MESSAGE FROM THE PRESIDENT BY RICHARD POCKER, ESQ., PRESIDENT, STATE BAR OF NEVADA

ARTIFICIAL WISDOM

This month’s edition of Nevada as well as serendipitous improvements. adjudicate their small claims matters online. Lawyer explores the countless and Nonetheless, sorting out the details of Presumably human judges rule on the cases, incorporating eDiscovery into the civil but it is a short walk from there to “just” intriguing legal issues surrounding and criminal justice processes pales in solutions calculated by artificial . the of artificial comparison to effectively and wisely Perhaps tempting to the general public or intelligence in the world around incorporating increasingly sophisticated overburdened courts as an efficient alternative us. Long overdue as a serious line aspects of into the to our sometimes slow and complicated process by which we dispense justice in justice system, abdicating our responsibilities of inquiry for the legal profession, this country. to what would truly be “calculated justice” determining how and why the The utopian promise of artificial would be the most grievous of errors masked business and activities of our intelligence is that it can assist our courts, as progress or innovation. prosecutors and juries to reach better, It is no accident that we see little citizens are impacted by more just, more informed, discussion of such as “artificial this rising influence of data-driven decisions. After judgment,” “artificial wisdom” or “artificial software and all, algorithms and analytical discretion.” They don’t exist, and no can no longer be avoided. systems can be designed to scientist will ever develop them. Judgment process far more precedent, and discretion are the key strengths of Our contributing authors information and correlations our justice system, and both require the tackle many of the than can any mere mortal. In human attributes of compassion, wisdom, ramifications of what an earlier era, this was the experience and . The limitations is affectionately partially-fulfilled promise of artificial intelligence in law should be of computerized legal obvious. In 1954, an designed to known as “AI,” research; in a matter of compile and analyze existing legal precedent comprehensively minutes, the new world of would never have suggested or predicted and provocatively. But electronic searches could amass the arguments which prevailed in Brown v. enough material to endlessly Board of Education. (Existing legal research it will soon be time to give string-cite every conceivable aids often remind me of the cluelessness serious consideration to how case on a legal issue, work that in of iTunes. When I download a Bob Dylan these same technological 1984 would have involved three song, I am met with the response, “maybe breakthroughs directly assist all-nighters and multiple cases of you would like this Joan Baez recording.” Dr. Pepper. Nonetheless, aside from Fat chance: she broke Dylan’s heart, jerked or disrupt the practice of making available every unpublished him around and folk music would never be law and, more importantly, the decision by the U.S. magistrate judges in the same again. Keep your “Diamonds and viability of our system of justice. the southern district of Indiana, it is hard to Rust.” Imagine Thurgood Marshall being regard that development as progress in the asked during his computerized research Over the past three decades, the legal evolution of justice. in the Brown case, “Maybe you would system and profession have had plenty Artificial intelligence can certainly like to download Plessy v. Ferguson?”) of experience with both technological contribute to the dispensation of justice, The adaptability of our legal system to disruption and alleged “innovation.” The but we run the risk of conceding too largely unpredictable societal change has heroic efforts of both practitioners and the much of the process to what only appears traditionally been one of its strengths, courts to wrestle with these issues have to be a smarter, more logical and better- earning law the reverential compliment certainly produced a mixed bag in terms informed decision-maker. Some Canadian of being the true game-changer. And the of results, with unintended consequences, jurisdictions already permit their citizens to pursuit of justice is a game of the highest

4 Nevada Lawyer October 2018 importance, best left to those with human Southern Nevada’s go-to business experience, human intelligence and banking resource. capabilities, and human emotions. bankofnevada.com | 702.248.4200 This concern is not merely hypothetical, or an example of old- fashioned resistance to change. Every time we have surrendered some portion of the adjudicatory process to formulas or technology, the byproducts have been expensive, exclusionary or controversial. Witness the widespread dissatisfaction with mandatory minimum sentences, the U.S. Sentencing Guidelines in the criminal field and the barriers to middle class BUILDING A access to justice posed by eDiscovery costs in the civil arena. If we, as legal professionals, are not vigilant regarding STRONG CASE FOR changes that dehumanize the dispensation of justice, there will soon be no justice to BUSINESS SUCCESS. access. As a cautionary tale, it is important to note what happened when we entrusted a large portion of the nation’s political discourse to social media and its brilliant and technologically talented founders and designers. The public square may never be the same again. So, let us approach claims of technological progress and innovation with the healthy skepticism we as lawyers apply to most claims and assertions we encounter. In recent years, I have been attending conferences where people and companies have been singing the praises and virtues of “disrupting the practice of law.” The disruption that they champion usually boils down to (1) putting someone different in charge of an institution or group (usually the For the third year in a row, Western person suggesting the disruption), or (2) Alliance ranks in the top ten on exercises in making money from legal Forbes’ list of America’s Best Banks services without actually being lawyers - taking the #2 spot for 2018. or being bound by legal ethics. Neither of these “disrupting” trends are particularly positive, nor inevitable. As with all other representations and concepts flavored with jargon (i.e. “innovation,” “game changer,” etc.), the legal profession needs to evaluate each change on its own merits, seeking to insure that the siren Serving the Northern Nevada business song of supposed technological progress community since 1999. does not divert us from guarding and improving the best justice system the firstindependentnv.com | 775.828.2000 world has ever seen: real justice for real people, administered and determined by real people. That remains our mandate as attorneys. It is also where our greatest original contributions can be made. Our value added, in technological terms. First Independent Bank and Bank of Nevada are divisions of Western Alliance Bank. Member FDIC.

October 2018 Nevada Lawyer 5