Last month, new research from Monash University and the University of Gothenburg revealed that for women in tech, AI is more likely to hire them than a human recruiter.

However, while AI may be able to offset gender bias in the recruitment process, legal recruiters told Lawyers Weekly that within law, the human element (and emotional intelligence) remains crucial and were adamant AI tech couldn’t — and shouldn’t — replace them.

Emotional intelligence — or possessing soft skills — has been shown to be important for lawyers for a number of years, particularly as the legal profession evolves in a digital age. These skills can help lawyers connect with their clients as well as collaborate with others for the best possible outcome.

Having high emotional intelligence can also mean stronger working relationships and better mental health. But is EQ being forgotten amid the rise of AI?

Fine-tuning soft skills in the face of emerging tech

The need for emotional literacy and emotional skills has actually increased with the uptake of more digital working practices post-pandemic, something reader in human rights law at the Manchester Law School, Dr Senthorun Raj, confirmed to Lawyers Weekly in April.

“I don’t want to overstate the role of the pandemic because I think doing so often undercuts the fact that this was already happening, particularly for certain marginalised groups and women in particular, in that context,” he noted.

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“But I think we’re in a moment now where there is greater attention to when you’re not physically in a room together, you have to be much more cognisant of the way you communicate emails and the kinds of exchanges you have because it’s easy to depersonalise each other when you’re not in constant interaction. So, I think absolutely, we are having a moment right now where there is greater attention to emotion, and I hope that develops a kind of importance more generally, particularly in the legal education side, for developing emotional literacy and emotional skills as well.”

And despite leaders in the legal profession emphasising that lawyers’ skill sets need to change and evolve with emerging tech, soft skills are also still especially important for lawyers.

If anything, Lander & Rogers chief client experience officer Anthony Kearns told Lawyers Weekly in March, the rise of AI should give cause to reflect on the value lawyers hold.

“The role of lawyers remains critically important because of our ability to deeply listen to clients with empathy, to understand their needs, to affirm their experience and create a solution that gives them clarity and confidence in managing complexity,” he said.

“Human lawyers are more relevant than ever before in assisting clients to navigate increasingly complex social and business environments.”

Flinders University Professor and Dean of Law Tania Leiman said she wouldn’t call these “soft skills” and instead referred to them as professional or human-focused skills but said that for highly competent lawyers, these types of skills are the most important in their toolkit.

“I wouldn’t call them soft skills, I’d call them professional skills, both even human-focused skills. I think that for competent professionals, these are the strongest bits of their toolkit. How they interact with each other, how they can use critical thinking, how they can collaborate with other human beings, how they can engage and build effective professional networks,” Professor Leiman said.

“So, I think that we are seeing that more and more highly competent professionals have really, really solid professional skills. And those are the things that are distinguishing those who are successful — and I don’t just mean financially successful, but really successful in how they do their work — from others.”

Someone lacking in these skills can also have dire consequences both for their clients and the profession generally, Professor Leiman opined.

“The legal profession has unfortunately had a terrible record in recent years around bullying, discrimination, and harassment. Why might that be? One reason among others might be that some people don’t have robust skill sets to enable them to effectively interact professionally; with colleagues, with clients and with other professionals. Why might there be such high levels of mental distress in the profession? Could it be partly because people haven’t understood the importance of managing their own emotional, spiritual, and physical wellbeing? They haven’t understood issues around vicarious trauma and vicarious resilience,” she added.

“So, I think that, that’s just some one example of how these skills really are coming to the fore. And of course, increasingly, in our diverse society, effective lawyers need really high levels of cultural competency, particularly if they’re going to be acting or representing any Indigenous persons. There’s a whole set of Indigenous Cultural Competency skills that most lawyers haven’t even scratched the surface on. It’s important that successful practitioners and senior practitioners continually upskill in this space.”

However, while soft skills will remain essential for lawyers, legal practitioners must also be able to “effectively collaborate with AI-powered tools”, Mills Oakley financial services partner Mark Bland emphasised.

