The Courtroom Enters the Information Age
This entry is part of a series on the role of science (and technology!) in the Federal Judiciary.
When it comes to technology, the courts have adopted new machines and applications at a slow and incremental pace. For instance, in 2013, Justice Elena Kagan mentioned that the Court still didn’t use email – everything was circulated on paper. A photocopier was not present at the Court for a full 30 years after its invention, while the printing press, ever the stalwart, remained in use until the 1980s. Even though other courts integrated technology a bit faster, the judicial branch is often depicted as an archaic institution running on yesterday’s tech.
But when the COVID-19 pandemic led to nationwide lockdowns, the courts embraced the uses of new technology at warp speed. Within a few weeks, nearly all hearings and many other court proceedings had transitioned into the virtual world, joining the handful of other courts that had been using videoconferencing as early as 1999. In a 2021 Federal Judicial Center study, nearly half of over 1,000 surveyed judges reported never having used it before the pandemic, but 94% were using it after the pandemic.
Of course, this transition was not without its bumps and bruises. In one of the incidents that permeated into the pop culture zeitgeist, a lawyer got “stuck” as a virtual cat in a digital filter, leading him to declare to the judge, lawyers, and hearing attendings that “I’m not a cat.” Yet, despite some technological challenges, only 5% of judges in the same 2021 survey had mostly negative experiences when using videoconferencing. Just 2% of judges reported that they consistently had major challenges in using the technology. The vast majority of judges support the ability to use videoconferencing in the courtroom, while still acknowledging that in-person proceedings have advantages.
Artificial intelligence (AI) and generative AI have entered the chat…
Another rapid change is impacting the courts - artificial intelligence (AI) and generative AI. Already two of the most popular legal research platforms, LexisNexis and Westlaw, have integrated generative AI into their software packages, offering customized research answers for users. Nearly three-quarters of lawyers say that they are looking forward to using AI in their practice in 2024.
Much of this excitement may stem from the success of computer- or technology-assisted review (CAR or TAR), which can help sort through relevant documents in discovery. TARs have gained popularity over the last decade; so, AI is not new to the courts. But now, generative AI technologies are starting to cause a bit more of a stir. In early 2023, a New York lawyer submitted a ChatGPT-generated legal brief which hallucinated fake cited cases, demonstrating very real-world consequences to a reliance on generative AI. More high-profile incidents followed, leading to sanctions on the lawyers at fault. It seems that even the legal-specific generative AI tech may not be “hallucination-free.” One recent preprint suggests the paid, customized legal research generative AI tools still hallucinate up to 33% of the time.
Other legal tools are also able to perform so-called “litigation analytics,” where data on a case type, court, or even specific judge are pulled to help attorneys determine which path to take in courtroom proceedings. For example, LexisNexis’s database purports that for a given judge, lawyers can see the rates at which types of motions succeeded, what cases and other judges are cited most in opinions, and what kind of sentences are given with different types of cases. These data, although not always complete or entirely accurate, are currently being analyzed by AI for lawyers hoping to target where to file specific cases to best achieve success in their cases. Due to concerns about bias and the lack of transparency, the use of such analytics was quickly banned in France. Here in the United States, reactions have been mixed. While some are just as worried as their French peers, other judges and legal scholars are less concerned about the impacts of the use of such analytics. In a 2022 report, a working group of scholars and judges wrote optimistically about the possibilities that AI-derived analytics could also be used to reduce inequities in the courts by helping identify patterns on “how courts can be organized to permit greater access to them, at a reduced cost.”
Throughout history, from the invention of the telephone to the rise of generative AI, society has oscillated between demonizing and evangelizing every new technology, reflecting our complex relationship with innovation. Yet the truth is usually somewhere in the middle. In this year’s annual report, Chief Justice John Roberts agreed, writing: “I predict that human judges will be around for a while. But with equal confidence I predict that judicial work—particularly at the trial level—will be significantly affected by AI.” At the end of the day, innovation will continue to impact how the courts function, and, in turn, courts will continue to adapt and change – maybe even just a little bit faster than their more 30-year delay in adopting email.
