three laws of
robotics which were designed to assuage human fears of robots getting out of
control.4 Although Asimovs robot stories are classified as science fiction, in fact
they are exercises in rule interpretation. The very successful Terminator movie
franchise depicted robots and machines taking control, uninhibited by Asimovs

1
Rory Cellan-Jones, Stephen Hawking Warns Artificial Intelligence Could End Mankind, BBC NEWS(Dec. 2,
2014), http://www.bbc.com/news/technology-30290540 [https://perma.cc/Q4YD-ZURC].
2
Samuel Gibbs, Elon Musk: Artificial Intelligence is our Biggest Existential Threat, The Guardian (Oct. 27,
2014), http://www.theguardian.com/technology/2014/oct/27/elon-musk-artificial-intelligence-ai-biggest-
existential-threat [https://perma.cc/SZD4-7WCL]
3
John Markoff ,Machines of Ling Grace: The Quest for Common Ground Between Humans and Robots (Ecco,
New York, 2015) p. 327
4
The three laws of robotics read:
1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
2. A robot must obey orders given it by human beings except where such orders would conflict with the
First Law.
3. A robot must protect its own existence as long as such protection does not conflict with the First or
Second Law.
three laws. Robots and machines occupy a special position in the fear of the
unknown spectrum of human experience.

One of the aspects of AI machine learning, which I will discuss in more detail
shortly has expanded across a number of facets of human activity. Anxiety has
emerged about the intrusion of these algorithmic systems into facets of life
previously the domain of human judgment. Alarm bells sounding over the spread
of AI through the private sector portend even greater anxiety about digital
systems replacing humans in the activities of government. There is a deep and
fundamental suspicion about AI that is magnified when it comes to developing
rule systems. The thought of using algorithms to substitute for human decisions
suggests an irreversible threat to democratic governance and the development
of opaque decision making undertaken by computerised overlords.5

Should we really be worried by this prospect? A look at the recent history of

human decision making based on insufficient, incorrect or inaccurate data does
not provide an outstanding example of good decision making. Putting to one side
the bizarre decisions of electorates in the US Presidential election of 2016 and
the Brexit plebiscite, human decision making is fallible to a disturbing degree,
especially in the public arena. The fact that it has taken 60 years to finally
complete a ring road network around Auckland is a searing indictment of
decision making fallibility possibly, at times, paralysis that gives little
confidence in the ability of decision makers in future.

Part of the problem, especially at a governmental level, is what could be termed

vested interest in the status quo. To actually embark upon a series of decisions
that could result in a successful outcome would be rather like turkeys voting for
an early Christmas. Too much success may mean that the decision makers job
security could be at risk. Auckland Transport, for example, has little interest in
solving Aucklands transport woes. To do so would be to remove their raison
detre.

Even if democratically elected representatives wish to make decisions about

improvements to society they encounter institutional inertia and self-interest
that was so graphically (and humorously) demonstrated in the BBC comedies
Yes Minister and Yes Prime Minister.

On the other side of the vested interest in the status quo coin are the disasters
that occur when decisions are made. The lack of success in Government IT
projects seem to have resulted from a combination of factors involving
inadequate data, inadequate assessment of user needs and a total lack of
understanding of technology and its potential on the part of people who are
managers rather than technologists.

The business of the judiciary is to make decisions. Most of the time they get it
right. From time to time there are a few howlers. The New Zealand Supreme
Court decision in Dixon v R6 holding that a digital file is property for the

5
Cary Coglianese and David Lehr Regulating by Robot: Administrative Decision Making in the Machine
Learning Era (2017) Georgetown LJ (forthcoming) p. 5-6.
6
[2015] NZSC 147.
purposes of the computer crimes provisions of the Crimes Act arose from a lack
of understanding of the paradigmatically different nature of digital data from
that of earlier understanding of the nature of physical characteristics of property.

Problems arise when insufficient or inadequate information is placed before a

decision maker which make have tragic consequences. In such a situation the
decision becomes immediately contestable in the public arena and in the chatter
of social media rather than through established error correction processes such
as appeals.

The conclusion that follows from this very brief outline of the fallibility of human
decision making is just that human decision making is fallible and can deliver
outcomes that are perverse, wrong, expensive and from time to time tragic.

From this the question falls to be answered could a machine do it better?

Certainly AI can provide more accurate data and do so better and faster than
humans. If decision making is, as it should be, based upon the objective
accuracy and reliability of data, surely there is an argument for the decision
making process to call upon the systems that can deliver that data.

In this paper I propose to give a very brief overview of AI. I will cover three
major categories of AI relevant to lawyers Legal Expert Systems, Predictive
Analytics and Machine Learning. It will become clear in the discussion that when
I discuss legal AI I am NOT suggesting that AI can be equated with robot
lawyers.

I will then move on to discuss how AI may help in the legal office in the fields of
work systems, service delivery and client interaction. Following that overview I
want to examine in some detail Legal Expert Systems, how they work, how they
can be deployed to redistribute work types and provide a repetitive utility that
will free up the lawyer for more sophisticated analytical tasks. The discussion of
legal expert systems will demonstrate Professor Richard Susskinds theory of the
development of the commoditisation of legal service.

Finally I will engage in some day after tomorrow thinking and suggest some
ways in which AI developments are going to disrupt, innovate and transform
some aspects of legal practice.

Artificial Intelligence an overview

What is AI
AI is difficult to define. Experts define it to include technologies that
seek to mimic cognitive functions humans typically associate with other
human minds, such as learning and problem solving.7 Definitions vary. The
imitative suggestion is one approach. Another is to cast the definition in a
machine specific way. Thus Artificial intelligence becomes that activity devoted

7
Stuart Russell and Peter Norvig Artifcial Intelligence: A Modern Approach (3rd ed, Upper Saddle River, NJ,
Prentice Hall, 2009) at 2.
to making machines intelligent, and intelligence is that quality that enables an
entity to function appropriately and with foresight in its environment.8

Although definitions may vary there seems to be a common objective to push

forward the boundary of machine intelligence with the goal to achieve general
artificial intelligence where the machine can perform any intellectual task in any
area that a human can. This is referred to as a singularity.

At the moment AI functions within limited areas known as domains such as such
as driving a car, recognising speech, searching the internet, playing chess or
making product recommendations.

AI in some shape or form is reasonably pervasive to the point that we accept the
tools such as Siri or GPS recommendations for the safest or quickest travel
route. Thus we dont consider what goes on under the hood and we certainly
dont consciously think of it as AI.

