Dr Rónán Kennedy and colleagues summarise a recent symposium looking at the state of lawtech in the Irish courts and the wider legal profession.
Many legal practitioners, academics and students are learning about, implementing, and developing a range of technologies for lawyers, judges and courts. These range from well-established and comparatively basic tools like word processors and spreadsheets to supposedly sophisticated and 'artificial intelligence' applications that vendors claim will do away with the need for highly trained and expensive staff, at least for some tasks. The potential power and problems of these new approaches to practice has led to a great deal of excited commentary; this is not always based on a comprehensive empirical understanding of the real extent to which so-called 'lawtech' has been adopted by practitioners and courts services.
Each legal services market is different, and relatively little has been done to survey use in the Irish context. In order to develop a more solid evidence base for recommendations on reform to policy, legal education, and court practice, the School of Law at the University of Galway (with funding from the College of Business, Public Policy and Law) recently convened a workshop in Dublin to gather information on the current state of lawtech in the Irish legal services market and in the courts. Speakers were asked to address the following questions briefly:
The discussion was then opened to everyone present. This article summarises key findings and themes from the day.
Dr Brian Barry of Technological University of Dublin opened the workshop by sharing some preliminary results from a survey conducted of 50 Irish judges regarding their use of technology:
Following this, the initial session focused on technology use in courts. Although law can be a conservative profession and some lawyers pride themselves on being un-technical, the Irish courts have adopted many technologies, such as dictation management platforms, video-conferencing and file sharing tools. It was noted, however, that voice recognition has not worked well for judges. The COVID-19 pandemic accelerated the adoption of technology in the courts, and an informal survey conducted by the Planning, Environmental, and Local Government Bar Association of Ireland found that 100% of barristers would like to continue to use online hearings for routine and administrative matters, while a modest majority wanted them for fuller hearings. Generally, these tools work well, although there are human errors such as file sets not being identical across all participants, email circulation lists omitting the judge hearing a case and, inevitably, microphones being left unmuted or muted at the wrong time during hearings, all of which cause some frustration.
The Courts Service are pressing ahead with modernisation and digitisation projects, including online court application portals, internal case management and electronic filing. It has three main aims: digitise, simplify, and standardise. This should open access to justice to everyone. In the future, the new Chief Information Officer intends to progress initiatives such as e-signatures, artificial intelligence and blockchain tools.
Some barristers are adopting technology where possible, particularly around document management and courtroom document display and some run entirely paperless practices. (There was some discussion of the 'pain that is paper'.) Generic tools like office productivity applications, video-conferencing, voice-recognition and PDF manipulation are in general use. Of software developed specifically for lawyers, legal databases are commonly used, and some use accounting and billing software. There is, however, a demand for case management software that could store all of the data relating to litigation, including document storage, working notes, automated drafting, and billing. However, no such platform exists, and there seems to be little understanding amongst technology providers of the particular needs of barristers.
A technology provider pointed out that the court system is designed for practitioners and not for litigants, and accessing information across different systems can be challenging. However, if the data can be structured, it becomes much easier to work with, and practitioners quickly move from scepticism to enthusiasm. Working with users identified needs, and public bodies are providing better access to data in more structured form (such as the UK National Archives publishing judgments as XML). However, it is not possible to get access to court filings in Ireland, which limits the possibilities.
On the question of whether technology is leading to greater efficiency or to transformation, the view what the efficiency tends to come first, but transformation is occurring, particularly with the convenience and time-saving involved in online hearings. The Courts Service is focused on transformation to increase access to justice as part of its modernisation work, and standardisation is a tenet of this. Court users felt that this could be improved by greater involvement of judges in case management much earlier in the process. There were also concerns that although some litigants will use delay (for example, through excessive discovery) as a tactic and this should be rooted out, it is still necessary to ensure that everyone gets access to justice so this requires careful consideration.
From the perspective of solicitors, many lawyers were using the same basic tools (such as word processors) to handle a workload which has quadrupled over the past 25 years as clients put them under more pressure to meet deadlines. The pandemic forced a step-change, but this is sometimes resisted because individuals are not being given the time to re-train and to adapt. Nonetheless, access to cloud-based tools is leading to transformations, particularly in lifestyles, through the facilitation of remote work and its associated changes in work-life balance. The suggestion was that this could, at least in part, address problems of wellbeing among lawyers, although there was another view that it could lead to an expectation of constant availability, blurring the line between work and rest.
