Artificial Intelligence (AI) in the Legal Profession Ross Fishman CLE

© 2019 Ross Fishman
Fishman Marketing
Artificial Intelligence,
Ethics, and
the Future of Law
Ross Fishman
ross@fishmanmarketing.com
fishmanmarketing.com/blog
© 2019 Fishman Marketing, Inc.

SO YOU GO TO YOUR DOCTOR…

© 2019 Ross Fishman© 2019 Ross Fishman
“Doctor, I have a bad cough.”
“60 year-old white male, suburbia,
professional, occasionally has the flu
and once had bronchitis.”
“Probably a cold.”

How often is your doctor correct?
• 30%
• 40%
• 50%
• 60%
• 70%
• 80%
• 90%
• 100%

Experiential vs. Data-Driven Predictions
• Experiential
– In my 20 years’ experience…
– I’ve seen a lot of this and I think…
– People like you tend to…
• Data-Driven
– Look at innumerable variables
– No preconceptions
– No subconscious human bias
– The numbers are what they are

What if your doctor also…
• Analyzed public data, social media
– 250 Facebook posts, 1,000 photos
• And your friends’ and families’
– Blogs, LinkedIn, tweets, Snapchat
– Credit card receipts
• Airlines, Uber, restaurants
– Info from the local/nat’l news, etc.
• Visited daughter in Charleston, SC
– Respiratory outbreak
– Mold caused by Irma flooding

That’s better
• Your doctor PLUS AI is… better
• But do you still need a doctor?
• What if you had online access to input your
symptoms and get the fact-based diagnosis?
– “Best medicine for this is a Z-pack”
– Pick it up at the local pharmacy.

According to the Cleveland Clinic:
• When can't process data, you compensate based on
experiential.
• Less than half of medical diagnoses are fact-based
– Just experiential
– “I think, based upon my experience…”
• They’re guessing.

DATA OVERLOAD

Data overload
• 16 zettabytes (1021) in the world
– In 8 years it’ll grow x10
• 80% is flat, unstructured
– Newspaper text, articles, blogs, Word docs, etc.
• 2.5 quintillion (2.5 x 1018) bytes of data created each day
– 170 newspapers delivered to every person on earth
every day
• “The answer to your question is in the paper”

Data overload
• Day One?
• Day Two?
• Day Ten?
– 1700 papers
• THIS is the challenge

“Doctor, I have a bad cough.”
• Medicine changes fast
• An epidemiologist would need to spend
167 hours per week staying current
– US Government estimate
• They’re not billing hourly

Two doctors
• Even if you could read and synthesize it
• You’d filter it through your experience, biases
• Two doctors, same information
– Different course of treatment
– Different schools, training, experience, personality,
conservative vs. aggressive

WE ALL HAVE BIASES

Humans have biases based on:
– Ethnicity
– Age
– Gender
– Personality
– Ethics
– Beliefs
– Religion
– History
– Demographics
– Experience
– Training
– Education
– Politics
– Birth order
– Socio-economic
– What they see
– What they hear
– What they read

Computers have no biases:
– Ethnicity
– Age
– Gender
– Personality
– Ethics
– Beliefs
– Religion
– History
– Demographics
– Experience
– Training
– Education
– Politics
– Birth order
– Socio-economic
– What they see
– What they hear
– What they read

Future of medicine – IBM’s Watson
• How many variables can a doctor juggle?
– Infinite data points
– Age, health, history, background, ethnicity, height, weight,
travel, family, lifestyle, hobbies, environment, neighbors…
– How many cases can a single doctor treat?
• How much actual experience?
• Knowledge or “gut?”
• Watson juggles ALL of the variables
– It’s all just data
• Output is a percent chance

A WORLD WITH AI

How often are your firm’s lawyers correct?
• “Here’s what you should do….”
– I recommend suing.
– I think you should settle for < $450,000.
– I’m pretty sure we can get that variance.
– We can win the audit.
– Here’s what our patent search showed.
– We’ll win on appeal.
• That’s all “experiential”
– “My gut says…”

Watson re Litigation
• You’re BUSY!
– Massive amount of data
– It’s not possible to keep up
• How much DATA can one lawyer realistically analyze?
– Thousands of relevant cases, precedents, unpublished
opinions, articles, blogs, tweets, appeals, filings?
– Millions of pieces of information?