“AI has the potential to enhance lawyers’ soft skills by providing personalised feedback, which can include assessing the tone of their emails, detecting legalese and ambiguity in their advice, and supporting informed and objective decision making,” he said.

“Although AI may eventually augment or enhance most skills, specific skills, such as advocacy and negotiation, will remain predominantly human for some time. Client service will remain a differentiator, so responsiveness, empathy, teamwork and problem-solving abilities and relationship skills will continue to be highly valued.”

These “human” skills also remain important for those using the platform. As Lext founder and head of operations David Turner explained, lawyers spend a large amount of time “solving complex legal problems that don’t have an easy or obvious answer” — something which a chatbot cannot necessarily do.

“While there’s a lot of excitement about ChatGPT (and more broadly, generative artificial intelligence models) at the moment, there’s less understanding about what the technology is truly capable of and how it works. I’ve seen commentary recently about ChatGPT’s ‘problem-solving’ ability, but the important thing to understand about large language models like ChatGPT is that they have no problem-solving ability and no inherent knowledge about anything,” he said.

“AI models like ChatGPT understand patterns in language. The model can ‘read’ a passage of text, break that up into ‘tokens’ — which are words, or parts of words — and then intuit what sequence of tokens would be most likely to come next based on the patterns of tokens the model has seen in its training data. It’s not a search engine — when you ask ChatGPT to answer a question, it isn’t accessing the internet and looking it up for you — it’s generating the most likely plausible sequence of tokens based on your question.

“The answer it generates might be correct, or it might be incorrect, but a large language model will be just as confident presenting a wrong answer as a right one. The accuracy of the answer you get will depend on whether that question and its correct answer appear to be associated many times in the AI’s training data or not. If, as a lawyer, your job is providing well-settled answers to well-settled problems, then you’ve already got a problem that has nothing to do with AI, because your expertise has become a commodity.”

What (if anything) will ChatGPT replace?

Mr Turner’s comments echoed concerns raised around the accuracy of the program, with few lawyers actually trusting artificial tech.

The chatbot has also come under fire for inventing a sexual harassment allegation against Jonathan Turley, who is the Shapiro professor of public interest law at George Washington University in the US, which raised a number of questions around whether defamation claims could be brought against AI technologies.

Therefore, Mr Turner highlighted, generative AI and large language models like ChatGPT “are not going to replace lawyers” as they aren’t currently a reliable source of technical knowledge.

“In the short term, we can definitely expect to get some of our more repetitive, less technical, and less enjoyable drafting work done much more quickly. In the longer term, though, I hope that we see the technical, legal and written communications skills of lawyers used to democratise access to legal information and legal services through artificial intelligence,” he explained.

“As it was with the Gutenberg press, the tractor, and the internet, there’s been much said about the threat of AI to certain jobs, and the harm it might do to us more generally. It’s important to be cautious, and it’s important to ensure that our use of AI is responsible, safe, and ethical, but I’m really excited about the capacity of AI to substantially improve access to justice. According to the Productivity Commission, only around 15 per cent of legal problems ever make it to a lawyer, and then only a minority of those a private practice lawyer.

“Right now, most people cannot get legal help when they need it; but the natural language capabilities of these large language models present an unprecedented opportunity to unlock the information contained in statutes and case law and make that information more available to people who need it.”

Whether AI and other emerging tech can improve access to justice will be dependent on if it is reliable and accessible, as well as if it is prioritised properly within firms and other legal organisations.

When used efficiently, generative AI will replace some legal functions, but will transform others and create new ones, Mr Bland quipped.

“Today, ChatGPT is like a dangerously overconfident trainee lawyer with out-of-date information. While it is only a matter of time before someone creates a GPT model fine-tuned on Australian law that will provide more reliable outputs, lawyers will still need to exercise sound judgement and discretion in interpreting results,” he said.

