The Coming Age of Artificial Intelligence: What Lawyers Should Be Thinking About

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by José P. Sierra

The Profession

During the Spring and Fall legal conference seasons, emails addressing “data breaches,” “improving cyber defenses,” and “what you (or your general counsel/board) need to know about cyber security/insurance,” hit our inboxes on an almost weekly basis.  Although it took some time, everybody now wants a slice of hot “cyber” pie, and law firms have been quick to jump on the cyber security bandwagon and form cyber-practices.  What hasn’t gotten the same rapt attention of conference organizers, tech vendors, and the legal community is the coming age of artificial intelligence, or “AI.”  There are at least two reasons for this.  First, although large-scale deployment of self-driving cars is just over the horizon, most of the bigger, life-changing AI products are still years away. Second, most laypeople (including lawyers) do not understand what AI is or appreciate the enormous impact that AI technology will have on the economy and society.  As a result, those in the “vendor” community (which includes lawyers) have yet to determine how their clients and their clients’ industries will be affected, and how they themselves can profit from the AI revolution.

AI and What It Will Mean for Everyone

AI may be defined as a machine or super computer that can simulate human intelligence by acquiring and adding new content to its memory, learning from and correcting its prior mistakes, and even enhancing its own architecture, so that it can continue to add content and learn.  A few years ago, AI development and its celebrated successes were limited to machines out-playing humans in games like chess (e.g., IBM’s Watson beating world chess champion Gary Kasparov and winning on the show, Jeopardy).  And while most of us are now familiar with “intelligent” assistants like “Siri,” “Alexa,” and other “smart” devices, for the average person, the full import of AI’s capabilities and potential hasn’t been grasped (though the advent of autonomous cars has given us some glimpse of things to come).

Already, AI can do many things that people can do (and in some cases better).  In addition to driving cars, AI can detect and eliminate credit card payment fraud before it happens, trade stocks, file insurance claims, discover new uses for existing drugs, and detect specific types of cancer.  Then there is the work that most people think can be done only by humans, but which AI can do today, including: (1) predicting the outcome of human rights trials in the European Court of Human Rights (with 79% accuracy); (2) doing legal work  –  numerous law firms have “hired” IBM’s Ross to handle a variety of legal tasks, including bankruptcy work, M&A due diligence, contracts review, etc.; and, more disturbing than possibly replacing lawyers, (3) engaging in artistic/creative activities, like oil canvas painting, poetry, music composition, and screenplay writing.  In short, almost no realm of human endeavor – manual, intellectual, or artistic – will be unaffected by AI.

What AI Will Mean for Lawyers

Some legal futurists think that AI simply will mean fewer jobs for lawyers, as “law-bots” begin to take over basic tasks.  Other analysts focus on the productivity and cost-savings potential that AI technology will provide.  Two other considerations of the impending AI revolution merit discussion:  revenue opportunities and the role lawyers can and should play in shaping AI’s future.

How AI May Shape the Legal Economy                 

Some of the most profitable practice areas in an AI-driven economy are likely to be:

  • Patent Prosecution and Litigation. This one should be obvious and already has taken off.  Fortunes will be made or broken based on which companies can secure and defend the IP for the best AI technologies.
  • M&A. Promising AI start-ups with good IP will become targets for acquisition by tech-giants and other large corporations that want to dominate the 21st century economy.
  • Antitrust. Imagine that Uber, once it has gone driverless, decides to buy Greyhound and then merges with Maersk or DHL shipping, which then merges with United Airlines.  How markets are (re)defined in an AI-driven economy should keep the antitrust bar very busy.
  • Labor and Employment. AI technology has the potential to disrupt and replace human labor on a large-scale.  To take just one example, in an AI-created driverless world, millions of car, taxi, bus, and truck drivers will find themselves out of work.  What rights will American workers have when AI claims their jobs?  How will unions and professional organizations protect their members against possible long-term unemployment?  Labor and employment lawyers will be at the forefront of labor re-alignment issues.
  • Tax. If AI reduces the human labor pool, as expected, and there is a corresponding loss in tax revenue, the tax code will most likely need to be revised, which will mean new strategies for the tax bar.
  • Cyber-law/compliance. The importance of protecting IP, proprietary, and confidential information, and the legal exposure of not doing so, will be even greater in the higher-stakes world of AI.
  • Criminal Defense. Will AI help law enforcement solve crimes?  Will AI be used to commit crimes?  If so, both prosecutors and the defense bar will be busy prosecuting and representing more than the typical criminal defendant.

How Lawyers May Help Shape AI

Is there a role for the legal profession in the coming AI age other than helping our clients adapt to a “brave new world?” In my view, lawyers should play a necessary and leading role.  For if AI has the potential to affect every industry and occupation and permanently eliminate jobs along the way, society’s leaders cannot afford to leave the decisions about which AI technologies will be developed in what industries (and which ones won’t) to sheer market forces.  Private industry and investors are currently making these decisions based on one overarching criterion — profit — which means everything is on the table.  Although that approach propelled the industrial and digital revolutions of the last two centuries, jobs lost by those revolutions were eventually replaced by higher-skilled jobs.  For example, teamsters of horse-powered wagons were replaced by modern teamsters, i.e., truck drivers.  That won’t be the case following an AI revolution.  The ultimate question, therefore, in the coming AI century is what areas of human endeavor do we, as a society, want to keep in human hands, even if such endeavors can be accomplished faster, cheaper, and better by AI machines?  As the profession responsible for protecting society’s interests through law and policy, lawyers cannot afford to take a back seat to the free-for-all development of AI, but instead must lead and help shape the AI century to come.

José P. Sierra is partner at Holland & Knight. He focuses his practice in the areas of white collar criminal defense, healthcare fraud and abuse, pharmaceutical and healthcare compliance, and business litigation.

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