Birss: You don’t have to trust AI
A strict page limit on outlining the case would help judges struggling to cope with litigants in person (LiPs) using AI to draft their claims, the incoming Master of the Rolls has suggested.
Sir Colin Birss also acknowledged the role of AI in opening up access to justice, despite the problems that accompanied it.
As of yesterday, Sir Colin is no longer the Chancellor of the High Court and instead has become the president of the new Business & Property Division, which replaced the Chancery Division. But on 1 November he becomes Master of the Rolls.
Speaking this week to the International Conference of Legal Regulators – meeting in London – he said many people argued that “we shouldn’t be using AI because you can’t trust it. I agree with the premise, but not with the conclusion. You can indeed use AI even though you don’t trust it.
“I don’t trust it. You don’t have to trust it, but you have to remember that you’re not trusting it. That’s the critical thing.”
Using AI to summarise text you were already familiar with was safe, he said – especially as “most of the time, what most lawyers are doing is producing a summary of information” – while he and some other judges would ask it to check for internal inconsistencies in judgments.
“It’s actually quite good at that,” he said. “It can be quite annoying.”
He supported the approach of the Civil Justice Council, which said in July that it was working towards requiring “transparency” over the use of AI in relation to expert evidence and looking too at the “distinct and evolving challenges posed by litigants in person”.
But otherwise, the CJC said, so long as a lawyer was taking professional responsibility for other court documents, then there was no need to require disclosure of whether they were created with the aid of AI.
“It seems to me that’s the right way to go. Legal professionals have got professional duties and… it’s your job to regulate them and make sure that they have that aspect of their obligations in mind.”
If it ever got to the stage of AI making decisions in place of judges, Sir Colin added, “it would require some proper legislative basis to do it”.
When it came to LiPs using AI, Sir Colin said that although “a real lawyer will be far better than these chatbots”, he recognised that “many of the people who are doing this would never see a real lawyer”.
“So they are getting something which they wouldn’t have got before, and it is better than what they had before.”
Often, the material judges were seeing from LiPs explained their case more clearly, “making more relevant points than they would have made if they hadn’t had the assistance of the AI”.
However, this was not always the case – we reported two weeks ago about a LiP who filed a 300-page skeleton argument.
Sir Colin said a limit of no more than, perhaps, five pages on explaining the case could be an “incredibly simple” solution – LiPs would be able to add as many exhibits as they wanted.
“Our top courts all have page limits. The Supreme Court has page limits. The Court of Appeal has page limits. Some Business & Property courts have page limits. You might ask why, as you go further down our system, we don’t have any page limits at all…
“I think there’s something to be done there, and I propose to do it.”
Other issues with the use of AI included confidentiality and legal privilege, as well as it potentially masking the mental capacity of litigants, he said.
While it was “unforgiveable” for lawyers to let hallucinations through, he suggested they would not be “a big problem in the long run” for LiPs once they start using simple ‘hallucination checkers’ linked to the National Archives and other sources of official judgments.
Sir Colin observed how AI looked to please users and that could skew the answers it gave LiPs.
“It worries me that they are being given advice which is too positive and they’re bringing more cases. But I think some people are also bringing cases that we’re perfectly entitled to and never did. And it’s tough to have a problem with that. In some ways we call that access to justice.”
He added that, once he became Master of the Rolls, he intended to take active interest in the CJC review of part III of the Solicitors Act 1974.
More broadly, “the question that I want to think about when I’m the MR is how can we ensure that civil justice as a whole remains accessible for individuals and small businesses? That’s something of real interest to me”.
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