Damned if you do and damned if you don't: Can NOT using AI amount to negligence?

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25th memorial address in honour of Lord Peter Taylor of Gosforth The Honourable Society of Lincoln’s Inn Wednesday 22 May 2024

Damned if you do and damned if you don’t: is using AI a brave new world for professional negligence?

The Right Honourable Sir Geoffrey Vos

Introduction

Many thanks to Victoria Woodbridge for inviting me to deliver this 25th address in honour of Lord Taylor of Gosforth, former Lord Chief Justice of England and Wales, whom we all remember fondly. He died far too young in April 1997.

I have started several recent lectures by reiterating the need for all lawyers and judges get to grips with new emerging technologies in general and AI in particular. AI is changing every profession and every industry fundamentally, not just the law. For professional negligence lawyers, this is indeed a watershed moment.

Professional negligence lawyers may be at the epicentre of the brave new world I have referred to in my title.

As we work out what artificial intelligence should, and what artificial intelligence should not, be used to achieve for individuals and businesses in societies across the world, people will quickly move on to consider liability. That liability will likely arise as much (a) in relation to AI having been used, as (b) in relation to AI not having been used, in any particular situation.

To give a simple example, when, as it can already, AI can help diagnose whether a skin defect is cancerous, doctors may be as much liable for using an available AI tool wrongly, as they might be liable for not using it at all. I will return to this in a moment. I use a medical example because lawyers can be more dispassionate about other professionals. They tend, in my experience, to be more prescriptive, perhaps even didactic, when talking about the use of AI within their own discipline.

There are, I think, two common schools of thought.

The Pros and the Antis

The first school of thought complains that AI is dangerous, that it hallucinates, that it is prone to bias and that it can create inaccuracies that are particularly hazardous for the legal sector. In short, in the legal space, they say, the public needs legal advice and legal decisions from human lawyers and human judges in whom they can have complete confidence. This theme leads to the conclusion that, if lawyers and judges are ever to use AI, they must do so only in the most regulated of circumstances and with the greatest care and circumspection. Since AI can be used for fraudulent fakery, it must be shunned. This same approach can be applied equally to doctors, accountants, architects, engineers, actuaries and almost every other conceivable professional practice and business, but, as I say, lawyers tend to be more concerned to single their own profession out for special treatment.

The second school of thought is quite different. It contends that clients will, sooner rather than later, become unwilling to pay for legal tasks to be performed by a human lawyer, when that same task can be done better, quicker and much more cheaply by an AI. LLMs are about to become far more reliable. They will be integrated with database technology so as to reduce hallucination, inaccuracy and bias. AI can process large datasets, summarise legal materials, undertake legal research and resolve complex problems far more effectively than human lawyers and judges. Whilst there are some inter-personal tasks that humans will still need to undertake, the grunt work will very soon be done by machines. Again, these arguments apply to every other professional practice and business in analogous ways.

What I hope to do in this lecture is to compare these two perspectives and see whether there is a median position. Along the way, I shall try to explain the title I have chosen. For sure, I conclude, there will be problems if you adopt AI hook line and sinker (damned if you do). And for sure there will be equally serious problems if you shun or ignore AI (damned if you don’t). But you may not have thought how professional negligence lawyers will be at the epicentre of the issues thrown up by: (a) the ever-increasing intelligence of machines, and (b) the ever-increasing number of purposes for which machines can be used, and for which consumers and businesses will want, even require, AI to be used.

What professional negligence lawyers do that is special in this context is to look at the law surrounding how other people do their jobs. AI will have a profound effect on how other people do their jobs.

May I start with two points about current developments in AI technology.

Current developments

First, AI is improving and changing very rapidly indeed. GPT 4, even GPT4o, will, it seems, within 18 months, be superseded by GPT 5, which will have surprising new capabilities that are expected to be game changing. Artificial general intelligence is not far away. I have heard that multiple new kinds of AI are being developed that will take the machine’s capabilities way beyond the LLM. Machines will obviously never operate in the same way as the human brain, but we will need to adjust fast to their capabilities. There is plainly a danger that lawyers and judges will fail to understand and respond to the seismic changes that are occurring in what machines can do and will be doing.

The second point is this. Real intelligence probably requires knowledge, reasoning and communication. AI has access to a large volume of data and knowledge and has good, perhaps great, communication skills. Its weakness at the moment is in the field of human reasoning. Its even greater weakness is in the application of that intelligence in the field of empathy. It has been said, and it is important to understand this, that machines cannot suffer or feel pain; they cannot cry or laugh. They have no conscience. Many aspects of the rule of law and the concept of justice itself depend upon empathy, conscience, even guilt, and our reactions to suffering. It is, therefore, incredibly important as AI is increasingly embraced and adopted that we, as lawyers, understand what it does well and what it does less well. That understanding will guide us towards the maintenance of human values in an ever more technologically enabled legal environment.

