How Digital Technology Can Serve a More Humane Justice

04.06.2021 | Laurence Pantin, Gabriela Morales, Sandra Escamilla

Historical, political, economic, social, and technological changes are constantly transforming professions. As some die out, new ones emerge.

For example, when the steam engine was created and railroads began to spread, coachmen were no longer needed, yet engine drivers made their appearance.

Lawyers see a similar pattern. Changes are remaking the legal field, fragmenting tasks and proliferating specialties into several legal professions. In recent years these changes have impacted how citizens can engage with the judicial sector. In this post, we will divide legal professions into two large groups, to understand how technological changes have altered their work and the implications for society:

  1. Those engaged in the legal profession: litigation lawyers; corporate lawyers; private mediators.
  2. Those who operate in the public justice system: judicial officers (judges, clerks, etc.); prosecutors; public defenders; public mediators.

New technology transforms work habits in the legal profession

Technology has changed the way the legal profession works, not just for lawyers’ day-to-day work but also in the results attained for citizens interacting with the justice system. Currently, many tools have been implemented to make work more efficient.

For example, some judicial authorities have developed apps and websites that allow lawyers to file lawsuits or promotions online and review files remotely. The use of videoconferencing platforms has also been authorized to hold hearings. (If you want to learn more about these tools, you can check México Evalúa’s Justicia Ciudadana website and our Guide to good practice on the use of new technologies for the administration of justice). These platforms allow lawyers to save time and resources by reducing the need to go to court to make, for instance, a copy of a file. However, the use of these platforms requires basic computer skills, which can be challenging for some lawyers (just remember the anguish of the now-famous lawyer-cat).

Technology can also change basic strategies in the daily development of lawyers’ work, impacting the quality of judicial outcomes. In the past, a lawyer could learn a lot about a judge’s resolution patterns or a relevant judicial decision by wandering the courthouse’s corridors. Now, lawyers can seek more transparent sources of information. In fact, technologies could also be a way to curb legal malpractice. In Mexico, a common practice is the ex parte hearing, also known as “ear pleading,” which refers to the possibility for a party to hold a meeting with the judge or his clerk, without the other party being present. Even though this is no longer legal in criminal procedures, it is still very common in other legal subject matters. Technological tools can be used to limit these practices.

Likewise, some major legal firms have implemented artificial intelligence-based software. Such AI allows searching and analyzing a vast sum of documents and writing briefs instantly, a task that would take a lot of time for a single person to perform manually. These tools change the way lawyers work on cases and, in the long run, they can reduce the cost of simple legal services. However, this could negatively impact smaller firms, since only large firms have the resources to invest in such technologies.

What about judicial officers?

The tools developed by the judiciary, such as electronic files and videoconference hearings, can change not only lawyers’ but also judicial officers’ work habits. These tools bring several benefits for the institutions and judicial servants alike. For example, they allow telework (which is especially useful during times of crisis, such as Covid-19) and more flexibility for workers, which could lead to greater participation of women in high-level positions, opening the possibility for gender equity. However, the pandemic proved that teleworking has its costs too. It can add stress when a person has to perform legal work while caring for others at home at the same time. Moreover, it tends to lengthen working hours and erase boundaries between work and private life.

Several judicial offices have also implemented administrative management tools that seek to streamline and facilitate the monitoring of judicial officers’ work. For instance, the Mexican state of Querétaro’s State Supreme Court and Chile’s Judiciary developed apps using geolocation for judicial officers in charge of serving notice. This tool designs roadmaps and keeps evidence that they were in the right place.

Another example is the automated management systems of case files. This allows tracking of the intervention of each judicial officer in the process, calculating the work time spent in each case, registering the number of solved cases over a specific period of time, and issuing warnings when a term is about to expire.

Changes are remaking the legal field, fragmenting tasks and proliferating specialties into several legal professions. In recent years these changes have impacted how citizens can engage with the judicial sector.

