By Zhao Junning and Ng Wei Siang
The 30th edition of the Singapore Law Review Annual Lecture titled ‘The Obsolescent Judge’ was delivered by the Honourable Justice Aedit Abdullah on 16 October 2018. In a move befitting of the 30th edition of the Lecture, Justice Abdullah departed from traditional black letter law topics to discuss technological advances and their impact on the legal profession. The particular focus in his Lecture was their impact on the role of a judge. While Justice Abdullah prefaced that the Lecture would not be definitive as a forecast, the Lecture certainly delivered on his expectations to provoke some thought and discussion among the audience.
Justice Abdullah discussed four main points during his Lecture:
I. Technological disruptions are not something new;
II. Societal responses determine the impact of new technologies;
III. The impact technological developments have on the legal profession;
IV. The future of judging.
I. Technological disruptions are not something new
It is hard to imagine that many of the things that are available to us were once technological innovations that disrupted various professions. Using the example of electrical lighting, Justice Abdullah noted how its advent rendered the profession of lamplighters obsolete. Justice Abdullah further mentioned that just like the lamplighter, various other professions are no longer existent due to technological innovations. Knocker-uppers used to wake workers up. Pin-setters used to assist in resetting pins in bowling alleys. Lighthouse keepers used to maintain lighthouses dutifully. Yet these have all become jobs of yesteryear with the advent of technology.
Justice Abdullah then posed a question to the audience: could the vision of the immutable, distant, and all-knowing judge be sustained in light of technological innovations?
Building on the question posed to the audience, Justice Abdullah observed that much of the structure of the legal system was due to history and tradition. The adoption of English Common Law in Singapore had a huge influence on the many court processes and institutional structures in place, such as the forms that have to be filed, interlocutory judgments, and cross-examinations. Justice Abdullah queried the audience: if one could design a system from scratch, would he or she set it up in the way it currently is?
Justice Abdullah highlighted, inter alia, that several considerations that might be addressed in the future in lieu of technological innovations include:
• Whether asynchronous hearings would be possible;
• Whether parties have to be present in a courtroom;
• Whether lawyers will be needed in all cases.
Many often forget that changes to legal systems are not new. Justice Abdullah gave the example of the writ system in England. Under the writ system, it was essential that a claim was framed in a specific manner and pursued in the correct court. It was only until the courts in England underwent a massive restructuring in the 19th century that the rules were less rigid.
II. Societal responses determine the impact of new technologies
While acknowledging that we are constrained by our history, Justice Abdullah suggested that we are at the cusp of a new era of development in the legal system. Nevertheless, societal acceptance guides technological developments and the impact they have.
Justice Abdullah highlighted four factors that affect the implementation of new technologies: cost, efficiency, access to justice, and autonomy.
With regard to cost, Justice Abdullah gave the example of the Concorde planes that used to fly between London and Singapore. While such technology was innovative for its time, high costs meant that such flights were uneconomical leading to their cessation.
Moving on to the factor of efficiency, Justice Abdullah indicated that efficiency affects whether a technological innovation will be successful. A technological innovation that allows one to save time is more likely to be successful.
As access to justice is an important aim in the legal profession, Justice Abdullah opined that technological innovations that increase access to justice are likely to find acceptance.
Lastly, Justice Abdullah noted that there is a strong desire for personal autonomy in contemporary societies: the modern person wants to be able to make decisions for himself or herself. The learned judge shared that he would check his symptoms on the internet before going to the doctor. The reason for doing so was not cost, but because he wanted to take charge of his own health. Justice Abdullah observed that there is a similar trend in the legal profession. Litigants-in-Person have demonstrated an increased willingness to file their own claims and affidavits.
These four societal factors exhibit a degree of pressure on the legal system and determine whether the technology is adopted.
III. The impact technological developments have on the legal profession
Justice Abdullah moved on to provide a quick survey of the various technologies that are in use in legal systems around the globe.