Four Questions

With that introduction, I want to examine: (1) whether it is realistic to say that AI is too dangerous to be used by lawyers and judges, (2) where AI is likely to become part of the everyday advisory and dispute resolution armoury and where it is not, (3) what we can do to take advantage of the best and to protect ourselves from the worst of AI, and (4) how the work of liability lawyers and judges will look once the “machine age” is further advanced.

Is it realistic to say that AI is too dangerous to be used by lawyers and judges?

The short answer to this question is “no”. And the same applies to most, if not all, professionals and businesses. But, that said, it will be necessary for all lawyers, very quickly I think, to learn a great deal more about the dangers that AI poses and the advantages it offers.

It is obviously very worrying for the music industry and intellectual property owners that programmes like Suno can produce, in seconds, excellent songs, with excellent lyrics, on any subject, in any genre. It is equally concerning that damaging deep fake images can be produced using readily available programmes without great expertise. And fraudsters already use AI to deceive and defraud. There are some even more concerning uses of AI affecting privacy, military applications and the democratic process itself. In the law, we worry about whether judges may be replaced by automated decision-makers.

It is most likely that we will never be able to eradicate the risks I have mentioned, and probably many more. But I do not think that we should use them as excuses either for refusing to learn all one can about AI and other emerging technologies or for refusing to embrace those technologies for what they can do to help people in general and the citizens who need legal services and dispute resolution in particular.

Instead, therefore, of suggesting that we can stop AI being used, when we cannot, lawyers need to use their powers of human reasoning and empathy to ensure that two things occur. First, we need to ensure that lawyers are educated about the risks that AI poses. Secondly, we need to ensure that lawyers are trained to know how to use and how not to use AI, and how to protect clients, businesses and citizens from those who will inevitably try to use AI for malign purposes. Yet again, this applies as much to other professionals and businesses as it does to the legal profession.

There is, I think, a genuine risk, bearing in mind the speed at which these technologies are developing, that lawyers and judges will move too slowly to understand and respond to AI and its effects. The school of thought that pretends that it is too dangerous for lawyers and judges to get involved is a real problem. Only if we do get involved and we educate ourselves fully, can we be best prepared to serve the public better in the future AI-enabled world.

There is a further reason why it is unrealistic to suggest that it is too dangerous to use AI. That is economic reality. The clients of lawyers and all other professionals and businesses will, as I have already intimated, not ultimately be prepared to pay for what can be done without significant charge by a machine. Though I have stated that principle in an unqualified way, it is in fact a principle which has limits.

You will recall the Law Commission’s excellent reports a few years ago now about liabilities that will arise from the use of automated vehicles. Reading those reports then, and seeing the Automated Vehicles Act 2024 which received Royal Assent on Monday 20 May 2024, might have led you to believe that, within months, our roads would be flooded with self-driving vehicles. Not so; not at the moment, anyway. That may be partly because there are some machines that people are actually very hesitant about. Only yesterday, the Times reported a YouGov survey that found that more than two-thirds of people would feel unsafe in an automated driverless vehicle. People will have confidence in some automated processes and not others. The trick for the future will be working out which is which. I will return to this point.

The second limitation on the principle that people will not pay for services that a machine can provide for free is that legal advice and decision-making concerning the areas that most closely reflect our humanity and empathy will likely be the last to be overtaken by AI. Parents are likely to need human lawyers to advise about care proceedings, and criminal sentencing is likely to be a human activity, for many years to come. Indeed, lawyers will always, I think, be needed to explain the legal position to clients, even if the advice and decision-making is undertaken or assisted by machines.

But subject to those caveats, I cannot see individuals and businesses accepting lawyers charging, for example, for armies of para-legals and assistant solicitors to check IPO documentation that a machine can check for nothing. I cannot see clients paying large sums for manual legal research to be undertaken when specialist AI-driven research tools exist (as some do already).

So, we need to ask ourselves where machine lawyering will become commonplace and where it will not. We need to try to make sure that we understand what machines can do and, as I have said, which automated legal processes clients will trust and which automated processes they will not trust. Again, this is all about human confidence in technology.

Only by understanding these things will we be able to adapt the training for our lawyers and other professionals, so as to prepare them for the work they will actually have to do in the future.

Where is AI

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