AI in the practice of law

After an unrepresented Macquarie University academic won a landmark Fair Work Commission case using AI rather than a lawyer, Matt Ward gives his take on what advanced AI tools mean for access to justice, the risk of self-represented litigants relying on hallucinated or misapplied case law, and why he doesn’t see AI replacing the human judgment juries, judges and advocates bring to criminal law.

Interviewer: Well, if you’ve ever used a lawyer, you will know that there are two things that come out of it. One is that the law is complicated and has a long history of precedent that has to be quoted to various judges to help them make their decision. And the other is that it’s really expensive. Well, at least one person has started using artificial intelligence to win what’s been called a landmark Fair Work Commission case. Now, this is something that we’ve covered quite a bit at the University of Wollongong, the history of casual employment in academia for tutors and lecturers, with no real ongoing stability. This particular academic at Macquarie wanted to convert his casual employment to part-time permanent. The university objected. He took it to the Fair Work Commission and won without a lawyer, just by putting all of the cases and the case law into an artificial intelligence agent. Now, I should stress that this is not an ordinary guy. He’s actually a computing academic who uses this to do all sorts of things, including designing telescopes and designing lectures. So he’s not your ordinary punter, and he did use a highly advanced, and reasonably expensive, we’re talking $300 a month version of ChatGPT, which you and I overwhelmingly do not use. But what does it mean when this kind of power is going to come to everybody’s phone eventually? Does it put lawyers out of work? And is it going to be AI versus AI in the court? Matt Ward is an awarded lawyer and Principal Solicitor at Morrisons, Criminal and Traffic Law Specialists, and joins us now here at ABC Illawarra. How are you, Matt? How are you going?

Matt Ward: I’m well. How are you?

Interviewer: Are you frightened of the virtual Matt replacing you?

Matt Ward: Not frightened, but excited is my description.

Interviewer: Excited. What are you excited about?

Matt Ward: I think that, like many areas, this will change the nature of both the practice and business of law. I think to think about it as feeling like, or taking, our jobs is understandable, but I think the reality is that in the right way it can make everyone better at their jobs and give greater access to justice for unrepresented people.

Interviewer: Well, that would be ideal, wouldn’t it? So let’s talk about the work behind the scenes. I’ve got several family members in the law, and I know there’s a lot of grunt work that you’d have to give to your paralegals, your law students, your legal practice students. Is that the great opportunity for AI, to take that grunt work away?

Matt Ward: I think there’s the ability for many time-consuming, repetitive and fairly structured tasks to be completed, or partially done, by artificial intelligence. I don’t think, while that might have an impact of course on some roles and some jobs, that’s a bad thing overall. I think it will then allow those people in those roles to do more valuable human-based work that will add more value than simply spending the time on these more administration-based tasks.

Interviewer: I know quite a lot of people in the family law system that have been absolutely devastated mostly because the other side has more money. Do you think this gives more access to justice to people, so they don’t have to outspend the next person?

Matt Ward: It does give access to justice, but there are pros and cons at the moment, and of course in the future, of unrepresented persons using artificial intelligence. The pros being the access we’re talking about, the ability to at least get some understanding of process, procedure, the things they need to do, and being more informed, that’s a good thing. But one of the big cons is that it’s very difficult for them to critically review the information they are being given and told, and often that will involve misinformation, some hallucinations, or incorrect advice that can be quite damaging. It also seems to result in, particularly by unrepresented persons, the provision of very lengthy documents or written submissions to a court that are generated by, or largely based on, artificial intelligence, which makes the court process more challenging for decision makers, and often isn’t something that will assist the court or assist their cause in the manner in which it’s presented.

Interviewer: Is there a danger that people will come to you, much like people come to their GP after consulting Dr Google, that they’ll come to you with some knowledge they think they have, and that’s a waste of your time?

Matt Ward: Oh, the reality is that’s already happening. I have multiple scenarios where that has occurred, and I don’t have any issue with people doing that. In fact, I think it’s good for them to, perhaps not question, but get a real understanding that the person advising them has a level of expertise over and above artificial intelligence and can identify for them: this is correct, this is not correct, this is how this would work, this is how that may work. I think that’s something we’ll see more and more of, and it’s already happening.

Interviewer: One of the implications of this story is that a lot of people are self-representing and going to places like Fair Work, and they’re overwhelming the court with an enormous amount of documents which, as you say, are generated by AI. How do we solve that, with judges having to read all of this?

Matt Ward: There was a study done on this, and they found across the world, of all the cases that involve a significant amount of artificial intelligence, or cases on the use of it, about 78% of those cases were by unrepresented persons. I think we’ll see more and more of this. There will have to be further rules, regulations and governance around how this can be presented and what can be used. That’s already been done by the Supreme Court in New South Wales for solicitors, but the next challenge, I think, is providing some frameworks for unrepresented persons in how they present, and the limits at which they present things. But that has its challenges.

Interviewer: Where is the role for the human lawyer, barrister, solicitor? Is it just to sort of mediate people’s stress at these times?

Matt Ward: I think there will always be a role for a human when we’re dealing with human problems and human decision makers. For example, in criminal law, in more serious cases, twelve members of the public on a jury decide whether a person is guilty or not guilty. That’s an inherently human process, involving the community and human judgment, not just for that decision but everything from listening to a witness, getting an instinct as to whether they’re telling the truth, whether certain things happened or didn’t happen. That’s a human process, and people say, well, that can be more accurately done by artificial intelligence. I don’t think that’s the case. As long as the law has human decision makers, it will require human judgment, and the best thing to do that is a person, and that’s the best way, in my view, that it will move forward. There will undoubtedly be other areas where this will significantly impact the nature of the work, but I think it will depend on how much human interaction is required and is part of that process.

Interviewer: And I suppose that calls for a human advocate to put that argument to those twelve humans in the jury box, as well as the human judge, the human magistrate.

Matt Ward: Exactly, and the same for sentencing. If someone is to be punished or sentenced, I think society would want a human being to impose the law on that other person. Now, there are obviously pros and cons of that, but in my view that’s how it will continue. Humans understand humans, and the intricacies of behaviour, engagement, advocacy and language. That’s why, in my view, criminal law will continue to operate that way and involve human beings.

Interviewer: Matt, always good to talk to you, mate. Thanks very much.

Matt Ward: Thank you.

Interviewer: Matt Ward, Principal Solicitor at Morrisons, Criminal and Traffic Law Specialists here in Wollongong.

Transcript lightly edited for readability (false starts, crosstalk removed).