Development of AI has been slow over the last 20 years but as processing power
improves and data becomes more prevalent research is increasing. Areas where
AI has had an impact have been in transportation and logistics where AI is being
applied to transport planning, driver assistance, collision avoidance and other
safety systems. AI plays a significant role in financial services. Algorithmic and
high frequency trading systems have been used since the early 1990s to achieve
faster processing times, analysis of large datasets, pricing and order execution.
Machine learning and analytics are now being used to self-correct and
continuously improve automated trading strategies with little human interaction.
Other areas such as e-commerce, education, healthcare and robotics all
participate in the data management and development capabilities of AI.

The deployment of AI into law has been with us for some time. That it should
extend further is inevitable. But this does not mean decisions by Terminator J.
Rather AI systems will enable the smarter use of lawyers time and expertise. It
will free lawyers up from repetitive tasks and enable far more targeted advice
based on more accurate data analytics. AI is already being used in e-discovery
using a number of different systems of which predictive analysis is becoming
well known.

What this paper does is to focus on three major types of AI legal expert
systems, predictive analytics and machine learning. I will briefly describe these
subsets of AI and will finish this section with a discussion of what is NOT an AI
future in law and consider whether or not there is ill-informed concern about AI
use in the practice of law.

I then want to look at some specific application of AI within the context of the
law office using Legal Expert Systems as an example. Finally I want to consider
some of the transformative effects of AI disruptions such as improvements in
access to justice, possible impacts upon litigation practice and some challenges

8
Nils J Nilsson The Quest for Artificial Intelligence: A History of Ideas and Achievements (Cambridge, UK,
Cambridge University Press, 2010)
to precedent in terms of the use of analytics and the impact that this might have
on precedent theory.

Legal Expert Systems

Expert systems are applications or programs that replicate the thinking and
actions of an expert on a specific question or task. They enable many people to
benefit from the expertise and judgement of experts anytime anywhere and cost
effectively. They create leverage at Internet scale.

Expert systems fall into four major areas.

1. Analysis and advice basically set up to provide answers to questions

based on an IF THEN model. Require a fact specific analysis and it must
be clear how the system reached its conclusion
2. Intake and assessment guide users through a system that collects data,
evaluates facts and issues and recommending actions to the user
examples may be an incident reporting system, a compliance review
system, a claim evaluation system or a due diligence guide.
3. Intelligent Workflow these can be long running sessions rules are
applied and messages are sent to multiple parties who contribute to the
system and when all the facts are gathered reasoning is completed and
the workflow is completed. Examples may be a process management
system, a leave request manager or a compliance authorisation system
4. Document automation leverage the software to create complex
documents of many types including complex legal documents

Generally fact values may be obtained from the user or sourced externally from
databases, files, web service or other applications. The expert system software
applies fact values to reasoning and sets conclusion values. This process
continues and when all the required values are generated and sent, databases
are updated and the session is complete.

Expert systems fall within the general field of what is referred to as artificial
intelligence. One must use that term with some care, for it may encompass a
number of different ways in which computer algorithms may be deployed. In the
current project the delivery in a simple form of possible outcomes from a
complex set of rules has been the objective.

Information retrieval systems and expert systems comprise two types of AI

applications used in law.9 An expert system is a system that is capable of
functioning at the standard of human experts in a given field.10

A legal expert system is a domain-specific expert system that uses artificial

intelligence to emulate the decision-making abilities of a human expert in the
field of law.

Legal expert systems designs are categorized as either case-based or rule-

based systems. Often researchers build systems on a combination of the rule-

9
John Zeleznikow and Dan Hunter Building Intelligent Legal Information Systems in the Law
H.W.K. Kasperson et al. eds., Kluwer Computer Law Series 13 1994 at 4.
10
Ibid at 69.
based and case-based approaches. Rule-based systems are the most prevalent
legal AI expert systems. These systems store legal knowledge as rules. The rule-
based systems reason directly with these legal rules through formal logical
deductive and inductive methods. Case-based systems operate by comparing
the intersections of facts in a database of past cases, called exemplars, with the
facts in the present situation.

The case-based system attempts to draw analogies between the exemplars and
the present case in order to retrieve the most on point cases

Predictive Analytics
Predictive analytics is the practice of extracting information from existing data
sets to determine patterns and predict future outcomes and trends. Predictive
analytic programmes are already being applied to massive datasets to spot
trends and generate insight around case behaviours. These tools add to a stable
of technological innovation

Some systems such as Premonition in the US try to predict the outcome of court
cases based on multiple criteria, including the courthouse, the judge and type of
case. Such tools can help lawyers decide whether the case is worth taking to
court at all and therefore avoiding unnecessary and substantial costs for their
client. With a predictive analytic layer, a system might not only find relevant
answers, but also chart the best course of action.

Premonition takes public court data from different States, analyses, normalises
and standardises it into a single database, using machine reading processes. To
date the focus has been on the US, but its data for the UK is growing.
Premonition currently holds data for the UK high courts and is in the process of
adding tribunals. Trends so far suggest that selections made through an
established solicitor-barrister hire relationship result in a 38% worse outcome
than a random pick. Premonition is aimed at the GC market. Run on AWS Cloud,
Premonition gives access to data in real time. Corporate clients can buy a one-
off data report or they can pay a subscription fee for multiple use. Reports help
GC procurement decisions, but can also be a valuable tool for law firms pitching
to corporate clients to have stats about incumbent counsel.

Companies such as Lex Machina11 and Ravel Law12 have taken a big data
approach to metrics, trying to predict outcome probabilities using data
aggregated from many prior cases. Lex Machina started as a research project at
Stanford University. It has commenced by using analytics to assist in predicting
case outcomes in the intellectual property field, matching data surrounding
cases, courts and judges. They recently expanded so that commercial litigators
using the platform will be able to make data-driven decisions based on detailed
information about more than 62,000 commercial cases pending since 2009.
Strategic insights include trends in case timing, resolutions, findings, damages,
and remedies, as well as actionable intelligence on opposing counsel, law
firms, parties, judges and venues.

11
https://lexmachina.com/ (last accessed 28 June 2017).
12
http://ravellaw.com/ (last accessed 28 June 2017).
Ravel Law focuses on easier, data-driven legal research, layering analytics on
top of archives of case law data. By analysing cases, Ravel can identify the
language patterns of judges and leverage those insights to help lawyers
anticipate what language and arguments might be most persuasive before
particular judges.

Machine Learning
Machine learning is a type of artificial intelligence (AI) that provides computers
with the ability to learn without being explicitly programmed. Machine learning
focuses on the development of computer programmes that can teach themselves
to grow and change when exposed to new data (an email spam filter is a basic
example as the machine learns from user behaviour which features of an email
are likely to constitute it as spam).

