“The main business of a lawyer is to take the romance, the mystery, the irony, the ambiguity out of everything he touches.”
— Antonin Scalia
“Imagination is more important than knowledge.”
— Albert Einstein
The Indiana Repertory Theater will soon present a one-act play “The Originalist,” by John Strand, depicting former Supreme Court Justice Antonin Scalia and a contrary law clerk in a battle about what a judge should be. We are all wearily familiar with years of Senate hearings, public disagreement, editorial epistles about “activist” judges, the political leanings of the Supreme Court, and whether to use “litmus tests.” (When Sen. Lindsay Graham asked nominee Elena Kagan where she was during a Christmas Day terrorist attack, she quipped, “Like all Jews, I was probably at a Chinese restaurant.”)
But the larger question we face is what the future of courts should be. We continually see how the legal profession is profoundly affected by technology. Can we imagine a court case without a courtroom or any tangible paper? Many of us can because it already happens. The advent of electronic filing in Indiana and elsewhere has produced a system of online pleadings and orders in which neither judge nor attorney leaves their office (or their home) for most civil matters. But further, some think that we are now able to conduct a trial through the internet from different locations using real-time transcripts and streaming judges. Someone even suggested sensors could be used on remote jurors to monitor heart rates or attentiveness. That would be great reality TV.
Many commentators believe that “law” is becoming an endeavor in which non-law degree professionals and freelance gig attorneys are assuming roles of traditional law firms. Technology greases that gateway. Former Minnesota Supreme Court Chief Justice Eric Magnuson once told the ABA Journal that:
“(T)echnological advances are changing judges’ routines by altering the process by which they get information … and the ways they deal with that information … . Technology is impacting more than the scope of the record. It’s impacting … the ease with which lawyers … present their case … [and] in some ways, creating an issue about some of the fundamental principles that we have followed for centuries.”
As the process of information changes, so do the ways clients deal with lawyers, how law schools train lawyers, and how people and courts interact.
But nothing is more intriguing about the future of courts than artificial intelligence. Sometimes this term suggests how judges feel about counsel who say things like, “Judge, it is what it is.” It actually refers to the development and application of computer programs to perform human tasks, like decision-making, problem-solving, and yes, even telling jokes. The most common example is IBM’s Watson computer, which plays Jeopardy, beats world-class chess players and such. Last year, the London newspaper The Guardian reported a landmark British study in which an AI program was developed that determined court decisions in 467 out of 584 cases (80 percent) that were identical with human judges. Technology can now find broader material in its data, such as whole concepts rather than just keywords, to improve its proficiency. CNBC also reported last year that a leading U.S. law firm was committed to using IBM Watson in its practice because Watson’s language processing capabilities allow it to respond to questions posed by lawyers about specific laws or cases, and it gathers evidence, reads through laws and draws inferences about the material it has collected.
Since when can a robot draw an inference? As this column noted once before, the first dean of Harvard Law School, Christopher Columbus Langdell, argued that law requires inductive, analytical and deductive aspects, so only specialists can know how to use it, write it, enforce it. Judges know that law is ultimately a journey to do the right thing and hopefully following the rules as we go. Can a computer program perform this uniquely human part of “law?” Or is our law only as good, as Justice Scalia suggests, as our technical words — and so AI can perform a useful and efficient function in our system of justice?
Thomson Reuters, the multinational information firm, recently published a study about the future of courts. After consideration of big data, online services, e-filing, e-discovery and the like, its conclusion centered on this:
“[T]he most important factor for the future development of the courts is … the people who work in the courts: judges …magistrates … courtroom staff … they need the courage and strength not only to defend the essential elements of their role in the community, but also to imagine a clear vision of how that role will evolve in the future to marry the best of IT-enabled services with justice … .”
As long as we do not lose sight of that, we will still be an endeavor of human beings, which is the most original text of all.•
• Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.