Cautious approval to use AI in writing legal opinion

England’s 1,000-year-old legal system — still steeped in traditions that include wearing wigs and robes — has taken a cautious step into the future by giving judges permission to use artificial intelligence to help produce rulings. The Courts and Tribunals Judiciary last month said AI could help write opinions but stressed it shouldn’t be used for research or legal analyses because the technology can fabricate information and provide misleading, inaccurate and biased information.

“Judges do not need to shun the careful use of AI,” said Master of the Rolls Geoffrey Vos, the second-highest ranking judge in England and Wales. “But they must ensure that they protect confidence and take full personal responsibility for everything they produce.” At a time when scholars and legal experts are pondering a future when AI could replace lawyers, help select jurors or even decide cases, the approach spelled out Dec. 11 by the judiciary is restrained. But for a profession slow to embrace technological change, it’s a proactive step as government and industry — and society in general — react to a rapidly advancing technology alternately portrayed as a panacea and a menace.

“There’s a vigorous public debate right now about whether and how to regulate artificial intelligence,” said Ryan Abbott, a law professor at the University of Surrey and author of “The Reasonable Robot: Artificial Intelligence and the Law.” “AI and the judiciary is something people are uniquely concerned about, and it’s somewhere where we are particularly cautious about keeping humans in the loop,” he said. “So I do think AI may be slower disrupting judicial activity than it is in other areas and we’ll proceed more cautiously there.”

Abbott and other legal experts applauded the judiciary for addressing the latest iterations of AI and said the guidance would be widely viewed by courts and jurists around the world who are eager to use AI or anxious about what it might bring.

In taking what was described as an initial step, England and Wales moved toward the forefront of courts addressing AI, though it’s not the first such guidance. Five years ago, the European Commission for the Efficiency of Justice of the Council of Europe issued an ethical charter on the use of AI in court systems. While that document is not up to date with the latest technology, it did address core principles such as accountability and risk mitigation that judges should abide by, said Giulia Gentile, a lecturer at Essex Law School who studies the use of AI in legal and justice systems.

Although US Supreme Court Chief Justice John Roberts addressed the pros and cons of artificial intelligence in his annual report, the federal court system in America has not yet established guidance on AI, and state and county courts are too fragmented for a universal approach. But individual courts and judges at the federal and local levels have set their own rules, said Cary Coglianese, a law professor at the University of Pennsylvania.

“It is certainly one of the first, if not the first, published set of AI-related guidelines in the English language that applies broadly and is directed to judges and their staffs,” Coglianese said of the guidance for England and Wales. “I suspect that many, many judges have internally cautioned their staff about how existing policies of confidentiality and use of the internet apply to the public-facing portals that offer ChatGPT and other such services.”

The guidance shows the courts’ acceptance of the technology, but not a full embrace, Gentile said. She was critical of a section that said judges don’t have to disclose their use of the technology and questioned why there was no accountability mechanism. “I think that this is certainly a useful document, but it will be very interesting to see how this could be enforced,” Gentile said. “There is no specific indication of how this document would work in practice. Who will oversee compliance with this document? What are the sanctions? Or maybe there are no sanctions. If there are no sanctions, then what can we do about this?”

In its effort to maintain the court’s integrity while moving forward, the guidance is rife with warnings about the limitations of the technology and possible problems if a user is unaware of how it works. At the top of the list is an admonition about chatbots, such as ChatGPT, the conversational tool that exploded into public view last year and has generated the most buzz over the technology because of its ability to swiftly compose everything from term papers to songs to marketing materials.

Associated Press