In general, machine learning algorithms are designed to detect patterns in data

and then apply these patterns to new data in order to automate particular tasks.
This function is based on algorithms that can learn from data without relying on
rules-based programming. The larger the dataset the machine learning
algorithm can review, the more accurate it will become.

Computers can parse 1000s of digitised documents in seconds. Using language-

analysis algorithms, the machines not only spot relevant words and phrases, but
also discern chains of events, relationships and patterns.

When reviewing documents or undertaking due diligence, humans might look at

a sample, for example one in ten of all documents, machines can look at every
document.

What AI is NOT the demise of the robot lawyer.

The media often equate AI with robots. This raises the inevitable spectre that
lawyers will be replaced by mechanical men carrying briefcases, embarking upon
robo-litigation with their machine voices and bone chilling logic, arguing cases
before Terminator J. That is a manifestation of the Luddite thinking that
underpins Frankenstein complex. But there will be changes arising from AI.
Some of these changes may be:

1) Some lawyer jobs will be eliminated. Those which involve the sole
task of searching documents or other databases for information and
coding that information are most at risk.

2) Other jobs will be created, including managing and developing AI

computers (legal engineers), writing algorithms for AI computers; and
reviewing AI-assisted work-product (because lawyers can never concede
the final say or the provision of legal advice to an AI computer).

3) Most lawyers will be freed from the mundane task of data gathering
for the value-added task of analyzing results, thinking, and advising their
clients. These are roles that will always require the human touch. AI will
just be a tool to help lawyers do all of this better, faster, and less
expensively.
A consequence of all this is that legal education may have to undergo a
reassessment as technological competency becomes a requirement for the
twenty-first century lawyer.

But despite the drive towards greater use of technology, lawyers will still be
required. There are a number of reasons for this, all of them associated with
what could be termed the human condition.

1. Judgement is a skill. Lawyers take time to understand their clients and

their needs. Judgement is part and parcel of legal advice. Computers
cannot replicate this.
2. The answers to legal questions are not binary that is black or white.
Often they are many shades of gray. It depends is often the preface that
a layer may use to giving advice. The reality is that underlying every legal
problem are layers of context that computers are unlikely to be able to
handle.
3. Successful people dont use lawyers less. They actually use them more.
They want to talk to a person. They want to receive nuanced counsel. A
computer cannot replicate that personal relationship
4. A human adviser will consider circumstances, body language and a raft of
other intangible and often subconscious matters in obtaining the depth of
detail that is necessary to providing advice along with a rationale that the
client can understand that make it acceptable and capable of
implementation.

In essence, lawyering requires human-to-human interaction, creativity, language

processing at the highest level together with an understanding of how society
works and that sort of experience can only be present in the human context.13
On the other hand, 13% - 23% of lawyer time is automatable, and that means
that there will be significant changes in the way in which lawyers work. The
unwavering belief that the practice of law will not change, and that the legal
profession is immune from the changes that technology can bring cannot be
justified. What lawyers need to understand is what technology and AI can bring
to the table so that a clearer picture of possible futures for legal practice may
emerge.

How AI can help

There are a number of ways in which AI can be deployed in legal practice. I have
selected three.

Work Systems
I have suggested that a significant portion of a lawyers work is automatable.
Although the development of workflow processes may have been part of office
training or may have occurred to the lawyer in practice as more and more

13
Sterling Miller The Future of Artificial Intelligence Thomson Reuters
http://legalsolutions.thomsonreuters.com/law-products/news-views/corporate-counsel/legal-department-
2025/artificial-intelligence/future-of-artificial-intelligence-robot-lawyer-army-or-not (last accessed 6 July
2017).
repetitive work is done, if a portion of work can be checklists, procedure
manuals or workflow diagrams, that type of work can be automated.

If the work is automated and the processing of information is done by a machine

it means that the lawyers time is released to attend to more nuanced and
specialist advice. This has an impact upon service delivery.

Service Delivery
If a lawyer decides to automate certain processes it means that the client may
have an alternative way of interfacing with the law firm. Assume that the
acquisition of information and automatic provision of a first draft document is
the service offered. This can be provided online. It means that the client can
provide the necessary information at a time suitable to the client. No
appointment. No travel to the office. No matching of diaries. Once the client has
completed his or her side of the work the draft is available for scrutiny by the
lawyer.

Client Interraction
This means that the method and way in which the client interacts with the
lawyer has changed. Instead of the traditional face-to-face model or the
telephone or the use of mail or e-mail there is an additional facility a web-form
that enables a significant amount of work to be done.

When the client needs personal attention much of the mundane information
gathering and initial drafting has been done. The attention of the lawyer and the
client becomes focussed upon the nuance and the detail necessary to provide
the client with the specialist individualised side of legal advice

You can see from this example that the innovative use of technology introduces
changes in the way that legal services are delivered but at the same time the
lawyer has not been removed from the equation. In the next section I want to
describe how the work system model can be realised by the way in which Legal
Expert Systems (which I have discussed above) can be applied and the way in
which their use changes aspect of legal advice into a commodity.

Applications for Legal Expert Systems

Lawyers were originally identified as primary target users of legal expert
systems. Potential motivations for this work included:

speedier delivery of legal advice;

reduced time spent in repetitive, labour intensive legal tasks;

development of knowledge management techniques that were not

dependent on staff;

reduced overhead and labour costs and higher profitability for law firms;
and

reduced fees for clients.

Later work on legal expert systems has identified potential benefits to non-
lawyers as a means to increase access to legal knowledge.
Legal expert systems can also support administrative processes, facilitating
decision making processes, automating rule-based analyses and exchanging
information directly with citizen-users.

The benefits for clients are improved outcomes, reduced risks and reduced costs.
For the experts in the domain there are new revenue streams generated,
strengthened and improved client relationships and replacement of billable hours
with applications.

Commoditising Advice
Legal Expert Systems are one part of a number of different AI applications. But
what they do is that they allow the repetitive aspect of legal work gathering
information and applying fixed criteria to ascertain rule application to be
automated.

But the automation process is not bespoke. It has standardised elements to it

and is therefore reusable. Because it is reusable it can be considered a
commodity. This concept of the commoditization of legal work is discussed by
Richard Susskind.14 The standardisation element means that repetitive tasks can
be systemised because in many respects the processes that are undertaken by
Legal Expert Systems are based on workflow systems. This means that the
provision of this part of the service to the client comes at a significantly
decreased cost

Susskind gives the example of the insurance industry where there is automation
of high volume, low value tasks and activities.15 This way of automating
workflow can enhance the efficiency of legal work to the point where, using a
web-based service the legal expert system, available to the client on a 24 hour
basis, mean that the lawyer can literally make money while asleep.

