Artificial Intelligence (AI), Evolution and Something Darwin Never Said

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Attorneys are, if you ponder the point for a second, the ultimate knowledge workers. Law has always been about managing information, beginning with research, progressing through communication and concluding with a deal or a settlement. Information is the raw material that lawyers move around, work with and shape.

Given this, it’s no surprise that technology has had an immense impact on the legal profession. Every aspect of the practice of law, from how clients are kept informed to how cases are argued in a courtroom, has been profoundly shaped by the intersection of technology and information. And as the tech gets more sophisticated and powerful, the impact becomes progressively greater. To borrow a phrase from Mr. Darwin, as technology evolves, so does its effect.

Which is not to say that law, as an industry, has wholeheartedly embraced technology, or that the road to adoption has been smooth, straight and swift. Along with being all about information, law is also all about precedent, stability and human beings who have an enormous investment in the status quo. As inevitable as technological change may seem in hindsight, many of the innovations we now take for granted were initially adopted grudgingly and, sometimes, only because clients insisted.

For an embarrassingly long time, after the introduction of the IBM PC in 1981, the first personal computer, there were still lawyers who printed out emails and read them on sheets of paper. Or who had no idea how to type or use a fax machine. But to paraphrase an old legal maxim, “Although the wheels of technology grind slowly, they grind exceedingly fine.” Progress does not stop and, one by one, innovations – local area networks, the Internet in 1994, social media, artificial intelligence – entered the world of law. And the pace has accelerated – a decade ago, there was no such thing as a legal tech startup. Now there are hundreds. For new associates, particularly in large firms, facility with technology is now assumed.

And all of this use of and dependence upon technology was only accelerated by the COVID-19 pandemic and the resulting scenario of millions of attorneys and administrative staff working remotely. In a matter of a couple of weeks, the whole concept of a law firm as a place you went to practice law dissolved. Instead, firms became the opposite – disconnected teams of attorneys, some of whom had never met, who were able to work, bill and market without ever meeting face to face. All of this was enabled by – you guessed it – technology. From the fiber-optic cable that carried data at the speed of light to Zoom, to document management systems, it turned out that the modern law firm was so information driven that it could operate without an office. It just needed information.

But as powerful and transformative as the technology law firms relied on was, there was always one limiting factor – computers couldn’t think. The most sophisticated, powerful information technologies imaginable could only do what they were programmed to by a human being. Conventional IT is ultimately an enormous set of commands that are executed with lightning speed and, as the old acronym “GIGO – garbage in, garbage out” reminds us, the commands can ultimately only follow instructions. And bad instructions, whether due to ignorance, haste or sheer bad luck, lead to worthless results. A fax machine with one wrong digit in a phone number was, for instance, useless until the mistake was fixed. Despite all the power and speed technology gave lawyers and firms, technology had no ability to change, adapt, learn or think. That was exclusively limited to human beings.

Until AI – artificial intelligence – arrived.

With the advent of this new form of technology, everything really did change. Because, for the first time, technology applications were able to do more than follow instructions. They could think, learn and improve, all without the direct involvement of a human being.

Like most discussions, it’s easy for any talk about AI to get lost in semantics and details. The boundary between “artificial intelligence” and, say, “machine learning,” is porous and constantly moving. It’s easy to get into endless debates about what is technically AI and what isn’t. But for the purposes of this blog, none of this is especially relevant. What is relevant is that AI is a kind of computer technology in which, rather than rigidly following a set of instructions, the system can learn, adapt, look for (and find) patterns – and improve over time. In other words, it can learn.

For instance, a branch of AI is known as “NLP” for “Natural Language Processing.” This technology involves deducing the meaning of words – think of Siri here, or Alexa – based on the context in which they’re used. If a sentence refers to a slow racehorse as a “dog” NLP can teach itself that a “dog” is both a kind of animal and a slang term for a slow horse. Another use of AI in law is litigation analytics and prediction. Based on the compilation of certain factors in a case, AI can develop correlations and, ultimately, rules that help humans predict how a case will turn out. AI can, as a third example, power legal research by searching case law based on fact patterns rather than keywords, and, in so doing, identify patterns conventional research doesn’t.

Accomplishing all this takes a combination of large amounts of data, serious computing power and innovative programming. Reduced to a few necessarily simple sentences, the basic idea is that AI is adaptive – it is engineered to take in data, evaluate it and then automatically adjust its programming to move toward the goal. Like a human being, it can change and adjust based on its environment and, in so doing, bring a form of reasoning to its work. If, for example, an AI system is tasked with reviewing emails and flagging those likely to be to or from someone committing sexual harassment, over time, it will independently develop an ever richer and ever-more-accurate understanding of what to look for. It gets smarter, in other words. It adapts.

Charles Darwin is commonly misquoted as having said, “It is not the most intellectual of the species that survives; it is not the strongest that survives; but the species that survives is the one that is able best to adapt and adjust to the changing environment in which it finds itself.” Did Darwin actually say this? No. But it’s a great quote anyway, and a perfect description of why, in law, not only is AI not going anywhere, but is thriving.

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