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What About Algorithms?

Joe Custer

any attorneys have viewed should be? By analogy take the legal intern Ravel, and Westlaw. Research assistants
augmented intelligence who is performing legal research. A lawyer submitted identical searches in the same
platforms, a.k.a. artificial would not blindly rely on the intern’s findings jurisdictional databases of all six platforms
intelligence, as potentially to provide client advice. Likewise, should filtering by the same date restrictors and
Mpowerful partners that will the lawyer rely on the work product from chronology of reporters (official or unofficial
enhance their ability to tame the information an AI platform, incapable of conducting the reporters, mattering on the database). There
torrent ascending upon them daily. ROSS, complex legal and factual analysis of a State was virtually no overlap in the top 10 cases
sparked by the creation of Watson, the system of Ohio admitted lawyer, in providing advice listed amongst the six databases, the top
that beat Ken Jennings at Jeopardy, is deemed to a client? Ideally, the lawyer is taking the results that lawyers were growing up on with
by many to have the ability to sift through over a results of an AI search as a good starting point Google searches. Of the total results, only 7%
billion legal text documents per second and then to conduct her advanced research applying of the cases appeared in all of the databases.
present the user with the specific relevant passage her independent judgment and perhaps An astonishing 40% of the cases each database
needed from a simple natural language query. considering other nonlegal factors such as returned were unique to that database.
The addition of many artificial intelligence morals, economics, and politics to supply her These findings make it clear that the
platforms over the last five years (i.e., Ravel, client with professional legal advice. algorithms very significantly. Professor Mart
Casetext, Lex Machina, and Fastcase Bad The way AI works is nothing new. has been an advocate leading others to demand
Law Bot) to those already on the market for Algorithms power AI. An algorithm, algorithm accountability and transparency.
years (i.e., Westlaw, Lexis, and Bloomberg according to Merriam Webster, “is a procedure Without algorithm transparency and an ability
Law) gives attorneys the perception that they for solving a mathematical problem in a finite to monitor operations, there is no means of
are missing out unless they are using the number of steps that frequently involves rebuttal or method of holding algorithms
latest in augmented intelligence platforms. repetition of an operation.” The steps are accountable. Using unknown, black box
Rather than taking on blind faith any clause human-created, creating the algorithms that algorithms is a serious matter in law where
spewed out by an AI platform, lawyers need help the machine learn and the data that feeds machine learning could potentially have the
to understand that the results the platform the algorithms generate the results. With most crucial ability to result in detrimental
is supplying don’t come out of thin air. The young lawyers entering the profession who effects on society.
platforms, built upon proprietary algorithms, have relied upon Google searches throughout In conclusion, the use of augmented
by analogy, are like the Coca-Cola recipe. A their education (unless they took advanced intelligence platforms to conduct legal research
secret formula placed in a vault in the World legal research in law school), without vetting should be regulated. Algorithm transparency
of Coca-Cola that on the 125th anniversary the results without considering the possible should be required. Legal outcomes, by nature,
of the cola in 2011 was transferred from its pitfalls such a machine learning bias, it is are sensitive decisions. If lawyers do not have a
previous location housed at the SunTrust essential that more experienced lawyers take clear understanding of how a particular result
Bank in downtown Atlanta since 1925. the time to discuss these issues. or case hypothesis is determined, it is difficult
The secret formulas, similar to algorithms, One recent study by University of Colorado to state that the lawyer’s fiduciary duty to the
are put together by people. People who are Professor of Law and Law Library Director, client was fulfilled.
attempting to create extensive algorithms Susan Nevelow Mart, called Results May
that are the most effective in providing Vary in Legal Research Databases, ABA
personalized legal guidance. If lawyers rely Journal, March 10, 2018, empirically tests the Joseph A. Custer, Associate Professor of Law
blindly on the answers from an AI platform, algorithms of six different legal research AI & Director, Judge Ben C. Green Law Library.
can they argue that the legal advice given to platforms to determine whether the results are Professor Custer teaches Advanced Legal Research
the client is their own? similar when the same data is searched in each and Electronic Discovery at the Case Western
There are currently no uniform standards platform. Professor Mart compares six legal Reserve University School of Law. He has been
specific to lawyers regulating the use of AI databases proprietary algorithms – Casetext, a CMBA member since 2017. He can be reached
platforms in the workplace. Perhaps there Fastcase, Google Scholar, Lexis Advance, at (216) 368-2083 or jac311@case.edu.
20 | Cleveland Metropolitan Bar Journal clemetrobar.org