The systemised approach can be applied to document drafting.16 Document

automation requires users to answer a series of questions on a screen and after
completion of the online form a first draft is made available.17 In all this process
a lawyer has not been involved, unless the user inputting the necessary
information is a lawyer.

This technology is not new. It has been around since the 1980s and it is a Legal
Expert System in that it uses a rule based decision tree. Susskind then takes the
use of these commoditized systems a step further. If the drafting a certain types
of contracts can be done online using a web-based interface, could this not be
done within a client organisation. Why employ an expensive lawyer to draft
bespoke standard form employment contracts when the process could be
undertaken within the Human Resources department of the organisation.18

14
Richard Susskind Tomorrows Lawyers (2nd ed) (Oxford, Oxford, 2017) at Ch 3 p.25 et seq.
15
Ibid. p. 29.
16
An example of an automated document drafting system may be found at Automnio which is based on
process flows see https://autom.io/ (last accessed 6 July 2017).
17
Susskind above n. 14 p. 29.
18
Ibid.
Does this mean that the lawyer gets cut out of the loop. Not necessarily.
Susskind suggests that the lawyer externalise the service. This occurs when
lawyers pre-package and make their experience available to clients on an online
basis.19 This is a different way of obtaining the expertise possessed by lawyers
and presents a number of different or alternative business models. The
externalised service can be made available as a chargeable one, albeit at a rate
less than for the bespoke product. There may be advantages on a per use
charging model at a rate that encourages reuse of the system. It may well be
that it could be made available at no cost a model favoured by government
and charitable organisations such a law clinics - or alternatively is could be
made available on a commons basis in the spirit of the open source
movement.

The advantages for the client are clear. The cost of legal services comes down.
The price of those services freed from the tyranny of the hourly rate
becomes more certain. The time to complete the work reduces. The quality of
the output increases because sitting behind the system is the collective expertise
of a number of professional which outclasses that of the individual.20

AI Transformations and Litigation

So far I have discussed the use of AI within the context of the law office and its
product. But litigation is not immune from AI.

One of the uncomfortable truths about AI is that when it comes to processing

data, machines outperform humans. Algorithms devoid of emotion, bias, and
free from fatigue have been shown to be better forecasters than the ablest of
humans. These algorithms are increasingly used in insurance, finance, medicine,
and human resources.

The rapid development of AI has been as a result of improved processing power.

Richard Susskinds doctoral work was in AI applications in the mid-1980s. Here
we are now some 35 or so years later during which time computing speed,
power, and capacity have doubled every two years or so. The ability to collect,
store, process, and analyze data continues to increase at an exponential rate. It
has been predicted that, in terms of calculations per second, computers will have
the capacity a human brain in the next twenty years.21

Technological development will lead to:

(a) a significantly greater quantification of observable phenomena in

the world (more data) and

(b) more accurate pattern recognition

using new technologies and methods (better inference).

19
Ibid.
20
Ibid. p. 31.
21
Ray Kurzweil, The Singularity is Near: When Humans Transcend Biology (New York, N.Y.: Viking
Press, 2005) at 167-81.
This increase in information will lead to what Benjamin Alarie refers to as The
legal singularity.22 Alarie describes the process as follows:

The legal singularity will arrive when the accumulation of a massive

amount of data and dramatically improved methods of inference make
legal uncertainty obsolete. The legal singularity contemplates complete
law.

The legal singularity contemplates the elimination of legal uncertainty and the
emergence of a seamless legal order, which is universally accessible in real time.
In the legal singularity, disputes over the legal significance of agreed facts will
be rare. There may be disputes over facts, but, once found, the facts will map
onto clear legal consequences. The law will be functionally complete.23

The making of law will change. Lawmakers will be able to write not just more
complete law but better laws in the form of micro-directives more circumstance-
specific than rules and more precise than standards.24

A world where laws are completely specified represents an enormous shift in the
balance of powers in the legal system. Such laws do not rely on ex post
adjudication of the particular facts. As information becomes more available and
less expensive, litigation will become increasingly rare. Judicial decision-making
will be reserved for cases involving truly novel questions of law or fact.

Improving Access to Justice Legal Expert Systems and the

Online Court
One example of the way in which AI can revolutionise process and the shape of
litigation is in the proposals in England for an Online Court for low value claims.
This Court would be part of the official Court system. Significantly, it is designed
to dispense with lawyers by using automated document assembly tools and AI.

The Online Court proposals are the subject of a separate paper but in brief they
involve the innovative use of technology to develop a new process for litigation
that emphasises pre-hearing conflict resolution and, unlike the present model,
does not see a Court hearing as the inevitable and ultimate outcome of filing a
claim.

What is proposed a fundamental change in the way the court system handles
low value civil claims It will be provided via an Internet based platform. As the
name suggests, all the processes will be performed online.

The idea is a service with a three-tier structure. The first tier is that of online
evaluation, involving a suite of online systems to guide users who think they
may have legal problem and to help them if possible to avoid a dispute.

The second tier applies where a dispute has arisen and involves trained
facilitators working online to review papers and statements from the parties,

22
Bejamin Alarie The Path of the Law: Towards Legal Singularity (2016) 66 U of Toronto LJ 443.
23
Ibid at 445-446.
24
Anthony J Casey and Anthony Niblett Self-driving laws (2016) 66 U of Toronto LJ 429.
using a mix of alternative dispute resolution and advisory techniques to try to
get an agreed settlement.

Only if that fails are judges brought into play at the third tier, for judicial dispute
resolution, deciding suitable cases online, largely on the basis of papers
submitted to them electronically, within a structured system of online pleading
and argument. In a few cases a face to face hearing may take place. That may
be by way of videoconference, teleconference or even in a courtroom. But that
last option is seen as the exception.

Technology and AI systems come into play at the first tier stage. The first tier is
described as case triage. The Online Court web-based software interface would
guide the litigant through an analysis of his or her grievance in such a way as to
produce a document or record capable of being understood both by opponents
and by the court.

Online help would be provided at every stage in the process of completing the
requisite online documents, as well as to providing simple commoditised online
advice as to the bare essentials of the relevant law. Commoditised advice is a
description of the basic legal principles applicable to the litigants dispute, rather
than bespoke advice based up the particular facts of the dispute and would be
provided by Legal Expert Systems software.

