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ChatGPT? , ChatGPT? , Who's the Smartest of Them All?
-- By HoDongChyung - 07 Apr 2023
An Early Application of Legal Tech
Legal technology is not new. Heck, the pencil is arguably legal technology because it was a piece of technology that enabled lawyers to write briefs and judges to pen opinions. Our notion of technology has evolved over time from fires and wheels to rockets and disruptive software. But all aforementioned forms fit the dictionary’s definition of technology, which is the “practical application of knowledge especially in a particular area.” ChatGPT? , a statistical application to generate probably accurate outputs, might feel like a novel form of legal technology but it’s better characterized as a difference in degree. In 1990, judge Robert parker, a federal district court judge in the Eastern District of Texas, used crude statistics to try approximately 3000 lawsuits regarding deaths due to asbestos exposure. This became known as the bellwether trials. In order to try the cases within a reasonable timeframe, he selected 160 cases and then allocated them into five disease categories and then determined the average amount of damages for each category based on the cases allocated to those categories. He then determined that these cases were representative of the rest of the cases and assigned the remaining cases to each of these categories. This was an example of the use of statistics - albeit rudimentary averaging and sampling - to facilitate a legal outcome. ChatGPT? is an invention that is different mostly in degree; it’s built from machine learning, which is a far more advanced form statistics than averaging and sampling.
A Threat Framework for Legal Tech
WestLaw? is also another example of legal technology but it’s not perceived as a threat to the legal profession. When then is legal technology perceived as a threat? While certainly not a comprehensive list, I propose three main factors: exclusivity to the legal profession, the scope of the technology, and the autonomy of the technology.
Exclusivity means how much of that technology is exclusively concerned with the legal profession. For example, a fence is arguably legal technology because it was a means to assert possession claims, a domain in property law. However, a fence is not exclusively concerned with property law. It also serves non-legal practical ends like safety. We, therefore, refrain from attaching the label of legal technology onto the fence.
Scope of the technology means how many areas of the legal profession does the technology touch and with what depth. For example, WestLaw? can assist in a wide range of legal subject matter – intellectual property, criminal law, and even case citation. WestLaw? even provides a synopsis of cases but can’t write briefs or memos. As powerful as WestLaw? is, there are limits to its scope for occupying the legal profession. In addition, WestLaw? requires manual inputs in various stages for it to be a legal tool – a user has to input a search query and a user has to apply search filters.
In other words, WestLaw? is not autonomous. Autonomy, the third threat factor, is the degree in which technology can independently conduct the task at hand. For example, ChatGPT? is unprecedentedly autonomous. It can write an articulate poem with just a few words to direct it. Not only is it autonomous but its scope in the legal field is wide. It can take the LSAT and perform at the 95th percentile and it can write a legal brief with coherence but many inaccuracies. ChatGPT? isn’t exclusively concerned with the legal profession but perhaps that deficiency doesn’t quell the threat much when the technology can still so expansively occupy the legal profession.
ChatGPT? Rings a False Alarm of Fear
I am excited about ChatGPT? ’s impact on the legal profession. There’s a lot of fear behind it but I think the fear betrays the limited confidence we hold of the human mind. As Jaron Lanier remarked, just because a car runs faster than we do, we don’t say it’s a better runner than us. Although artificial intelligence possesses a very different nature than a car, the analogy still holds – just because a machine can produce outcomes faster, more accurately, and more prolifically, that doesn’t make it better than the human mind. A lawyer’s fear for ChatGPT? is proportionate to the low esteem he holds of legal competencies. Human legal competency is comprised of more than the breadth of legal matters or how many legal tasks can be done independently. Success in the legal profession includes understanding people and harnessing emotions productively for representation. The Robinsons of the world battle for their clients, a soulless machine . The legal profession, at its core, is about helping people and machines, axiomatically, cannot do this better than human beings. As Jaron Lanier also noted, “we have to say consciousness is a real thing and there is a mystical interiority to people that’s different from other stuff because if we don’t say people are special, how can we make a society or make technologies that serve people?”
There are other non-threatening ways to perceive ChatGPT? . One way to think about ChatGPT? (or its progeny) is that it’s simply an interdisciplinary tool. As mentioned above, ChatGPT? is really a statistical tool and the legal profession is no stranger to using statistics to aid legal outcomes.
But more pointedly, as Naom Chomsky commented, ChatGPT? runs on human-generated data. It looks to news articles, musical lyrics, and case opinions that were generated by human beings to produce these quasi-human outputs. In other words, AI can approximate us only insofar as we enable it to. If we cease to be creative or intelligent because we become complacent with AI’s seeming ability to replace these faculties, we not only stunt our own growth but starve AI from growing as well.
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