Could Robots Write Motions?

Via the Legal Writing Prof Blog, I learned of Ian Gallacher's article, Do RoboMemes Dream of Electric Nouns?: A Search for the Soul of Legal Writing.  Here is the abstract:

This essay considers the possibility that computers might soon be capable of writing many of the documents lawyers typically write, and considers what qualities of writing are uniquely human and whether those qualities are sufficient to render human written work superior to computer generated work. 

After noting that despite the claims of rhetoricians and narrative theorists, not all legal writing is persuasive writing, and that it is in the non-persuasive area of prosaic, functional documents that computer generated documents might gain a bridgehead into the legal market, the essay tracks the development of computer-generated written work, particularly in the areas of sports journalism and corporate reporting. The essay notes that the templates developed to generate these documents can be customized to produce the tone desired by the customer, meaning that both rhetoric and narrative have been captured and transformed into tools that can be manipulated by computer programmers. This in turn means that computer generated documents will not be devoid of rhetorical or narrative interest, making the programs that develop them potentially appealing for lawyers even if they seek to use them to draft persuasive as well as more functional documents. 

What these programs will lack, however, is empathy -- the ability to anticipate what information a reader will need from a document, and when the reader will need it, and to draft a document that meets the reader's needs and expectations. An empathetic human writer knows when to follow and when to break the genre expectations of a document and can send powerfully persuasive messages to a reader by use of that knowledge. 

The essay concludes that empathy is a crucial, and uniquely human, aspect of persuasive writing and that an empathetically-aware written document should be superior to a technically accurate but non-empathetic computer generated document.

Gallacher is pretty optimistic here that robots could not do the job of legal writers.  In some circumstances, I think that Gallacher is correct -- when analogizing a case in the meat of a brief's argument and drawing comparisons between different areas of law, a computer may not be able to grasp the nuances of language required to persuade the reader that there are indeed similarities between one case or area of law and another.

At the same time, other areas of law would not only be better off if arguments in the areas were written by machines, but also if they were judged by machines.  I am thinking specifically about California sentencing law (and possibly the sentencing laws of other states).  From my own experience, I know that when a criminal conviction is handed down, the number of years for the sentence is based on a wide variety of statutory references.  California's Three Strikes law means that prior, qualifying convictions add certain ranges of years onto current sentences (if those prior convictions are given "strike" status by the court).  

After figuring out the range of years for this conviction based on this formula, the court then needs to determine what fines the defendant should pay.  Some of these fines are mandatory and fixed.  Many of them have mandatory minimums, but the judge can exercise discretion and levy a higher fine.  If judges mischaracterize the type of fine they are levying, or levy an amount that deviates from the mandatory range, an appellate court might find that the prosecutor or defendant must forfeit an objection if the judge was mistaken.

After dealing with these technical, tedious sentencing requirements, and seeing many mistakes in sentencing phases, I a compelled to say that Gallacher's criticism of computer-written briefs is overbroad.  I would be interested in seeing steps in the direction of increased automization of briefing and decisions when it comes to criminal sentencing.  Automated briefs (that are properly programmed) could ensure that all of the elements of sentencing are argued -- or at least covered -- and submitted to the judge.  An automated program employed by the judge could ensure that in drafting an order, the judge would include all aspects of sentencing that he or she is required to include by law.

Admittedly, the area of legal writing where robots would excel is, at the moment, a narrow one.  At the same time, robots -- or at least computer programs that ensure the inclusion of all necessary elements -- may be worth considering in areas of the law that are technical, that include numerous mandatory elements, and that must be argued or decided in every case.