At the Online Courts Hackathon in July 2017 jointly sponsored by HM Courts

and the Society for Computers and Law some models of these systems were
developed over a 24 hour period. For example a team from the Australian form
of Gilbert + Tobin developed a system using predictive analytics to help
individuals assess the merits of consumer law disputes. A team from Cambridge
University developed a machine learning system that predicts the outcome of
claims. The tools are capable of being developed.

If a party elects to proceed the electronic file so created from the requisite online
interfaces would be available from the outset to both parties including the issues
involved and the documents relied upon. This is in contrast to the present
system where small claims cases are characterised by an absence of evidence or
coherent bundles of documents until the very day of the trial.

The advantages of this form of triage are that:

a) the parties would be able to communicate to each other the relevant

details of and evidence about their case at the earliest possible stage,
thereby providing a substitute for the pre-action protocols process used
by solicitors in the conduct of most civil litigation.

b) Opportunities would be available for early conciliation, mediation or early

neutral evaluation well in advance of the trial.

c) If the case cannot be resolved at an early stage it could be managed and

made ready for trial with all the necessary information on an electronic
file, making the processes of judicial preparation and determination of
those cases which cannot be settled earlier more efficient.
It has been suggested that there be some sub-stages during the Tier One
process that enable the parties to consider whether there is in fact a dispute that
needs to be resolved. This would recognise the fact that the majority of claims
issued in the civil courts are undisputed. This includes over 90% of bulk claims.
In such cases the court is being resorted to for enforcement rather than for
dispute resolution, so that the full panoply of Tier 1 triage is unnecessary

A possible process model for Tier 1 and it is only a suggestion could be

1. A claim is prepared and filed after the enquiry and advice stage has
been completed. This part of the process may be called a preliminary
commencement.

2. The claim details and supporting documents are examined and

analysed by Legal Expert Systems Software and a response is presented
to the user.

3. Based upon the response the user decides whether to proceed to claim
commencement or abandon the proceedings.

4. If the user chooses to move to claim commencement the claim is

formally commenced - this phase of the proceeding is called formal
commencement.

5. The claim is served upon the other party or parties who may do nothing
or acknowledge the claim in which case judgment may be entered or, if
the claim is disputed, file a preliminary answer.

6. The preliminary answer is examined and analysed by Legal Expert

Systems Software and a response is presented to the user.

7. Based upon the response the user decides whether or not to proceed
with the defence. If the user chooses to do so the preliminary answer may
be withdrawn and the claim may be acknowledged. If the user wishes to
proceed with the defence, the process moves to the filing of a formal
answer or defence.

8. At this stage the entire matter is re-evaluated by Legal Expert Systems

software and the parties are advised about the possible options and
likelihood of success of the claim or defence based on the available
information.

9. In light of this advice the parties may decide to proceed with the claim
or defence or step back and consider options such as settlement or
resolution. Only if both parties consider that the claim should proceed is
Tier 2 engaged.

Litigation Practice
The Online Court proposals are designed to be used by lay litigants. Lawyers
may still be required for more complex claims but it may be that the Online
model will catch on and be extended to higher level litigation.
The brings into play a consideration of whether in the traditional litigation
scenario the provision of legal services will remain the same. Richard Susskind25
suggests it will not. In the same way that office based legal services can be
commoditised, litigation can be decomposed into a number of elements,
meaning that it is not imperative that the same lawyer or team of lawyers
handles the case from inception to outcome.

Susskinds litigation decomposition envisages the following transactional

elements:

- Due diligence
- Legal Research
- Transaction Management
- Negotiation
- Bespoke Drafting
- Document Management
- Legal Advice
- Risk Assessment.26

A number of these tasks may be de-lawyered, offshored or outsourced.27

Work may be sub-contracted or even co-sourced. But what these different
models reveal is that the processes behind litigation can be unbundled and
spread between a number of producers introducing a number of cost variables
that go beyond the tyranny of the time costing of value-based costing models.

The unbundling of legal services may apply to the Online Court. Instead of the
lawyer being engaged to supervise and carry out the conduct of the litigation,
the clients instructions may be limited to the preparation of the claim document
or the development of evidence statements.

Predictive Precedent
AI systems also introduce new alternatives for developing legal services or tools
to provide answers to legal problems. This involves predictive analytics and
intelligence augmentation. Intelligence augmentation reflects a symbiotic
relationship between humans and technology. Humans continue to perform the
task at hand, but they do so interactively with technology in order to do it
better. While AI and intelligence augmentation may be conceptually distinct
there are times when the lines blur.

Understanding the relationship between the facts of a given case and relevant
caselaw is a fundamental aspect of legal analysis. Lawyers first must identify the
relevant facts of the case. Then they have to locate those facts within the
parameters of existing case law. This involves a number of skills identifying
relevant facts and discarding irrelevant ones identifying the area of law that
relates to the problem and then placing the case within the appropriate case law.

25
Richard Susskind Tomorrows Lawyers above n. 14 p. 32 et seq.
26
Ibid at p. 36.
27
These terms and other concept involving different work models for litigation are dealt with in Susskind ibid
Ch 4 especially at p. 36 -41.
And if this were not enough, the common law is dynamic, evolving and, in some
cases, quite rapidly.

We are familiar with the blunt force tools behind LexisNexis or Westlaw which
are based primarily on keyword searches. The problem is that once the
authorities have been located the lawyer still has to read them to determine
relevance and applicability.

Enter the Application Programming Interface (API). Given a question and a set of
fact an API may use machine learning to undertake textual analysis, analyse the
relevant sources and provide an answer of a probabilistic nature. For example,
an API can answer whether a worker is an independent contractor or an
employer. This classification is central across several areas of law for example,
employment, tort, tax, and even criminal law.

What the API does is to elicit all of the relevant facts; situate it within the
corpus of all relevant materials; determine whether the individual is more likely
an employee or independent contract; and point specifically to the passages that
support this finding.

This is still a developing form of technology. Once it is fully developed and

matured it will add layers of comprehensiveness, transparency and speed to
legal analysis. This will assist lawyers to advise and represent their clients.
Presently a lawyer answering any legal question must identify all of the relevant
material. This is a daunting task, particularly in constantly evolving
areas of law where there are certain risk factors not the least of which is that of
overlooking authoritative or persuasive references. The API could access the
entire universe of relevant materials for each question.

Transparency is another benefit. Lawyers differ from one another in how they
approach their task. Although law schools teach students to think like lawyers
and although elementary research skills include the development of a research
trail lawyers differ from one another in how they approach legal research, and
their process of doing so is often opaque, not just to the client but also to one
another.