“In the near term, AI will likely streamline legal functions such as document review, contract drafting, legal research, and some decision making. GPT-based apps may assist in tasks such as drafting legal advice and picking up on unenforceable contract terms.

“For businesses facing heavy regulatory requirements, AI could help improve compliance and streamline the navigation of new obligations, especially in highly regulated sectors such as financial services.”

However, legal practitioners need to continue to be cautious of using the platform, warned Flinders University College of Business, Government, and Law lecturer Dr James Scheibner.

ChatGPT itself is trained on data that users enter. So, if you enter data into ChatGPT, that is incorporated into the training set, which means that there is potential for accidental disclosure of confidential client information, or trade secrets and personal information. This has the potential to be an intellectual property and data privacy nightmare," he said.

“When it comes to our professional duties as lawyers, one of the key professional duties is the duty of client confidentiality. Lawyers need to be very mindful of where client data has been stored, they need to be mindful of mechanisms in order to keep quiet data secure, they need to be mindful of the impact of technologies on legal practice, and how these technologies might influence their own professional obligations.

“And finally, we also need to be mindful of the potential for technology to be used as a tool in order to make a process of working on more, and making more available for the broader community to make it significantly more accessible. And there is a potential for technology to be used in this manner, but it needs to be used cautiously.”

How can lawyers remain relevant moving forward?

For modern-day lawyers looking to the future, failing to adapt to new technology could mean falling behind as industry expectations change and increase.

“Lawyers will still need to review the work done by AI, as it tends to confidently produce incorrect results. For instance, ChatGPT often fails to capture nuances contained in the phrasing of most legislation. Sometimes it is plain wrong,” Mr Bland added.

“Some legal answers generated by AI may be convincing to people who aren’t legal experts. However, a lawyer’s expertise is still crucial in ensuring sound legal advice and accountability, which makes them relevant for the foreseeable future. Generative AI won’t replace your job, but someone using it may. Successful lawyers will adapt by learning to use generative AI in their practice.”

Mr Turner echoed a similar sentiment and added that the legal profession (and the world) is changing regardless.

“Artificial intelligence will change the way your clients work and the way your competitors and colleagues work, whether you change or not and the lawyer who understands the competitive advantages of adopting the technology, and the way their clients use it, will have a better value proposition for their clients than the lawyer who doesn’t,” he added.

Understanding these tools is also paramount for lawyers to be able to use AI ethically and Professor Leiman added that for senior legal practitioners, it’s increasingly important to “actively skill themselves in these areas and continue to skill themselves up as our society continues to change.”

“We need to think about intended and unintended consequences and how they might significantly impact the rights of individuals and other entities. Lawyers are really skilled at asking those questions and identifying where rights are infringed or where obligations might arise. Anyone with legal training can think about how they can bring that legal analysis and critical thinking and problem solving to analysing the space,” Professor Leiman said.

“Lawyers should understand how the technological tools available to us can be used safely and ethically, to streamline processes to reduce costs for clients. If lawyers don’t engage or take the time to understand how the tools that are available now can reduce costs for clients significantly, are they acting ethically, because if they’re continuing to charge clients very large fees, when they could do them much more simply.”

Putting any form of artificial intelligence to the side, however, Professor Leiman stressed that emotional skills are “the skills of the future” and something which Flinders University law students are taught.

“Understanding, empathy, understanding curiosity, understanding critical thinking, being able to show compassion, being able to manage and regulate your own emotional states, understanding things like vicarious trauma, and vicarious resilience,” she added.

“I think increasingly, as people with legal qualifications are working, not just in traditional law firms, but in a huge range of other contexts, these are the skills that get them clients; skills that keep them clients; that enable them to be really successful in advising people and enable them to be a trusted adviser, as well as think more broadly.

“So, there is much more explicit teaching of these professional skills, certainly in our law school, and I think in every law school, than there was 20 years ago. In fact, if a student comes out without those competencies, that just really is not going to cut it particularly well. These are the skills that are really important for people.”