Watson re Litigation
• How many VARIABLES can a lawyer consider?
– Infinite possible data points
• Clients’ size, location, specific case’s unique facts
– How many similar cases can any lawyer handle?
– Even the experts have a small data set
• Watson will analyze ALL of the variables and give
a range of percentages

One degree of complexity
• Humans rely on one degree of complexity
– Simple characteristics of a case
• Not the multitude of factors that actually affect
how you should think of it
• Humans struggle with complex cognitive challenges

All data is useful
• Law / Drs. / prof’ls extract what they need from the data
– What they want
• In big data you take everything
– Take confluence of factors
– You don't curate in advance
• Don't say “this info / outcome is irrelevant”
– Analyze the broader context
• People can't do it fast enough
– Apply personal filters, biases

How was The Weather?
• Lawyers don’t consider the weather when
got a judgment or settlement
– Sunny days jurors are more inclined to do X?
– Or when jury was sequestered?
– What did jury have for breakfast?
• “After a hot breakfast jurors [do this] 86% more often.”
• Data curation
• Include the superfluous data
– Include everything

Accurate, evidence-based decisions
• “I’ll close, I have the most experience.
– “It’ll take 2.5 hours to walk them through the evidence.”
• “Actually, in trials lasting more than 11 days, when
closing during the summer after lunch, arguments
longer than 27 minutes have a 47% lower chance of
being successful in Cook County, and 68% lower with
this judge when his clerk is Joe (78% lower with Sue).
• “And on cloudy Tuesday afternoons, women 40-47 years
old close 72% more successfully than men.
– 87% more if they’re 5’4 to 5’6, brunette, and lefty.”
– Why? I don’t know. But that’s what the data show.

WHAT DOES THIS MEAN?
Future of Law. IBM’s Watson

What does this mean?
• Business dispute.
– They sue for $5 million. Offer $1 million.
• Input all the data
• AI prediction (in this court with this judge at this time):
– 78% chance of $1.5 - $1.7 million
– 19% chance of $2.0 - $2.5 million
– 3% chance of $2.6 - $5 million
• Why hire litigators?
– Why conduct discovery?

What does this mean?
• Clients can go to Oklahoma, Des Moines (not NYC)
• Lawyer at $250/hour
– Why hire big-firm NYC lawyer at $2,000/hour?

ETHICS AND AI

Attorney-Client Privilege
• Can you have attorney-client privilege between
a client and an AI robot-lawyer?
• Too far away to answer this question
• But what ethical rules do or will apply to AI?

Duty of Competence. ABA Rule 1.1
• Duty of proficiency in the law
• Duty to keep abreast of changes in law and its practice,
– Including risks and benefits re new technology
• Balance between:
– Embracing new technology, and
– Avoiding unnecessarily risky ones
• Risks exist both for early adopters and Luddites.
• Needn’t be an expert on predictive coding, but can’t
ignore it if you have a case with 1,000s of documents

Duty of Supervision. ABA Rules 5.1, 5.3
• Duty to supervise the work of non-lawyers
– Their conduct must comply with lawyer’s obligations
– Historically applied to humans
• What if AI is making decisions or performing work
that is like delivering legal services
– Preparing documents
– Making decisions about w/n to produce documents
• Sounds like it…?

Duty of Supervision. ABA Rules 5.1, 5.3
• AIs can work with much larger data sets than humans
– Can base decisions on complex patterns or algorithms
– We can’t conduct that analysis
• What if we don’t understand the AI’s reasoning?
– Can you meet your ethical obligation?
• How can you supervise something “smarter” than you?

Confidentiality
• AI applications are provided by third-party companies
• AI analysis improves with larger data sets
• May AI companies commingle all of their customers’
data into one database?
• What if they get data from both sides?
– Does it train the system to beat you?

Unauthorized Practice of Law
• Lawyers can’t practice where they’re not licensed
– UPL standards for AI are generally unclear
• AI robot-lawyers may soon deliver legal services
– Are they subject to State Bar licensure requirements?
• Can IBM’s Watson “pass the bar?”
– Should it?

Unauthorized Practice of Law
• Software cannot provide legal advice
• Texas statute ― the practice of law does not
include the “design, creation, publication,
distribution, display or sale of computer software
or similar products”
• Requires disclaimer that they’re not a substitute
for the advice of counsel.

LEGAL RESEARCH

Legal research
• Literal search relies on people to interpret
– Sift through the responses to see what's relevant
– Watson knows what's contextually relevant
– Traditional search can't tell
• Artificial intelligence can
• Enhances and expedites expertise

Legal research
• ROSS Intelligence can sort a billion text documents
per second
• It learns from feedback, gets smarter
• “To put it another way, ROSS and Watson are
learning to understand the law, not just translate
words and syntax into search results.”
• $4 billion annual spend disappears

WHAT DOES THIS MEAN?

The typical reaction
Wow, AI sounds
revolutionary!
But… here’s why it
doesn’t apply to me.
Computers and data
have been around
for decades.
My expertise is what’s
really important.

“My expertise is what’s important.”
• “Really?
• The next time you’re with your doctor, consider which
you want:
1. His “expertise”
• i.e. gut feeling and diagnosis
2. A thorough evidence-based analysis

“30% reduction in outside counsel spend”

Our Reasoning can be replaced
• Reasoning traditionally done by attorneys can be
replaced or supplemented by predictions made by
computers.
• It won’t replace lawyers
• But it’ll replace some of it
• How much…?

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Ross Fishman, JD
CEO, Fishman Marketing, Inc.
Work: +1.847.432.3546
Cell: +1.847.921.7677
ross@fishmanmarketing.com
www.fishmanmarketing.com
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Artificial Intelligence (AI) in the Legal Profession Ross Fishman CLE

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