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Human v. Machine: Why Algorithms Will Not Overcome the Power of Empathy in the Legal Profession

This Legal Problem Solving post is by Rachael Pikulski, Vanderbilt Law School Class of 2019.

Artificial intelligence (AI) provides a machine with the ability to solve problems usually addressed by humans. Machine learning employs AI techniques through the use of algorithms to essentially learn and develop intellectually in a similar manner to humans. An algorithm used automated decision-making, that without human intervention, by utilizing an analytical, problem-solving “mindset” to solve problems. The ability for a machine to learn has been referred to as the future—the future of automobiles, the future of medicine, and the future of many professions. Some have gone as far as referring to this type of machine as an "algorithmic angels."

But how far will this angel go? The growing fear is that the as these machines advance, they will be able to replace many of our jobs. And this phenomenon is approaching faster than we think. Think about self-driving cars replacing all taxi and Uber drivers and surgical machines able to conduct procedures in place of doctors and nurses. While many want to believe this is far removed from our generation, the truth is that it is happening now. And technology is advancing quicker than ever. As a law student approaching graduation, I cannot help but wonder:

Will artificial intelligence replace the role of lawyers? Will algorithms solve my future clients’ cases? Will machines take over the entire profession? Will I end up unemployed?

After some serious thought about each of these questions, I would argue that no, algorithms cannot replace human lawyers. Machines will not upset the current legal landscape. And I would go even further to say that this will always be the case. There will always be a need for human lawyers.

Before diving into why we do in fact need, and always will need, human lawyers, I personally found it to be a curious inquiry to think about why we do not. As a third-year law student, my mind immediately drifted toward law school. In our first year of law school, we are engrained to essentially do the same thing over and over again: read a case, make a case brief, sit in class with the fear of being cold-called, and outline for the issue-spotting final exam. In our future profession, we will conduct research, read through case law, write memorandums, draft contracts, and possibly appear in court. When you say it like this, these tasks sound repetitive, dull, and to be honest, quite boring. It is the nature of these specific areas of the profession that make it almost ideal for the use of algorithms—and some already even exist. Should we as future lawyers be fearful of this? The answer is a simple no. No because this is all leaving out one of the most important aspects of our profession: people.

When I think about why I decided to go to law school, I think back to my studies of Arabic in undergrad and my desire to use this language to make a difference in the lives of Palestinian refugees. While everyone does not enter law school which such a specific focus in mind, I knew I wanted to help people. The success of a lawyer hinges on the attorney-client relationship, whether your client is a refugee, a businessman, or even a Fortune 500 company. The interaction between lawyers and their clients should never be undervalued. The importance of empathy to understand your client, be aware of the issues, and simply to communicate should not be underestimated. And this idea is a growing phenomenon. I am happy to say that I am currently experiencing it in my Legal Problem Solving class this semester. It has helped to open my eyes to the fact that law school is changing. The legal profession itself is even changing. And this is why human lawyers will always have a purpose.

More specifically, empathy involves understanding your clients’ problems from their perspective. I personally think the better you are at identifying with the clients’ emotions, the better suited you are to solve their problem and advocate for your client. And I say identifying with because you are of course still their attorney, and do not want to take this too far.

Empathy allows you to become vulnerable and sensitive, which are arguably qualities that make us human. Without embracing human sensitivity, human creativity, human vulnerability, and human innovation, what would the point of human interaction even be?

 

An Italian lawyer, Franceso Portolano responded to the the question of how high the risk is of losing the need for human lawyers:

"Low, I would say … One indispensable factor in any human interaction is sensitivity, that exclusively human trait that enables you to choose what to say and do based on the context and on the person in front of you.”​​

The lawyer profession is driven by your client, or as Portolano says: the person in front of you. Therefore empathy in human interaction will always be irreplaceable parts of the profession; a human trait that a machine will arguably never have, no matter the advancement. And to those who argue empathy is not an important aspect of lawyering, well they may very well be the lawyers that lose their jobs to machines.

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