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Al and technology in family law

Date:5 APR 2018
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Marcus Dearle
Family Asset Protection | BCLP Private Wealth

Could family law benefit from artificial intelligence (Al)? It has already proved its worth in huge-scale disclosure, but could it, say, draft a pre-nup?

In establishing Bryan Cave Leighton Paisner's (BCLP) new Family Asset Protection Group in London and Hong Kong, the question of embracing new technology and innovation was an important factor in our business planning. The idea of offering family law through Lawyers on Demand (LOD) as a separate entity, was part of that strategy.

As my colleague Oliver Glynn-Jones has said before, BCLP is a strong advocate for the use of emerging technologies, including AI, to improve the quality and efficiency of legal work and it has won awards for its pioneering technologies, such as the real estate data extraction robot.
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BCLP is the first and only law firm practising family law in London or Hong Kong with its own in-house forensic accounting and data processing, hosting and document review capability and a predictive coding resource. 

In May 2016, as reported in The Lawyer, Oliver led the team in winning the first contested application in the UK to use predictive coding for our client, defending an unfair prejudice action as part of a substantial document review exercise following an English High Court decision of February 2016 approving the use of predictive coding technology for electronic disclosure, at the request of both parties, in Pyrrho Investments Ltd v MWB Property Ltd & Ors [2016] EWHC 256 (Ch).

The case subsequently proceeded to a 12-day trial in October 2017 and the judgment was recently handed down in BCLP's client’s favour. The disclosure provided was thoroughly tested at trial and the judge relied heavily on it for his findings. This is the first case that the team is aware of in which a disclosure exercise using predictive coding has been tested at full trial in England. 

There is no reason why some of these technologies, including AI, cannot be used in family law matters. If the High Court in London can demonstrate a willingness to support innovative approaches, family lawyers can too.

For instance, BCLP successfully acted for Mr Imerman in Imerman v Tchenguiz [2010] 
EWCA Civ 908, [2010] 2 FLR 814, which also involved a very large number of electronic documents  'the equivalent of between 250,000 and 2.5 million pages', according to the Court of Appeal judgment. It is not inconceivable that another family law case will appear which involves the review of many thousands of documents in a financial remedy case (or ancillary relief case, as we still call it in Hong Kong) of significant complexity.

Predictive coding might well be the answer, dramatically reducing the cost of the e-disclosure process and consequently speeding up the settlement process. How does predictive coding work? Oliver has explained:

'In predictive coding a senior lawyer well versed in the case reviews a small "seed set" of documents. Their decisions are then analysed by the predictive coding engine and used to generate a further sample output for review.

Through a process of iterative refinement the algorithms can reach a level of review accuracy that can be applied across the entire data set, categorising documents by relevance or by issue in a manner that is more efficient and scalable than a traditional document review.'
BCLP also uses a number of other artificial intelligence products, as do other firms. Duthie & Co, for example, told LegalFutures that its robot lawyer, LISA, which currently prepares non-disclosure agreements, 'could be used in divorce cases and may in time be able to be used in the drafting of pre-nuptial agreements'. We shall see. But certainly legal process technology can already be used to reduce the cost of pre-nuptial agreements. This is innovation BCLP is currently developing. 

One of the earliest reported uses of artificial intelligence in the legal industry in the UK came with IBM Ross, a research tool improving the way many firms conduct legal research, which uses natural language processing and machine Learning to gain insights from large amounts of unstructured data.

There has been a considerable amount of hysteria in the media surrounding artificial intelligence and law: the first big news story on the subject was that Ross-type computers would replace young lawyers. As Legal Cheek reported:

'Wannabe lawyers across the nation will be sleeping a little less easily after the High Court backed an artificial intelligence-based predictive coding technique that allows documents to be reviewed by machines rather than humans. It could have huge implications for those entering the legal profession, who had traditionally cut their teeth on such work.'
There is probably no need to worry. Family lawyers are not going to be replaced by algorithms or robots for the time being. Technology should be embraced and family lawyers should use artificial intelligence, as BCLP's real estate, disputes resolution and other teams are already doing, to enhance the quality of their work, driving efficiencies, improving accuracy, assisting with client retention (as well as client attraction), having the potential to reduce overheads and increasing profits.

The brightest and best trainee solicitors are no longer automatically prepared these days to put up with boring and repetitive work  they would otherwise walk at the end of their contracts.

Technology and innovation can free up and reinvigorate those trainees  the top talent we need to qualify into our departments as solicitors to become more involved in more interesting and challenging work.

We should not be too hasty to throw the baby out with the bath water and write off artificial intelligence and technological innovation in family law simply because it is unfamiliar territory and few if any of the more traditional leading family law practices have invested in these areas to date.

Attitudes and practice can change remarkably fast. Take the initial reaction of the large traditional law firms to LOD 10 years ago. As Ken Jagger put it at the #JDHorizons Conference in Sydney 2016:

'For the first six years they ignored and belittled the start-ups and simply hoped that the trends in the market would turn back in their favour. More recently, however, if imitation is the sincerest form of flattery, then the NewLaw providers should be very flattered. The traditional firms have now heard the message from their lawyers and clients very clearly, and change (by law firm's standards) is now happening quickly...'

BCLP's attitude towards legal technology

BCLP has a track record for pioneering new technologies in order to offer cost savings and other benefits to clients. it is one of only a few firms with an in-house data processing, hosting and document review capability, and almost unique in having an in-house Predictive Coding resource. The ability to handle all e-disclosure work in-house enables BCLP to shape the exercise in a more streamlined way than when third parties are involved, using analytics technologies in addition to predictive coding in order to conduct reviews as efficiently as possible.

Disclosure technologies are now being harnessed to offer clients early case assessments so that they can obtain an indication at the outset of an instruction whether the underlying documents are likely to support or undermine their case and adjust their strategy accordingly.