Larger law firms in Ireland are adopting technology where it can make a difference to the task at hand and where it can save money. They are using tools such as e-discovery, artificial intelligence, data visualisation, image labelling, sentiment analysis and automated contract drafting. Some of these tools work quite well; others fail. The technology is not a magic want: one participant noted that the skewed expectations of colleagues often need to be managed, and that tools need to be matched to appropriate tasks.
The experiences of smaller firms seemed quite mixed, with some adopting technological tools as they needed them on a pay-as-you-go basis, as they are not as expensive as they used to be, while others were not. This may be more because of a lack of understanding of the potential and the range of choices than because of cost issues. There also seem to be issues in terms of mindset, lack of collaboration, and poor coordination between lawyers. A suggestion was made that smaller firms in Ireland were being crowded out of the legal market, though the role that technology might be playing in this displacement was not clear and that was countered by the view that technology could 'level the playing field' for smaller firms.
There was a notion that lawyers should (but often do not) understand that they are running a business, as they would be more enthusiastic about adopting technology if they did. Some lawyers were reluctant to learnt o type, and would not accept technology that did not work 100%. Nonetheless, it seemed that most were willing to learn, but enthusiasm could fade if they were not supported. There may be a need for ongoing education in technology.
Nonetheless, clients (who are a key driver in technology choices) expect more: greater efficiency, remote meetings, and rapid responses. This is often provided, and technology can improve quality of service, but runs into bottlenecks in litigation where the end result then has to be printed and manually filed and stamped. There is also a lack of standardisation and a tendency to duplicate documents needlessly.
The legal workplace has become less formal, with more remote working, so there is increased reliance on technology as a risk management tool. Document sharing saves time and money as it is no longer necessary to print or courier paper from place to place. Remote hearings have opened up greater access to justice in some contexts, for example in remote wardship hearings, where many families would have been unable to attend in the past.
Potential barriers to technological investment in the Irish legal services market were discussed. Regulation and the limits imposed on how solicitors' firms and barristers' practices can be structured were identified as a key barrier. Barristers in Ireland still work as sole practitioners and hence have limited options when it comes to investing in technology to manage their practices (though the Law Library does provide technical assistance). The current partnership model in Irish solicitors' firms was also seen as a disincentive to technological investment in the long-term.
Service providers are focused on integration, exposing data between systems, and adjusting software to adapt to existing ways of working. COVID has created change, particularly in the expectation that timeslots for headings can be assigned in advance, but it is not clear that this will remain the case. Mobile first can be a benefit to access to justice as most have access to this type of technology.
In-house lawyers also shared their experiences. They use a wide range of generic software, similar to those mentioned by barristers, along with specialised tools, including case management, electronic signature management, share certificate management and human resources software. On the horizon is more automation (particular for data protection subject access requests), use of the cloud and e-discovery. Integrating files and communication about the files is very important.
These tools bring with them compliance and litigation risks, particular in light of Article 22 of the General Data Protection Regulation (limiting automated decision-making). In-house staff can find it difficult to convince their employer to adopt a particular tool as legal is just one function amongst several, rather than the core of the business. In-house counsel (and presumably most legal professionals) are also time-poor so do not have the time to test all of the tools available. The tools need to be easy to use, co-branded and provide a good representation of the employer.
The theme of efficiency or transformation returned at the end of the workshop, as well as the distinction between incremental and disruptive innovation. Technology was seen as favouring the efficiencies of large firms but not access to justice. A key questions was who invests in this technology, what the barriers to entry in the market are, and where the capital for this comes from? Technology companies may find niche markets take too long to develop for or are too expensive to operate in. There may also be a worsening of the existing "digital divide" in the professions.
The workshop concluded with some brief reflections from similar research in Northern Ireland, provided by Dr Ciarán O'Kelly of Queens University Belfast who is working with Professor John Morison on lawtech in that jurisdiction. He noted that innovation is underway but on a haphazard basis, that the transformation may create more space for building human relationships, and that as lawyers to struggle to insure themselves against digital technology risks, regulation may drive smaller firms out of the market.
Dr Rónán Kennedy, School of Law, National University of Ireland Galway
John Danaher, Senior Lecturer at NUI Galway School of Law
Abdullahi Abdurrahman, a Ph.D. student at the University of Galway