Turning first to the legal technologies present today, the first technology discussed by the learned judge was artificial intelligence: some law firms have adopted technology that helps them to analyse documents, draft contracts, aid in the discovery process, and predict outcomes. Beyond law firms, Justice Abdullah noted that the People’s Republic of China’s legal system has been very open to adopting artificial intelligence with predictive technology for litigants, and adopting technology to help their judges research and find relevant or similar cases. The learned judge further noted that the same could be said for the United States of America, with prediction systems that rival the Chinese in accuracy as well as programmes to help with, inter alia, bail and sentencing. The Americans also rely on artificial intelligence to assist in dispute resolution for online commerce, with programmes suggesting solutions for human controllers.
Justice Abdullah then discussed data mining, which he observed is generally used in conjunction with artificial intelligence to analyse data and provide solutions. The more data available, the higher the likelihood that the programme will provide an appropriate solution.
Lastly, the learned judge gave his views on blockchains. Justice Abdullah considered the possibility that with a trusted system, the need for human verification may be removed in many cases. The system would be able to get a result on its own once the process is initiated.
IV. The future of judging
With such technologies mind, Justice Abdullah considered their impact on the role of judges in the future.
Firstly, Justice Abdullah opined that where parties had something to prove as a matter of principle, they would still want to come to court.
Secondly, the learned judge noted that for commercial cases such as those pertaining to insurance, systems with a high level of predictive accuracy would result in a decrease in litigation. In such cases, the judge would only be required to act as a reviewer of the initial decision where parties are dissatisfied with the outcome the system provides. Additionally, Justice Abdullah noted a category of cases which are largely administrative which artificial intelligence has a greater role to play.
Thirdly, Justice Abdullah suggested that for a category cases where a balancing of various factors is required, the impact of predictive systems may be more limited. Situations mentioned by Justice Abdullah include: forum non conveniens applications; sentencing outcomes; bail applications; and an assessment of damages. As various factors often pull in different directions, finding the right solution is an art and the role judges play is still essential. In Family Law cases, while there are systems that attempt to predict the division of matrimonial property, there is a personal dimension to such cases which a machine may not be suited to deal with. Additionally, Justice Abdullah noted that with regard to sentencing outcomes, most people would not want their liberty to be at the hands of a machine, or even to be assisted by one.
Lastly, Justice Abdullah opined that the area of developing new rules will be closed off to artificial intelligence. While the learned judge noted that it is theoretically not out of the realm of possibility, it would take a long time before humans would be willing to hand over such decisions to machines.
Ultimately, Justice Abdullah suggested that trial judges in particular may have to evolve. A possible scenario is that role of the trial judge may have to be expanded to become more like a counsellor and assist the parties in achieving a lasting solution.
Justice Abdullah emphasised that the point of the lecture was not to predict what the future held, but to suggest that there will be technological disruptions to the legal system. The learned judge noted that no aspect of the legal system is immune from changes, judges included. Justice Abdullah also mentioned that the system of justice is about achieving justice for the individual citizen and it does not owe a living to anyone in the legal profession.
There is little doubt that Justice Abdullah’s message was well-received. The authors spoke to members of the audience at the conclusion of the Lecture during the dinner reception. A member of the audience noted that: “The Lecture was very timely, and it covered big issues. It was a great introduction to the issues covered.” Another attending professional from the technological sector said: “Justice Abdullah knows a lot about legal technology. The topic was relevant and is good to know areas in legal technology that Justice Abdullah considers more promising in the future.”
Justice Abdullah ended the Lecture with a message to the students in the audience. While no one could be certain whether technological disruption to the legal system would ultimately occur, even if the legal system in the future was different, with the right effort, right thinking, and right energy, Justice Abdullah remained optimistic that the legal system would continue to serve the needs of the citizen.
On the subject of technology’s impact on the law, the Singapore Law Review is currently organizing a call for papers on law and technology with the region’s leading specialist in the field, LawTech.Asia. Full-length essay submissions can be made to firstname.lastname@example.org by 29 October 2018, while shorter articles below 2,0000 will be received any time at email@example.com.