Let me take you back in time… Some of you may remember phone operators, like the lovely young women from “Cable Girls” (can be enjoyed on Netflix) putting the calls through while navigating a maze of cables or the video rental stores where one could rent a video cassette to watch a movie at home… gone, gone are these days, forever.
Oxford professor Richard Susskind wrote “The End of Lawyers?” in 2008 and most recently, he has elaborated on new and inevitable changes in the practice of law in “Tomorrow’s Lawyers”. In it he talks about the “more for less” challenge to provide legal services to clients at lower costs, the advent of legal services being provided by non-lawyers and, the biggest reason for changes: technology, which includes a lot of disruptive technologies. Yes, disruptive.
In fact, according to a recent 2024 Legal Industry Report by MyCase and LawPay, “nearly 27% of legal professionals reported using generative AI for work-related purposes, indicating a rapid adoption rate withing the profession” writes Nicole Black in “The Top Legal Technology Trends of 2023”. She continues to indicate that Thomson Reuters acquired “Casetext and its generative AI product, CoCounsel, for a whopping $650 million, highlighting the high level of interest in generative AI technology.” What impact will that unstoppable growth of AI have on our profession?
What about global trends, beyond the practice of law? Exactly a year ago, in 2023, Goldman Sachs Economics Research released a report, “The Potentially Large Effects of Artificial Intelligence on Economic Growth” relying on data from the U.S. (900 occupations) and Europe (2,000 occupations) which found that potentially, “…two-thirds of current jobs are exposed to some degree of AI automation and that generative AI could substitute up to one-fourth of current work”. They estimate that, “…one-fourth of current work force tasks could be automated by AI in the U.S with particularly high exposures in administrative (46%) and legal (44%) professions”. The underlying theme is, of course, the increase in productivity but the outlook predicting that almost 50% of legal tasks could become automated by generative AI is bleak…for us humans at least.
Thinking about extinct creatures generally brings to mind the age of dinosaurs. Millenia ago, they were the dominant creatures on earth until changes happened, and they were unable to adapt to those changes in their environment. In 1859, Charles Darwin, in his seminal book “The Origin of the Species”, elaborated on “natural selection”. The focus here should be on “survival of the fittest” (first coined by Herbert Spencer in his 1864 “Principles of Biology”), the idea being that only those who most adapt to their changing environment survive. Will we survive in light of the influx of generative AI permeating so many aspects of our lives? If so, how? Will we retain our dominance? Or will we remain filled with fear like in Mary Shelley’s 1818 novel “Frankenstein” in which an artificial being comes alive? Perhaps there is a silver lining in this unstoppable growth of AI technologies…? Turning back to the Goldman Sachs report, there is a reference to a recent study by economist David Autor where he found that, “…60% of workers today are employed in occupations that did not exist in 1940, implying that over 85% of employment growth over the last 80 years is explained by the technology-driven creation of new positions.”
Yet, the spectre of a machine-learning system predicting outcomes of a dispute instead of a trial in court is hovering above us. Lawyers are not immune from all these technological advances and many lawyers already use the power of artificial intelligence in legal research, document management, and contract reviews, just to mention a few. Artificial intelligence is intelligence shown by machines, in contrast to our human intelligence which sets us apart. So let us forego the future where artificially intelligent robots enslave humanity and instead let us collaborate in a very human way.
So, what is truly human that sets us apart from AI machines? What can we experience as humans in our work that machines cannot? Some of these concepts will be connected to the notion of consciousness and our subjective experience, experiences such as pain that machines cannot feel. AI does not have consciousness or emotions, as we sentient beings can experience. In short AI is not self-aware and building such machines that will become self-aware remains still in the distant future. They may have complex conversational abilities, but humans have very advanced conversational capabilities, and moreover, we can empathize, and AI cannot.
In the meantime, until AI becomes sentient, let us enjoy deeply human collaboration in resolving conflict. The Latin root of the word collaborare means working with, which is what we do in collaborative law: work in teams to resolve conflict. When we work in teams, we listen to each other, we respect each other, and we delve into creativity unsurpassed by any machine. One of the unique characteristics that defines our humanity is that we can imagine different futures and act accordingly. We can lean on our emotional connection with one another, we have our ability to love and be loved, and to show compassion for those in conflict. With the rise of AI and its potential to take over many jobs traditionally done by humans it is more relevant than ever to focus on our deeply human collaboration.
How do we do this? Let us go to Harvard and meet Francesca Gino, a behavioural scientist at Harvard Business School and author of “Sidetracked” (an excellent book, by the way). In her article, “Cracking the Code of Sustained Collaboration”, published by Harvard Business Review in 2019 she says that “...one problem is that leaders think about collaboration too narrowly: as a value to cultivate, but not a skill to teach.” She writes that what is needed is a “psychological approach” and what she found after “analyzing sustained collaborations in the wide range of industries” was that they were, “...marked by common mental attitudes: widespread respect for colleague’s contributions, openness to experimenting with others’ ideas, and sensitivity to how one’s actions may affect both colleagues’ work and the mission’s outcome.” In fact, she offers six different techniques to improve collaborations. One such technique is to “train people to practice empathy.” She further states, “In successful collaborations, each person assumes that everyone else involved, regardless of background or title, is smart, caring, and fully invested. That mindset makes participants want to understand why others have differing views, which allows them to have constructive conversations. Judgment gives way to curiosity, and people come to see that other perspectives are as valuable as theirs.”
Empathy, along with self-awareness, self-regulation, motivation, and social skills is a key, interpersonal skill, an ability to put yourself in someone else’s shoes, become aware of other’s feelings, and being able to respond to them, without necessarily agreeing with them. Centuries ago, in the olive groves of ancient Greece, the Delphi Oracle offered the following: Nesce te ipsum - Know thy self. Knowing oneself means being self-aware, in other words, understanding, recognizing your emotions and what is important to you. The emotional dimension to our existence is what truly makes us human. In his famous book “The Expression of Emotions in Man and Animals” Darwin wrote that, “…blushing is the most peculiar and most human of all expressions as no other animal has this trait.” It is involuntary and therefore it is considered an authentic expression of emotion. Self-awareness “is a neural mode that maintains self-reflectiveness even amidst turbulent emotions”, writes Daniel Goleman in “Emotional Intelligence”, so really being able to attend to one’s internal states.
So, what are the fundamental values to cherish in our collaborative practice? Undoubtedly, reflecting on Gino’s and Goleman’s work, success in collaborations is tied to, among others, respect, empathy, and self-awareness. We humans, as opposed to AI, are cultural beings who can experience emotions, pain, and empathy. We connect with one another to resolve conflict through creativity by being able to envision different futures. We are guided by our emotions in decision-making and AI, well, it is just programmed by smart humans.
I decided to ask ChatGPt the profound existential question that many of us are still trying to find an answer for…. “What does it mean to be human?” and here is its answer: “To be human is to navigate a complex web of biological realities (Right, we feel pain!), emotional depths (Yep! We love and can be loved in return), intellectual capabilities (Resounding yes! Even to program ChatGPT not version 4 but maybe ChatGPT24?), social relationships (No doubt, we are tribal), and existential questions (just ask Hamlet when he pondered “to be or not be”). It is about embracing the myriad of experiences that come with human consciousness, from tangible realities of daily life to the intangible quest for meaning and connection”. Well put ChatGPT!
In the collaborative process we create new meaning and new futures with our clients. And so, let us stay connected in our practice of law by cultivating deeply human values and drawing on our human intelligence, shall we?
