Allowed to be wrong sometimes

For years now, the question has been discussed again and again in relevant formats whether lawyers will need programming skills in the future. I have always denied this - to acquire and maintain good legal knowledge is enough to fill an evening, there is no room for another discipline (apart from exceptions).

Today I say: that was too short-sighted. Just as marketing professionals need to have a deep understanding of the processes around digital advertising, lawyers of the future need to have a good understanding of the relevant digital technologies.

They don't have to be the ones writing lines of code for e-discovery suites. But they do need to be able to assess what to expect from the various technologies that are usually grouped under the umbrella term "artificial intelligence." Lawyers and notaries, corporate lawyers, judges, prosecutors and administrative lawyers - all of them will, in the course of their very own work, be facing the question of the use of technology for certain process or procedural steps and will have to assess for themselves what they can expect from it and what the risks are. By this I don't mean the eternal data protection issues, but issues such as bias, training sets, confidentiality, and most especially error calculus.

This also creates a whole new set of challenges for legal academia, but even more so for continuing legal education. For a long time, lawyers have seen time constraints as their central problem. The tension will only be resolved if ... but that is another story.

About the child and the bath

Since it recently became known how great the influence of politics is on the appointment of top judges (and all top administrative posts) in Austria, the Republic has outdone itself in cries of horror and suggestions for improvement.

The undermining of the separation of powers through massive party-political influence on the appointment of higher-ranking judges is, of course, to be condemned. Nevertheless, the general outrage is unjustified. This system has existed at least since the Second World War; it is even partly stipulated in the constitution. What is new, at most, is that "evidence" is on the table for the first time. In any case, many of those who are raising their voices today have themselves come to their top function in precisely this way. Presumably, they are also too young to still remember the clarification of the AKH scandal.

It is also exciting that only coalition parties and members of the federal government are ever mentioned. Yet it is precisely the Federal President who, as an elected politician, has the last word according to the B-VG - and highly respected former Federal Presidents knew how to make extensive use of this possibility by a simple trick: they perfected the art of not signing.

So now, according to one proposal, judges and prosecutors should only be able to be appointed by judicial nomination during their entire career path. At first glance, this sounds tempting, but it overlooks two key facts:

First, judges are human beings, too, and thus not free of political persuasion. Influence, which will certainly continue to be desired by politicians, then shifts to another level.

Secondly, with all due respect and completely disregarding the specific individuals currently acting, the following should also be considered: Systems, which complete themselves exclusively from themselves, tend generally to petrification. Not every passing over of a line-up proposal has to be politically motivated, there can also be solid reasons for it. In any case, quite abstractly, and again emphasized, without looking at any concrete persons, it cannot be assumed that change agents make it into those positions in the judiciary and the administration of justice that enable them to have such an effect even if the "system" itself decides on its supplementation.

So much for the cause and for the sake of the cause. There are certainly ways to unite both goals in a meaningful and objective way.

"The 'robojudge' is technologically impossible."

With this clear statement, the Executive Director of the Center for Legal Technology and Data Science at Bucerius Law School in Hamburg, Dirk Hartung, tried to direct the discussions about the digitalization of law into more realistic channels.  "We tend to be concerned with the social impact of technologies, the use of which is far beyond any meaningful period of consideration," Hartung said.

The occasion for his lecture was the 30th EDV-Gerichtstag (EDP Court Day), which for well-known reasons was again held virtually rather than in Saarbücken.  Prior to this, Florian Matthes, professor of computer science at the Technical University of Munich, had given a highly interesting talk in which he screened the main technologies that are currently shaping the development of legal informatics. Matthes did not hesitate to address controversial topics. When he describes Natural Language Processing (NLP) for legal texts as an essential field of research, hardly anyone will disagree with him; his appeal to rely (again) more on rule-based expert systems, on the other hand, is likely to meet with headwind.

The topic of NLP also reveals a topic that ran through the entire event. One might agree that "computer scientists and lawyers must become friends" (Maximilian Herberger) if one is concerned about the digitalization of law. However, the very mention of "understanding" legal texts as a link between the processing of existing texts and the generation of new ones triggers fundamentally different associations in lawyers and technicians: the linguistic-logical understanding of a legal issue literally collides with the mathematical approximation analysis that is meant by "understanding" from a technical point of view.

Also of direct interest to Austria is the issue of anonymizing court decisions as a prerequisite for their publication. Work on automating this labor-intensive process has been going on for some time in both Germany and Austria. It is interesting to note a thesis of the judge Isabelle Biallaß: Anonymization not only has to be humanly controlled, it also has to be scaled, depending on whether the anonymized text is to be made available to science or industry.

That could still take some time.

Filters, views, relations - and where is the AI?

During a panel discussion, Judge Michael Kunz from the Vienna Oberlandesgericht (Higher Regional Court) showed the essential functions of the new case management system "Justice 3.0" in Austria. In a nutshell: the years of preparatory work have paid off. Judges and public prosecutors now have access to a digital case management system that offers a wide range of functions:

Users can filter their cases according to a wide variety of criteria, they can also build their own "views," and even create relation tables, where key points of the parties' arguments are compared and linked to the file content. The fact that the system supports fully digital communication with all parties involved is almost taken for granted in Austria. This also includes the use of digital signatures.

The framework for Justice 3.0 was purchased from the Bavarian government, but all functions were developed in Austria. It is to be rolled out to all courts and public prosecutors' offices by the middle of next year. At those departments where it is already available, its use is strongly recommended by the employer.

And if a completely new system is being set up, aren't artificial intelligence components also being used? More about that soon ...