Every day I seem to see a new article about how artificial intelligence (AI) will make most professions, lawyers included, redundant.
I recall reading Richard Susskind’s fascinating bestseller ‘The End of Lawyers’ about 10 years ago. Susskind, a ‘futurist’, was even then predicting the demise of lawyers as computer power continued to expand and lower level legal tasks were better done by machines.
There is absolutely no question in my mind that lower level legal work, like trawling through thousands, or even millions of pages of documents to discover information in large litigation matters can be done far better by machine – as too can production of standard documents that do not require moral or ethical considerations in how they are drafted.
But we seem no closer to the legal profession going the way of horse and cart drivers or buggy whip manufacturers, whose careers all fell off the cliff as soon as the automobile was invented.
In fact, in my experience, the need for actual human lawyers has only increased as AI has become more powerful. This may seem paradoxical – let me explain.
In my field of succession law, I see the robot-produced off-the-shelf online Will as the same sort of document as the mass produced off-the-shelf newsagent Will of the previous generations (still available in some dusty old newsagents if you hunt hard enough).
Both have a value – they each allow a degree of automation and simplification in the Will drafting process and can do it at very low cost.
In the old newsagent Will, it was a very simple pro-forma where you filled in the blanks (almost always unsuccessfully, if the amount of home-made Wills I have seen that cause ungodly disputes is any indication).
In the new online Will, you still fill in the blanks, it’s just that to get there you answer more questions. I am starting to see the results of these new home-made online Wills come through, and they are no better than the old newsagent Wills.
The reason for this is that it is not so much that the questions being asked of the Will maker by AI are wrong, it’s just that the Will maker does not really know the right answer to give. This skews the results, leading to online Wills being produced that simply do not make adequate or proper provision for the beneficiaries. At least the online Wills pass the formal requirements of a Will as set out in the Wills Act (WA) 1970 more often than Newsagent Wills, so there is some benefit.
The flaw in the AI, online Wills is thinking a Will is a document and that it can be written by answering a dozen yes or no (binary) questions and slotting in some names and addresses.
It is a myth that persists, despite the amount of litigation around Wills growing exponentially, year on year and shows no signs of slowing.
The simple truth is that a Will is a very complex document, a living document, that reflects a living thing – a person and their family, its dynamics, its wealth and its inequalities, its debts and its dues. A Will must cover an incredibly broad spectrum of personal things, such as balancing step children against biological children, ex-spouses against new spouses, determining needs for de facto spouses or dependent grandchildren or parents. A Will must protect assets for those who are vulnerable, those bankrupt or in financial difficulty, those suffering addiction, disability, are going through (or likely to) divorce, and must carve up ownership of emotionally sensitive assets like farms, or homes, or getting loans repaid, or forgiving loans, or recalibrating control of family trusts or dealing with life insurance and superannuation and a thousand other things besides.
Estate planning is still a human endeavour. It is malleable, and flexible and there is simply no black and white. Each and every Will I draft is different because each and every Will maker is a different human with different needs – which needs change over time as well.
The flaw in the AI Will model is that it is not able to interpret these sometimes incredibly subtle differences which can have critical impact on the final result.
What the algorithm can’t wrestle with are the ethical and moral issues of how an estate is carved up by a Will; ethical and moral considerations (which are the bedrock of a proper Will) are never merely binary.
So, whilst I welcome the rise of the machines in making life smarter and easier for all of us, there is still quite some way to go before they will be able to provide value in complex spaces like estate planning and litigation.