“For law students, law teachers, lawyers working in solicitor firms or government or in-house roles, litigation lawyers, jurors and judges, AI is not a curse but a blessing,” says former barrister HUGH SELBY. 

More doom and gloom in the law space. Faced with litigation lawyers resorting to AI programs to write their submissions, the court’s response, after shock horror, was to ban the practice.

Woe betide those who disobey.

Judges are better served, so it seems, by a poor piece of legal and factual analysis by a not so bright lawyer, than by the likely better work that their subscription AI program can turn out in a couple of minutes max. 

Last week The Australian newspaper ran an expose of how, even in a top law school, the law students are, en masse, using AI to write their law essays. Read the dreadful detail here. 

Will it be necessary, as that article suggests, to turn the clock back to ye olde mass exams, with serried rows of desks, middle-aged invigilators stalking the aisles, checking in of every electronic device, skin checks for cram notes written on arms, hands and thighs? Seems so.

That’s good news for those of us retirees who want casual work, or it would be if such a response to the use of AI was anything other than daft.

Everyone needs to take a deep breath and dive into the incoming tide of progress. For law students, law teachers, lawyers working in solicitor firms or government or in-house roles, litigation lawyers, jurors and judges, AI is not a curse but a blessing. 

The simplest way to put it is this: it removes so much of the drudgery; it quickly points the lawyer in the right direction; it will give a first draft of action in minutes, if not seconds; and, for law students, it is the path to a legal education worth incurring a debt.

What is good in legal practice is good in those preparing to be lawyers. AI will force a long overdue rethink of lacklustre legal education. It could be the tool that delivers what current legal education promises, but does not deliver: students trained to identify problems accurately, and solve them quickly and, possibly, inexpensively.

Open access information disrupts established power

Information is power, a truism that applies to legal practice as it does to so much else. That said, it might be rejigged as: “Keeping information away from others is power”. Let’s take a walk along progress road.

We take reading and writing for granted. We also take rapid access to information for granted, at least until the laptop or phone battery is flat. Yet there is so much we choose to forget about the history of the technology that made and makes the sharing of information possible. 

Recall how recent in human history is the invention of the printing press, and the revolution it brought to making knowledge widely available. But when the printing press was invented it faced destruction. Religious leaders condemned the new books, which replaced the manual work of scribes, as the devil’s work. The scribes were none too keen to see their livelihoods vanish. See bigthink.com/the-past/printing-press-ai/ 

Recall that the post-war baby boomers began school with inkwells and nibs, that we progressed to loadable fountain pens and to biros. Along the way biros were banned at schools, allegedly because the art of handwriting would be lost.

We forget too the drum copiers that worked with the impressions typed on to stencils (readers born after 1965 should refer to https://en.wikipedia.org/wiki/Mimeograph ), the use of carbon paper for making copies of documents prepared on typewriters, correction fluid and correcting tape.

In the early ’70s I had a casual job in a law school basement printing course notes on drum copiers for law school subjects. The notes didn’t change much, sometimes not at all, from year to year.

One day I found a set of stencilled notes on evidence law prepared a half century before, in 1923. They were far and away the best distillation of evidence principles I have ever seen – and in just a few pages.

Today’s evidence texts, in printed paper, are like a house brick. That’s an odd result because we “simplified” evidence principles in the late ’90s. A surfeit of printed pages does not necessarily mean better explanation and analysis.

Everything changed with stored memory. At the start of the ’80s, unable to afford a secretary, but a good typist from high school days when I was the only boy in the typing school, I bought an electric Olivetti typewriter with a one line memory. In real terms it was much more expensive than today’s laptops. But it saved me precious time.

That was time, hour upon hour, that I needed to spend in law libraries, thumbing through red-bound digests of the law, and going from one library row to another, pulling case reports from one series or another, tracking how the law developed.

Top barristers, on the other hand, employed students to write notes on the pages of their copies of the law reports about whether a decision was still current, cited with approval in a later appellate decision, or relegated to legal history.

That information was power. It was most powerful for those with extraordinary memories not only for an accurate statement of the law, but also for which judge or judges said it best, in what case, on what page. To watch and listen to an advocate or judge with that skill is spellbinding.

For we lesser mortals – that being most of us – information was still power, but we had to hunt it down, mark it up, store it in notebooks, and have the wit to find it when we needed it.

And that is why sharing office space, known as chambers, with the best barristers, was and is so important. To be in the same place as a leader of the legal area in which one hopes to be successful is akin to being handed the key to the door marked success.

Not only can the new barrister walk a few steps to get advice from such leaders, but they can also have access to that leader’s personal library of law reports and precedents.

Unsurprisingly, the sharing of such information beyond the chambers is unlikely. The legal profession is not known for its generosity of spirit.

An unremarked information revolution in the NSW legal system was the publication in 1981 of a book by Nevill and Ashe on Equity Proceedings with Precedents. This book gave every barrister, rather than a lucky few, the chance to run cases in the Equity Division of the NSW Supreme Court.

The power structure of the NSW Bar was disturbed by this excellent book.
Equity judges, and those in the tight coterie of Equity lawyers, suddenly had to deal with new faces.

The power structure of the NSW Bar is being much more disturbed by the rapid, even rampant, advances of AI. This technology is inexpensive, it is quick, it provides useful guidance to the bright and the not so bright, the experienced and the inexperienced. It is the great leveller.

Open access and subscription law information services

Being able, free of charge, and in an instant, to find legislation, regulations, notifiable instruments, decided court and tribunal cases from around Australia and overseas is an amazing advance in this last quarter century. (See, for example, https://austlii.edu.au and https://jade.io/)

To that information then add the search capacity of subscription online services offered by law publishers. Type in a topic and the screen displays both the relevant legal principles and decided cases.

What once took many hours now takes a fraction of the time.

And that’s before the recent coming of AI. 

However, those subscription services are expensive. Many who would benefit from them do not subscribe.

For more than three decades I was an editor of a multi-volume series on the evidence that could be given in Australia by experts across around 75 different areas.

The publisher’s practice was to price the product far above what the typical barrister or litigation solicitor could justify as value for money. That meant that the series had little impact.

AI has the potential to reveal, to anyone astute enough to ask the right questions, information once restricted to the few.

What needs to be taught is rigorous legal thinking

Just as patients can raise with their doctors what they have found on the internet, so the clients of lawyers, using AI, will come to their appointments armed with what they have learned using AI.

This is not to claim that the results of that AI will be correct, only that doctors’ patients and lawyers’ clients will be more demanding of an explanation and a clear path as to what is to be done about the problem.

AI also has a vital part to play in education at all levels, because it can be used to enhance self-directed learning by students with built in evaluation tools. These will determine when the student may go to the next concept that needs to be mastered.

Concepts once mastered must be practiced in a context of simulations that present problems likely to occur in real life as a lawyer.

The industry of online games will find a profitable sideline in bringing to market these simulations, because the student and practitioner players are entertained and rewarded as they learn new skills. 

Just like with online games the playing students can be spread around the country, or the world. One or two simulations for a topic can be used by every student, regardless of their specific university enrolment.

Developing AI will be an important tool in both the design and the content of these learning games. 

The assessment can be built into the games. There are numerous learning programs for children that already do this.

What this means for law schools is that they need to rethink their role. They need to re-imagine the teaching of law so that the connection between principles and real life is embraced and experienced by students throughout the law degree.

Are there some bored law students out there with a passion for gaming and the entrepreneurial flare to upend the old and tired? Oh, I do hope so.

Former barrister Hugh Selby’s free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites