Courtroom Advocacy is ‘Inherently Human’: Why ChatGPT won’t replace Barristers

Article recently published in Lawyers Weekly on 5 June 2023, by Lauren Croft.

While artificial intelligence (AI) and other emerging tech are likely to replace a number of legal functions outside the courtroom, these barristers and criminal lawyers say that tech like ChatGPT won’t replace the Australian judiciary for decades to come.

ChatGPT and similar AI tech have made global headlines in the first half of 2023 and prompted waves of change within a number of industries, including the legal profession. You can read Lawyers Weekly’s full coverage of ChatGPT and other AI platforms and what lawyers need to know here.

Following these developments — and despite AI reportedly not having an impact on family law matters — Lawyers Weekly spoke to a number of barristers and criminal lawyers to delve into whether emerging tech like ChatGPT could ever replace lawyers in the courtroom, particularly in matters where jury connection is paramount.

Morrisons partner Matthew Ward said that while he doesn’t think ChatGPT could replace lawyers entirely, technology will continue to “play an ever-increasing role in the courtroom”.

“Such technology will hopefully assist access to justice as well as provide further efficiencies in courtroom process and procedure. However, at every jurisdictional level in the criminal law, our systems require decisions by humans, about humans. These decisions are informed by the presentation of evidence and submissions through courtroom advocacy,” he explained.

“The role lawyers play in this process is significant, as it involves creating a human connection between the lawyer and the decision-maker. Whilst ChatGPT will continue to gain further knowledge and expertise over time, for as long as our system involves human beings making decisions about other human beings, lawyers will have a role to play in the courtroom.”

Similarly, Eight Wentworth Chambers barrister and College of Law lecturer Lachlan Menzies said that while written submissions already occasionally replace lawyers in the courtroom — when matters are heard and determined “on the papers” — “ChatGPT could not replace lawyers in the courtroom”.

“It would be practically possible to send to the judge a written submission authored by AI. But it would never be as good, or even acceptable, for the content not to be authored by a lawyer.

“A machine cannot be given input data or any algorithm that could realistically enable it to pick out and synthesise legislation and case law customised to the facts of the client’s case and be responsive to the opponents’ case and arguments, and then compose writing that is the right balance of objectivity and persuasion for a human audience, who is the judge,” he said.

“AI could perhaps generate a fairly sterile first draft, and then the lawyer would spend wasted time fixing it up and supplementing it instead of structuring and composing it wholly from the start. As for presence in the courtroom, the productive and dynamic exchange and orality in the courtroom are why courtrooms are still the forums in which cases are tried, albeit sometimes by video link. A machine cannot in real time participate in that. Machines are very good at generating real-time transcripts, though.”

Due to the fact that the Australian legal system is based on the Westminster system, whereby the elected legislature is left to install and supervise the government, robot technology would have “difficulty” replacing judge and jury, according to Svenson Barristers barrister Sharon Kermath.

“Technology will have difficulties to replace human interaction with the judge(s) and other parties of the court process, examination and cross-examinations of court witnesses, making legal interpretations of legislation, case law and making submissions to the court,” she said.

“Technology does not have the advocacy skills nor interpretation skills to tackle complex legal issues as a human has. A legal representative provides a service, an emotional need to clients where a robot/technology does not. Due to my reasons above, it is unlikely that technology would replace lawyers in the courtroom. If technology replaces lawyers in the courtroom, then the question is does technology replace the judiciary in the courtroom?”

College of Law lecturer and accredited specialist in family law Kathryn Kearley agreed — and added that ChatGPT is unlikely to replace lawyers in the “next 30 years” at least.

“The rules of evidence are complex, and the way that statute and common law are argued by experienced advocates and applied thoughtfully by judges under the oath of office is not something a robot or algorithm can master. The role of narrative in evidence is chief and is critical in trial before judges, whether with or without a jury. Narrative in evidence is a key part of the interlocking parts of advocacy being case theory, case preparation and presentation and making submissions,” she explained.

“Chat GPT may have a role in the resolution of minor disputes, but I would much prefer to see the funding of mediation for such cases.”

In terms of a narrative in evidence being important in litigation, storytelling is also important for jury connection — something Mr Menzies said cannot be replicated by technology.

“I think that judges come to a case with three concurrent motivations: (a) to achieve a just outcome in the real-world situation brought before them; (b) not to be overturned on appeal; and (c) rather than applying the judge’s personal subjective moral sense, instead, to use a reasoning process that has integrity in society structurally and objectively, by applying legislation and case law in a conventional way, and avoiding unless necessary any adventurous creativity in modifying how and what the law is presently declared and understood to be,” he outlined.

“Storytelling helps success with item (a), if the story is supported by cogent evidence. Part of storytelling involves propounding a case theory that resonates with life experience making your client’s story the more plausible version as to what, on the balance of probabilities, is likely to have been the facts that happened and that the judge should find happened.

“How that element of life experience could ever be contributed by AI in developing a case theory and readjusting it as the case progresses, and propounding it at trial, is hard to imagine.”

Moreover, the connection between an advocate, jury members and an accused person is “critical to courtroom advocacy”, Mr Ward agreed.

“Advocacy, which is the art of persuasion, involves convincing judges and/or juries to make a certain decision. This requires a level of skill and human connection between the advocate and the jury and/or judge.

“This could be an assessment of evidence based on common sense and the experience of life, or a subtle inflection/change in pace and tone during submissions. I cannot see how it can be effectively recreated by artificial intelligence because these traits are inherently human and completely individualised between different advocates,” he explained.

“On top of this, the very process itself involves an assessment of a set of facts about human behaviour (e.g. sexual assault, offences of violence etc.). We are humans judging other humans, often in very personal human experiences. These are often intrinsic judgments and decisions that, in my view, will see lawyers in the courtroom for many years to come.”

But despite this, Mr Ward urged those within the Australian judicial system not to completely dismiss ChatGPT and emerging tech — as it can improve courtrooms, preparation and jury experience.

“The more we can utilise and integrate it into what we do as lawyers, the better our profession will be and the more lawyers will be able to focus on other areas. We have recently seen the issues ChatGPT has created involving fake cases, but this will likely be resolved over time as the AI continues to learn. However, technical knowledge is not enough to be a courtroom advocate. The application and presentation of that knowledge is where the human element is key,” he added.

“I do think parts, if not all, of some legal work outside the courtroom will be replaced by AI or other technology. We are already seeing some examples of this in certain software, which automates previously time-consuming procedures. It will be interesting to see how the role of lawyers over time will shift or dissipate, as the technology continues to embed itself within the profession.”