The API eliminates these variables. It generates an answer with supporting

documentation that is systematic and replicable. APIs are also more efficient. At
present lawyers require considerable time to synthesize material reading,
taking notes, and synthesising the authorities. The API can complete this
process from start to finish in a matter of minutes, or often seconds, thereby
expediting the time lawyers take to complete a task.28

These predictive technologies for so they are will not be used solely in the
Online Court and inform citizens to the state and scope of the law. They will be
used to change the way that the law is dispensed and it will improve consistency
and justice.

28
This section draws heavily upon Albert H Yoon The post-modern lawyer: technology and the
democratisation of legal representation (2016) 66 U Toronto LJ 456 esp at 466 468.
Predictive technologies can be used to assist in the determination of whether a
person should be granted bail. Currently, a human judge must weigh many
factors, including the seriousness of the alleged crime and whether the
defendant has jumped bail before, and the defendants social and family ties.
Based on the information about this particular defendant, the judge must assess
whether the defendant will answer bail. The decisions of human judges have
been shown to be inconsistent across different judges and may even be infused
with subconscious bias.

Improvements can take place by using analytics of big data and machine-
learning technology. There is a large set of information about how criminal
defendants actually behave once they are granted bail. Yet this information is
not made available to the Judge. Predictive algorithms give a much more
precise and accurate answer as to whether the defendant is likely to answer bail
and adhere to bail conditions. Not only are these algorithms more accurate than
human judges, but they are also more objective, more consistent, and less
prone to bias.

For example, there was a belief almost approaching an article of faith that
electronically monitored bail would ensure adherence to bail conditions.29 No
statistical information was advanced to support this proposition. Coupled with
this is the fact that the generalisation is extraordinarily broad. It does not
recognise a number of variables such as emotional make-up and other statistical
factors which could indicate whether it was more likely than not that the
individual would adhere to electronically monitored bail. The available of big data
together with data analytics may provide a judge with more nuanced and
granular information about the risk factors behind granting bail.

Lest this be thought to be something that is just around the corner it is in fact
here already. The Corrections Department uses an AI tool that provides
information to Judges as to the potential success of one sentencing alternative
over another. Data and specific client based information may reveal that a
certain sentence may be more conducive to rehabilitation and the reintegration
of the offender that another and perhaps more punitively oriented outcome. This
is an example of AI at work.

Twilight of Precedent
The Volume Problem
I mentioned the use of machine learning and predictive analytics as aids to legal
research. However I suggest that the Big Data set that is the law is going to
have an impact upon the doctrine of precedent. In saying this I hasten to
reassure you that I do not see an end to precedent. But, like the practice of law,
it will be different from the way in which precedent has been used.

There are two likely futures. The first is that the principle-based ratio decidendi
model will be replaced with a fact specific approach to precedent. The second is
that the precedential value of a case will be determined by its repeated citation

29
Rogers v Police HC Auckland, CRI-2008-404-002288, 8 August 2008 Fogarty J.
and application a variant of Googles page ranking algorithms for website
relevance and popularity.

I have dealt with the first option in more detail elsewhere.30 In summary the
argument is this. The technology of print was a significant agent in providing the
environment in which the reliability of reports of earlier cases could be assured.
Print enabled many copies of one text to be distributed throughout a community
or a country. It meant that the mistakes, errors and glosses that had previously
been a characteristic of the scribal culture were no longer perpetuated. It meant
that the words that were printed and read by a person in London were the same
as those read from the same edition by a person in New Orleans. The printed
word could not be changed. Once it was on paper it was immutable. Printing
replaced the brittle oral and script forms of communication with a stable, secure
and lasting medium. Memory, so vital for the oral tradition, could now be
committed to print. Instead of looking for the earliest or original manuscript
that had not received the attention of glossators, one seeking information would
look in the latest print edition.31

The advent of print provided a keystone for the legal process. The development
of the common law by a system of precedent is expedited when lawyers and
Judges have a common reference point and can rely on the fact that there are
exact copies of a case or a statute in different places. Thus, lawyers and Judges
are assured that the language that they are using is identical to the language
consulted by others.

However it wasnt until the nineteenth century that a truly reliable reporting
system developed. The development of law reporting, as we know it, could not
have taken place without print 32 and the history of the doctrine of Judicial
precedent is intimately bound up with the history of law reporting. The
development of print and the development of precedent, a foundation stone of
our common law legal structure, are linked.

By the same token the reliance upon printed texts carried with it certain
limitations. Only a limited number of precedential cases could be reported and
the precedential system depended upon that. 33 There is a certain critical mass of
decisions which, if exceeded, means that the precedent system becomes
unwieldy. The theory of precedent depends, for its ideal operation, on the
existence of a comfortable number of precedents, but not too many.34

In addition there are physical limitations upon the number of cases that can be
reported and collected within the covers of a book of reports and a limitation on
the amount of shelf space in libraries to accommodate reports.

The digital paradigm has turned that model on its head. Reports of cases are
now contained in enormous free-to-air databases such as those developed by

30
David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford 2017)
espe at Chapter 6.
31
For a detailed study see David J Harvey The Law Emprynted and Englysshed (Hart Publishing, Oxford, 2015)
32
T Ellis Lewis, History of Judicial Precedent (1930) 46 Law Quarterly Review 207.
33
William Holdsworth Some Lessons From Our Legal History (Macmillan, New York 1928) page 19.
34
Grant Gilmore Legal Realism: Its Cause and Cure (1961) 70 Yale Law Journal 1037.
the Australasian Legal Information Institute35 and its associates including the
British and Irish Legal Information Institute36 and the New Zealand Legal
Information Institute37. In addition there are the value added digital caselaw
repositories of Westlaw and LexisNexis.

The Internet has made more legal information available to more people more
immediately than at any other time in human history. Although this fulfils the
philosophical and societal ideals of bringing law to the people and providing for a
fully informed populace, the implications for informational reliability and for
precedent are substantial.

Internet availability of judgements at a number of levels means that decisions

are accessible everywhere, cross-jurisdictionally. The prohibitions on the citation
of unpublished opinions in the United States may well crumble in the face this
technological revolution38.

It is clear that the increased availability of and access to judicial

pronouncements and the number of opinions and judgements that are available
in addition to traditional hard copy reported decisions has serious ramifications
both for the precedential value of those decisions, and indeed for the concept of
precedent itself. There is no doubt that the law is unable to resist the tides of
change. The question is: During this transitional period, how may the law
accommodate change and maintain its integrity in providing the rules that
regulate the activities and relationships of citizens within the community? The
law traditionally looks back to precedent but the digital environment means that
the depth of field is shorter, focussed upon what is closer while infinity becomes
a blur. The problem is with the vast amount of material that is available, how
can one maintain a precedent-based system that will rely upon dynamic
changing material rather than the reliability provided by the printed law report.

