How digitalisation and AI could affect litigation and litigators

June 2023  |  SPECIAL REPORT: INTERNATIONAL DISPUTE RESOLUTION

Financier Worldwide Magazine

June 2023 Issue

Over the last few years, the growth of digitalisation has led to many innovative changes in the legal profession, both in terms of operational tools and organisational business models and in the management of attorney-client relationships.

In general, the development of new technologies and the application of artificial intelligence (AI) tools in the legal field has required many lawyers to rethink their traditional working tools.

The use of technology such as virtual meeting platforms and the practice of remote working have grown exponentially in recent years, partly as a result of the coronavirus (COVID-19) pandemic and the required social distancing measures imposed to help contain the virus.

Conventional analogue systems for searching, storing and managing data or documents are increasingly being replaced by innovative digital tools based on machine learning processes, document management systems, automated drafting and predictive technologies.

In such scenarios, the digital revolution means that lawyers also need to keep their technological skills and knowledge up to date, as well as invest in digital tools and software.

To that end, digitalisation helps lawyers to rationalise and improve legal work, starting with legal research, which is the foundation of any legal action.

Until a few years ago, legal research involved collecting and analysing multiple texts, manuals, encyclopaedias and compendiums of judgments. Today, this activity has been simplified by consulting online or digital judicial databases, saving time and costs for both the lawyer and their clients.

Therefore, digitalisation is no longer a choice but a necessity, even for the most traditional of legal figures: the litigator.

In recent years, Italy has pursued, and continues to pursue, the goal of digitalising the legal profession, either directly or indirectly, through specific regulations.

As of 30 June 2014, the requirement to file certain types of court documents through the computerised Telematic Civil Process (PCT) system came into effect in Italy.

The PCT has effectively digitalised a wide range of judicial and administrative activities traditionally carried out in analogue or paper form, in order to make trials faster and more efficient, using IT tools.

Through the PCT, lawyers can consult court files online, carry out traditional communication activities with judicial offices electronically, and file court documents and motions electronically – all without having to physically visit the courthouse.

With Legislative Decree No. 149/2022 (Cartabia Reform), the Italian legislature recently introduced a series of amendments to the Italian Code of Civil Procedure, partly with the aim of digitalising court proceedings, particularly with regard to the civil process. The Cartabia Reform’s expressed objectives also include simplifying, accelerating and rationalising the trial process, while continuing to guarantee adversarial rights.

First and foremost, the Cartabia Reform introduced a general obligation to electronically file the motions documents and decisions relating to civil trials, at every stage and level of the proceedings, including those before the Italian Corte di Cassazione, which in the Italian judicial system represents the court of final appeal against judgments.

Following the emergency provisions enacted during the COVID-19 pandemic, the Italian legislature later formalised remote civil hearings, which had already been ‘tested’ during the pandemic.

According to the new provisions of articles 127, 127-bis and 127-ter of the Italian Code of Civil Procedure, the judge in civil cases may use alternative methods of handling a case, rather than the traditional model requiring the physical presence of attorneys and judge in a courtroom. More specifically, the judge may order civil hearings to be held via remote audio-visual links or to be replaced by electronically filed written notes, provided that such hearings do not require the courtroom presence of witnesses (as opposed to attorneys, parties, prosecutors or court assistants).

Accordingly, digitalisation of legal activities allows lawyers to dedicate more time to complex analysis, interactions with clients and business development activities.

In this respect, the development of new technologies also provides competitive advantages for lawyers to set up and implement new business models based on more efficient and sustainable work processes.

On the other hand, the growth of AI has led many to wonder whether it can replace lawyers altogether.

That is what happened, for example, in connection with the DoNotPay case, the AI system developed by Joshua Browder, known as the ‘world’s first robot lawyer’. DoNotPay’s stated mission is to use AI to make legal information and self-help accessible to everyone, to help consumers fight back against large corporations and solve their own problems, such as contesting parking tickets, appealing bank fees or suing robocallers.

In February 2022, DoNotPay was supposed to take part in a trial involving a speeding ticket. The AI system would listen to what was discussed in court and then suggest a defence strategy to its client, replacing, in every aspect, a lawyer. The recent rise of chatbot or generative AI technologies – software that can simulate and process conversations or content, enabling users to interact with digital devices almost as if with a human being – has also led to a rethink of the traditional role of the lawyer.

Generative AI also appear capable of offering legal advice, at different levels of specialisation. For example, AI can be utilised to generate standard contracts or court documents, conduct legal research or provide opinions or solutions on legal issues. However, the application of AI creates  issues regarding its legal qualifications, related responsibilities and the collection of personal data.

On 30 March 2023, the Italian Data Protection Authority (Garante per la Protezione dei Dati Personali) identified a data breach involving the conversations and information of ChatGPT’s users. In its order relating to the breach, the Italian Data Protection Authority highlighted that OpenAI, the US-based company developing and managing the ChatGPT platform, provides no information to users whose data is collected. Equally, according to the Italian Data Protection Authority, the information made available by ChatGPT is not always factually correct, and thus inaccurate personal data is often processed. Furthermore, the lack of any age verification mechanism exposes children to receiving responses that are inappropriate to their age. Consequently, the Italian Data Protection Authority imposed an immediate temporary limitation on the processing of Italian users’ data by OpenAI and suspended access to ChatGPT on Italian territory.

With the subsequent order of 11 April 2023, the Italian Data Protection Authority stated that it would suspend the temporary restriction if OpenAI took the necessary measures to protect user data to the level required by EU Regulation 2016/679.

Going forward, and with specific regard to the ‘legal’ functions of ChatGPT and other AI platforms, the developers of such technologies must be able to provide adequate guarantees on liability for erroneous and unreliable legal advice and related damages.

The use of AI in the legal field raises a number of significant legal issues. Overall, AI tools do not provide the same level of reliability, data security, efficiency and sensitivity as a lawyer.

AI may be a valuable tool for lawyers, but its use in the legal field cannot occur without a lawyer’s control and expertise.

Given the critical issues related to the use of AI, technology seems far from being able to replace the discernment and experience of a lawyer.

Digitalisation and the development of AI are useful in the legal profession, enabling automation and improving efficiency. Therefore, technology should not be regarded as an enemy or competitor, but rather as a valuable tool which can be utilised in support of the practise of law, helping lawyers and their clients save time and cost and increasing productivity.

It is hard to imagine that computers can replace a lawyer’s experience and ‘human’ skills, and will lead to the gradual disappearance of this professional role. As Elbert Hubbard said: “One machine can do the work of fifty ordinary men. No machine can do the work of one extraordinary man.”

 

Giovanni Gigliotti and Maurizio Vasciminni are partners and Giada Russo is an associate at Pavia e Ansaldo Studio Legale. Mr Gigliotti can be contacted on +39 06 695161 or by email: giovanni.gigliotti@pavia-ansaldo.it. Mr Vasciminni can be contacted on +39 06 695161 or by email: maurizio.vasciminni@pavia-ansaldo.it. Ms Russo can be contacted on +39 06 695161 or by email: giada.russo@pavia-ansaldo.it.

© Financier Worldwide

BY

Giovanni Gigliotti, Maurizio Vasciminni and Giada Russo

Pavia e Ansaldo Studio Legale

©2001-2024 Financier Worldwide Ltd. All rights reserved. Any statements expressed on this website are understood to be general opinions and should not be relied upon as legal, financial or any other form of professional advice. Opinions expressed do not necessarily represent the views of the authors’ current or previous employers, or clients. The publisher, authors and authors' firms are not responsible for any loss third parties may suffer in connection with information or materials presented on this website, or use of any such information or materials by any third parties.