AI should serve family provision litigation, Supreme Court judge says

By Naomi Neilson|14 November 2019

With artificial intelligence becoming a major player in central, everyday services, such as banks, insurance companies and accountants, there is no reason why the legal profession should shy away from the benefits of the new technology.

That is the sentiment of Justice Francois Kunc of the NSW Supreme Court, who recently referred to a study which found that artificial intelligence (AI) had a higher success rate in predicting decisions than human legal experts in a speech delivered at the annual dinner of accredited wills and estates specialists at the Union, University & Schools Club.

Although he said AI cannot replace all legal services due to the need for a “human element”, it can make litigation like family provision much more effective.

“AI could assist parties in reaching a possible resolution in their matter in a much faster way than going through the court, thereby reducing costs and avoiding the emotional hardship which inevitably comes with a hearing,” Justice Kunc said.

Since 2001, AI has been used in the American state of Idaho to assess factual inputs to determine judgements and court orders. In one study, AI demonstrated it stimulates judicial reasoning by predicting judicial outcomes almost better than human experts.

“This research has shown AI can be used to identify cases and extract patterns which correlate with certain outcomes. This information can subsequently be used to develop indicators for successful claims which may eventually prioritise the decision-making, suggesting that rather than replacing judges, AI could assist,” Justice Kunc said.

Justice Kunc said the final call on any asset decision would still be one for the parties to work out, “however, this program gives the parties a possible solution which could be palatable to everyone involved”. It’s still being developed to understand the human element of decision-making, however, progress is being made.

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In the Northern Territory, one lawyer addressed the shortage of legal services with the opening of a law firm that could operate solely on AI and administrative assistants. Its clients can enter information into the AI and be provided with advice or documents. In some cases, AI is used for contractual analysis and large due diligence exercises.

Justice Kunc said the Federal Court of Australia is in the process of creating machine learning proof of concept which can be applied in family law contexts. The system has been designed to assist with property settlements and takes into consideration a series of factors, including age, income, length of relationship and children involved.

AI “clearly has its limits”, Justice Kunc added. He noted, however, that family provisions is a suitable forum for AI and could benefit litigation the same way judicial settlements have due to ease of determining “mechanical assessment” based on objective facts.

“There are very strong public policy reasons for this type of litigation to be disposed of as inexpensively and efficiently as possible, consistently with doing justice between the parties. Those same considerations urge the encouragement of early settlement. The judicious use of AI could facilitate both objectives,” Justice Kunc said.  

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AI should serve family provision litigation, Supreme Court judge says
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