In addition, an overly large volume of decisions may mean that cases become
determined not on a carefully refined and developed legal principle, but on
factual similarities. The authority of precedent in the past has depended upon
the fact that the legal process does not rapidly modify reported decisions.39

In the new world of Big Data legal information and the ever increasing
abundance of case law online there will still be precedents. Rules and principles
will be stated. Guidelines will be given. Issues of law will be resolved and those
cases will be reported. Paul McGrath suggests40 that the role of those
precedents and reports will be less cardinal and their authority less binding. He
attributes this to the absence of full adversarial argument by expert lawyers with
tools and training to cite all the relevant preceding cases. But my view is that in
addition to that and perhaps more importantly the sheer volume of preceding

35
www.austlii.edu.au
36
www.bailii.org
37
www.nzlii.org
38
For a discussion of the US practice of citation see below and FN 41
39
Ethan Katsh The Electronic Media and the Transformation of Law (New York Oxford University Press 1989)
40
Paul McGrath The end of the road for the common law ICLR Blog Posted on 30th Apr 2014 in Law
Reporting at http://www.iclr.co.uk/end-road-common-law/ (last accessed 19 June 2016).
cases will be overwhelming unless of course Judges use data analytical tools to
separate the legal wheat from the chaff.

In some respects the problem has been addressed in the United States by
separating cases that may have some precedential use from those that do not.41
A number of rules surround the ability of lawyers to cite cases as an authority
for a proposition in United States courts.

There may be a way where the technology itself may provide an answer a
technological solution to the problems that digital qualities pose. This may be
termed the Charles Clark solution deriving from his oft-quoted solution to
challenges to intellectual property in the Digital Paradigm the answer to the
machine is in the machine.42

Artificial intelligence may be the path to follow. This has been discussed by
Richard Susskind as a means by which process facilitation may be achieved in
On-line Courts.43 Putting the matter very simplistically legal information either in
the form of statutes or case law is data which has meaning when properly
analysed or interpreted. Apart from the difficulties in location of such data, the
analytical process is done by lawyers or other trained professionals.

Already a form of data analysis or AI variant is available in the form of

databases such as LexisNexis, Westlaw or Bailii. Lexis and Westlaw have applied
natural language processing (NLP) techniques to legal research for 10-plus
years. The core NLP algorithms were all published in academic journals long ago
and are readily available. The hard (very hard) work is practical implementation
against good data at scale. Legal research innovators like Fastcase and
RavelLaw44 have done that hard work, and added visualizations to improve the
utility of results.

The usual process involves the construction of a search which, depending upon
the parameters used will return a limited or extensive dataset. It is at that point
that human analysis takes over.

What if the entire corpus of legal information is reduced to a machine readable

dataset. This would be a form of Big Data with a vengeance, but it is a necessary
starting point. The issue then is to:

a) Reduce the dataset to information that is relevant and manageable

41
See Anastasoff v US 223 F 3d 898 (8th Cir 2000). For a discussion of the Anastasoff decision and the rationale
for limiting precedential authority to only published decisions see Thomas R. Lee & Lance S. Lehnhof, The
Anastasoff Case and the Judicial Power to Unpublish Opinions, (2001) 77 Notre Dame L. Rev. 135
42
Charles Clark The Answer to the Machine is in the Machine, in: P. Bernt Hugenholtz (ed.), The Future of
copyright in a digital environment : proceedings of the Royal Academy Colloquium organized by the Royal
Netherlands Academy of Sciences (KNAW) and the Institute for Information Law ; (Amsterdam, 6-7 July 1995),
(Kluwer Law International, The Hague, 1996).
43
Richard Susskind Online Dispute Resolution https://www.judiciary.gov.uk/wp-
content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf (last accessed 19 June 2016).
44
For a discussion of RavelLaw see below.
 b) Deploy tools that would measure the returned results against the facts or
a particular case to predict a likely outcome.

Part (a) is relatively straight forward. There are a number of methodologies and
software tools that are deployed in the e-Disclosure space that perform this
function. Technology-assisted review (TAR, or predictive coding) uses natural
language and machine learning techniques against the gigantic data sets of e-
discovery. TAR has been proven to be faster, better, cheaper and much more
consistent than human-powered review (HPR). It is assisted review, in two
senses. First, the technology needs to be assisted; it needs to be trained by
senior lawyers very knowledgeable about the case. Second, the lawyers are
assisted by the technology, and the careful statistical thinking that must be done
to use it wisely. Thus, lawyers are not replaced, though they will be fewer in
number. TAR is the success story of machine learning in the law. It would be
even bigger but for the slow pace of adoption by both lawyers and their clients.45

Part (b) would require the development of the necessary algorithms that could
undertake the comparative and predictive analysis, together with a form of
probability analysis to generate an outcome that would be useful and
informative. There are already variants at work now in the field of what is known
as Outcome Prediction utilising cognitive technologies.

There are a number of examples of legal analytics tools. Lex Machina46, having
developed aset of intellectual property (IP) case data, uses data mining and
predictive analytics techniques to forecast outcomes of IP litigation. Recently, it
has extended the range of data it is mining to include court dockets, enabling
new forms of insight and prediction. LexPredict47 developed systems to predict
the outcome of Supreme Court cases, at accuracy levels which challenge
experienced Supreme Court practitioners. Premonition48 uses data mining,
analytics and other AI techniques to expose, for the first time ever, which
lawyers win the most before which Judge.

This proposal, of course, immediately raises issues of whether or not we are

approaching the situation where we have decision by machine. As I envisage the
deployment of AI systems, the analytical process would be seen as a part of the
research that precedes the final decision making process. The advantages of the
AI in the analytical is the manner in which the information is reduced to a
relevant dataset performed automatically and faster than could be achieved by
human means. Thus the analytical process could be seen as facilitative rather
than determinative. If the case reached the decision making process it would, of
course. A Judge, utilising the Law as Data approach would of course, have the

45
Michael Mills Artificial Intelligence in Law: The State of the Play 2016 (part 2) 23 February 2016 Thomson
Reuters Legal Executive Institute http://legalexecutiveinstitute.com/artificial-intelligence-in-law-the-state-of-
play-2016-part-2/ (last accessed 19 June 2016).
46
https://lexmachina.com/ (last accessed 19 June 2016).
47
http://lexpredict.com/ (last accessed 19 June 2016).
48
http://premonition.ai/ (last accessed 19 June 2016).
ultimate sign-off. In that way the decision would still be a human one, albeit
machine assisted.