Finally, other judicial offices have developed AI-based tools to help judges rule, assessing the flight or recidivism risk of a defendant. This could be an advantage since computers exceed judges’ calculation capacity, however there is evidence that judges can be prejudiced or that external factors can influence their decisions. For instance, some studies show that judges tend to make more drastic decisions right before lunchtime due to low blood glucose level or to the number of cases they have tried. Standardized algorithms could create a fair and predictable set of rules to reduce the subjectivity that opens the door to hidden factors on rulings.

However, such algorithms have raised strong criticism. To begin with, they are trained with historical data that can be biased, producing results that tend to perpetuate or amplify those biases. By the same token, algorithms cannot argue their decisions, as judges must do. In fact, most of these algorithms are considered trade secrets developed by private companies and further limit open argumentation. Therefore, it is impossible to know what led to their outcomes. Finally, these tools can reduce a judge’s flexibility when ruling. In some counties in the United States, the law says that a judge must follow the algorithm’s recommendation. If judges decide not to, they have to argue why. This adds an extra layer of work for the judge, which discourages potential challenges to the algorithm.

Estonia intends to take this type of technology to the extreme, as it has announced the development of a robot judge to solve small claim cases. The news raised many expectations and many criticisms because with a tool of this nature, the possibility of demanding accountability from the judge would be nullified; a machine or an algorithm cannot be the subject of an administrative liability procedure.

Are lawyers an endangered species?

Many lawyers, like other workers, fear that technology will make job opportunities disappear. But available data does not show this trend. Historically, the number of lawyers has grown consistently. As Marc Galanter mentions, the number of attorneys usually increases along with economic growth. In other words, the relationship between the automation of processes and the loss of jobs is not unambiguous since the needs are transformed together with the type of lawyers needed. For instance, with the growing use of legal advice apps offering help to solve simple matters without legal representation, it may be possible that, in the long run, fewer lawyers will be necessary, but more mediators will be needed.

Some algorithms based on prediction and automation can speed up the lawsuit processing time, by ordering and processing them, with little intervention from judicial officers. These tools can also analyze a large number of complaints, classify and prioritize them to find patterns to develop predetermined responses. For example, Prometea, a tool developed by the Innovation and Artificial Intelligence Laboratory of the University of Buenos Aires Law School, has shown surprising results. When programmed to detect priority cases in health matters in the Supreme Court of Colombia, out of 2,700 legal actions, Prometea was able to detect 32 priority cases in 2 minutes, which would have represented 96 business days for a human being. Automating some tasks could provide public officers additional time to reduce backlog inside courts and carry out new tasks such as listening or offering emotional support to the parties. Therefore, according to Cevasco, Corvalán, and Le Fevre Cervini, authors of the book Artificial Intelligence and Employment, artificial intelligence has the potential to humanize justice.

What’s next?

A first step could be to rethink the way law is being taught. In Mexico, the growth rate of law schools has been impressive. According to data from the Center of Studies for the Teaching and Learning of Law (CEEAD), in the 1990s there were some 350 law schools in Mexico, while in 2020 there were 2,077 law schools. In 2020 alone, two new law schools were created each week. Yet, the law is still being taught in the same way as it was two or three decades ago. It should no longer be about learning laws by heart, but rather about arguing, reasoning, and adapting. It should involve learning the use of some basic technologies and even coding and programming. In this sense, courts should no longer be perceived as workplaces for lawyers only, as has been the case for ages. It is important to integrate new professions into the courts and other justice system institutions, such as psychologists, programmers, or mediators to create wholistic approaches to providing justice.

In the end, the use of technologies and AI in law is unavoidable, but basic limits are called for. It should not be about computers fully replacing humans in carrying out rulings. Instead, digital technologies should be at the service of a more humane justice.

Laurence Pantin coordinates the Justice Transparency Program at México Evalúa, a think tank that seeks to improve public policies in Mexico. Sandra Escamilla and Gabriela Morales are researchers in this program. The authors thank Pablo García for his help editing this text.