Computers and the law: arguments against the rush to IT
COMPUTERS AND THE LAW
A computer is a good servant but a bad master (amended old English idiom).
We are currently experiencing significant pressure by academic lawyers and information technology companies towards the increased computerisation of the English legal system. This rush to IT may be seen as ignoring the reality of everyday legal practice, particularly with reference to vulnerable clients. It can display an astonishing ignorance of human relationships in general and workplace issues in particular. The rush to IT appears to be based on the assumption that clients are computer-literate, that hardware and software function perfectly, that computers have caused them no harm and that the electricity will keep flowing.
The key question in this context is: what is in the best interests of the client?
Of course, it is clearly in the client’s interests to be charged for half an hour’s internet research into relevant statutes and cases, rather than half a day’s hard copy library research. But this is only a very small part of serving the client’s interests.
To take the example of a fairly typical client in a public access employment law practice. The client suffers from work-related stress and perhaps eye and orthopaedic problems caused by excessive work on computers. They complain of having been bullied at work, often by endless strings of emails which have demanded immediate responses. The email can be, in relation to bullying at work, the modern equivalent of the bullwhip. It is generally accepted that lack of control of outside factors is a key factor contributing to stress symptoms. This lack of control over information technology has, in my experience in a number of cases, given rise to mental health issues and physical symptoms resulting from stress.
To suggest that such problems can be solved by recourse to IT is an absurdity and cannot possibly be in the client’s best interests. Computers don’t dry clients’ tears or offer them a cup of tea. The assumption that such clients can be helped by searching for legal solutions on a computer is at best a diversion and at worst an exacerbation. Clients suffering from computer-related employment issues at work need, above all, a human being to talk to.
References to “the bedside manner”, in relation to the desirability of face-to-face communication between lawyers and clients, are patronising and tend to trivialise the importance of human relationships.
Another practical example of the involvement of IT in everyday practice is the issue of legal expenses insurance cover. The key issue in deciding whether cover will be provided for legal expenses is the percentage chance of the claim succeeding. Suppose a machine were to be loaded with information about the facts of the case and the relevant law and procedure, with a view to delivering an opinion on the chances of success, and it came up with less than 50 per cent. That would be the end of the story. But this is merely an opinion. Another machine, or a human lawyer, might well come up with more than 50 per cent. Which opinion is to be preferred?
Or suppose that the first thing a machine needs to know about a client is whether they can afford to go ahead. If they can’t, again, that’s the end of the story. But a human lawyer could approach things from an entirely different perspective. I have acted for a penniless client living abroad and have recovered their unpaid wages. It is fanciful, to say the least, that a computer would do the same. The human element in legal practice involves considerations of strategy and tactics where analysis of legal rules is only part, perhaps a very minor part, of the issue. Unwinnable cases in one opinion can be won according to another.
Another example of the essentially human aspect of legal practice is the consideration of the personalities of individual judges. Judges are human beings and not machines. Any practitioner knows that the personality of the judge is relevant to the way in which a case is presented. This in no way suggests that judges show bias, but it does accept that judges, as people, share normal human inadequacies. This is the reality. Could such personality traits be programmed into machines which analyse legal and procedural issues?
It would be naïve in the extreme to expect Microsoft or Apple to programme machines which analyse legal issues from an alternative, non-money related or personality-centred perspective.
The developing terminology of information technology can be as abstruse and opaque as the worst legal jargon and competes with the most impenetrable statutes in its exclusiveness. This new terminology, based on the steady corruption of the English language, gives credence to allegations of cultural imperialism originating in Silicon Valley: inbox, mouse, app, selfie, url, breadcrumbs, bug, cookie, crash, driver, phishing, shortcut, spam, surfer, worm, blog, tweet … the list goes on and on. This jargon may be used by IT professionals in a similar way to those legal professionals who hide behind opaque terminology. There is also a strong suspicion that many developments in computer technology and vocabulary are all about increased profits for American companies.
The assumption that hardware and software will function perfectly flies in the face of experience. Common breakdowns (malfunction, to use the professional terminology) include: frozen screens, software glitches, crashes, work lost because the wrong button has been pressed, hardware problems, power cuts and viruses. IT is useful so long as the machines work. But very often they don’t. There are many examples of massively expensive IT networks not working – how many times have you been told: sorry, the computers are down today.
Heaven help the client damaged by IT if machines take over the legal system, but no doubt heaven will by then be a Microsoft registered trade mark.
My quill and bottle of ink will still function when the electricity runs out.