But what if the machine does not provide an answer and digital qualities do force
a re-assessment of precedent as a result of the challenges posed by the qualities
of digital information systems? What shape will precedent and the common law
then take? Will the detailed principles developed by precedent become a series
of broadly stated principles rather than the refined an intricate intermeshing of
decisions that exists at present? Will the common law as we understand it wither
or perhaps be replaced by a rule-based system similar to that of some European
countries? Given the suggestion that print sources incline one towards legal
principles while keyword searches are more apt to generate groups of cases
based upon similarities of fact49 will litigants, frustrated by lack of clarity,
consistency and predictability of outcome where judges rely only upon fact
specific outcomes, turn to arbitrators and mediators who are quicker, cheaper
and less troubled by the procedural arcana of a Court, or will the adversarial
system be replaced by an inquisitorial one?

Page Ranking Precedent

Will frequent citation determine the validity and give added authority to a case?
Within the world of predictive analytics there is every possibility that certain
cases will appear more frequently as authorities in a particular field than others.
Will this be a form of digital fallout that will overcome or mitigate the volume
challenges that I have discussed. And given that possible outcome is there a
likelihood that predictive analytics software will develop a form of ranking for
authorities depending upon the number of times that they are cited.

The graphical interface that has been developed by Ravel Law suggests that this
is a possibility which, at the same time, might detect rogue decisions that are
of little or no precedential value or just plainly wrong.50

49
F Allan Hanson From Key Numbers to Key Words: How Automation Has Transformed the Law (2002) 94
Law Libr J 563 at 583.
50
For a discussion of the graphical interface project by Ravel Law see Q&A with Daniel Lewis of Ravel Law
NCSC Court Technology Bulletin 29 March 2013 https://courttechbulletin.blogspot.co.nz/2013/03/q-with-
daniel-lewis-of-ravel-law.html (last accessed 9 July 2017).
Graphical interfaces are new to law although they are used in a number of other
disciplines. What the Ravel model is designed to do is to ensure that authorities
are not overlooked and that patterns and trends from the cases can be
recognised. The Ravel system has continued to develop as a result of feedback
from users.

Ravels Daniel Lewis sees this form of AI as an aid to lawyers.

Our goal is not to replace lawyers with technology, but rather to build
tools that help lawyers do their jobs more effectively and thoroughly; its
about providing the right technology at the right moment, so that lawyers
can spend less time on basic research and more time on synthesis,
writing, and argument crafting51

What then of page ranking. PageRank is an algorithm developed by Google and

used to rank websites in Google search engine results. It works by counting the
number and quality of links to a page to determine a rough estimate of how
important the website is. The underlying assumption is that more important
websites are likely to receive more links from other websites.

It is not the only algorithm used by Google to order search engine results but is
the first that was used by the company and perhaps it is the best known. The
following diagram and explanation explain the principle.

51
Ibid.
Mathematical PageRanks for a simple network, expressed as percentages Page C has a higher PageRank
than Page E, even though there are fewer links to C; the one link to C comes from an important page and
hence is of high value. If web surfers who start on a random page have an 85% likelihood of choosing a
random link from the page they are currently visiting, and a 15% likelihood of jumping to a page chosen at
random from the entire web, they will reach Page E 8.1% of the time. (The 15% likelihood of jumping to an
arbitrary page corresponds to a damping factor of 85%.) Without damping, all web surfers would eventually
end up on Pages A, B, or C, and all other pages would have PageRank zero. In the presence of damping,
Page A effectively links to all pages in the web, even though it has no outgoing links of its own.52

The issue of PageRanking and its use and validity was considered in a paper
written for the Stanford Network Analysis Project.53 It recognised that there was
no current definitive measure of a legally influential case other than citation
count. However, the paper concluded that simple PageRank is inadequate in
accounting for the temporally significant nature of case law. The dataset was of
US Supreme Court cases only and cross-citation by that Court. a more nuanced
model was developed that might include citations by lower Courts, and, using
that data, undertaking predictive analysis to determine how influential that case
may be in the future. But there is one feature that is common and that
underpins the PageRank model and that is the extent of cross-citation. Although
this information is currently available in a somewhat complex manner via
LexisNexis and WestLaw, the combination of citation frequency and predictive
analytics could well have an impact upon the use of a case for precedential
value.

Conclusion
In this paper I have covered a large area. I have discussed the nature of
Artificial Intelligence and the impact that it may have upon the practice of law by
locating AI tools such as Legal Expert Systems and Machine Learning within legal

52
Source PageRank Wikipedia https://en.wikipedia.org/wiki/PageRank (last accessed 9 July 2017).
53
Parikh, Ravi, Tang, George and Poppen, Keegan Modeling the Influence of Legal Opinions Stanford
Network Analysis Project Social and Information Network Analysis Autumn 2010 Class Projects
http://snap.stanford.edu/class/cs224w-2010/proj2010/18_final_report.pdf (last accessed 9 July 2017).
practice. I agree with Richard Susskinds assertions that the practice of law will
change from its tradition bespoke all-encompassing model to another form
where lawyers will still be required, but what they do and how they do it will
change. Two possible outcomes will be the unbundling of legal services and the
commoditisation of legal service suggesting perhaps a collaborative business
model with other professionals.

I have also discussed ways in which AI may impact upon litigation and Court
procedure. Advance as a possible model the Online Court proposals currently
under consideration in England and they various ways in which litigation practice
may change. I discuss the use of predictive analytics as an aid to lawyers and
the judiciary to develop more empirically based machine aided outcomes for
decision make and advance the use of APIs as possible tools for the future.

Finally I discuss the impact of technology upon the hallowed doctrine of

precedent and suggest that, like legal practice, precedent may remain but it will
operate in a different way. I suggest two technology based possible futures
one where analytics shift the focus from principle to fact specificity as the
guiding principle for determining the authority and applicability of a case to a
certain situation. The second is a citation count approach to determine the
authoritative value of a case. This may well mean that citation rates could, and
PageRank types of algorithm will, mean that we will return to a digital
equilibrium or critical mass, reminiscent of the limitations placed upon the
volume of authorities published imposed by the physical realities of print. In that
respect, as I suggested, the answer to the machine may well lie in the
machine.54

David Harvey LLB; MJur; PhD

Director
New Zealand Centre for ICT Law
September 2017

54
Above n. 42.