Speech by the Master of the Rolls to The Professional Negligence Bar Association - Courts and Tribunals Judiciary
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25th memorial address in honour of Lord Peter Taylor of Gosforth<br>The Honourable Society of Lincoln’s Inn<br>Wednesday 22 May 2024
Damned if you do and damned if you don’t: is using AI a brave new world for professional negligence?
The Right Honourable Sir Geoffrey Vos
Introduction
Many thanks to Victoria Woodbridge for inviting me to deliver this 25th address in honour of Lord Taylor of Gosforth, former Lord Chief Justice of England and Wales, whom we all remember fondly. He died far too young in April 1997.
I have started several recent lectures by reiterating the need for all lawyers and judges get to grips with new emerging technologies in general and AI in particular. AI is changing every profession and every industry fundamentally, not just the law. For professional negligence lawyers, this is indeed a watershed moment.
Professional negligence lawyers may be at the epicentre of the brave new world I have referred to in my title.
As we work out what artificial intelligence should , and what artificial intelligence should not , be used to achieve for individuals and businesses in societies across the world, people will quickly move on to consider liability. That liability will likely arise as much (a) in relation to AI having been used, as (b) in relation to AI not having been used, in any particular situation.
To give a simple example, when, as it can already, AI can help diagnose whether a skin defect is cancerous, doctors may be as much liable for using an available AI tool wrongly, as they might be liable for not using it at all. I will return to this in a moment. I use a medical example because lawyers can be more dispassionate about other professionals. They tend, in my experience, to be more prescriptive, perhaps even didactic, when talking about the use of AI within their own discipline.
There are, I think, two common schools of thought.
The Pros and the Antis
The first school of thought complains that AI is dangerous, that it hallucinates, that it is prone to bias and that it can create inaccuracies that are particularly hazardous for the legal sector. In short, in the legal space, they say, the public needs legal advice and legal decisions from human lawyers and human judges in whom they can have complete confidence. This theme leads to the conclusion that, if lawyers and judges are ever to use AI, they must do so only in the most regulated of circumstances and with the greatest care and circumspection. Since AI can be used for fraudulent fakery, it must be shunned. This same approach can be applied equally to doctors, accountants, architects, engineers, actuaries and almost every other conceivable professional practice and business, but, as I say, lawyers tend to be more concerned to single their own profession out for special treatment.
The second school of thought is quite different. It contends that clients will, sooner rather than later, become unwilling to pay for legal tasks to be performed by a human lawyer, when that same task can be done better, quicker and much more cheaply by an AI. LLMs are about to become far more reliable. They will be integrated with database technology so as to reduce hallucination, inaccuracy and bias. AI can process large datasets, summarise legal materials, undertake legal research and resolve complex problems far more effectively than human lawyers and judges. Whilst there are some inter-personal tasks that humans will still need to undertake, the grunt work will very soon be done by machines. Again, these arguments apply to every other professional practice and business in analogous ways.
What I hope to do in this lecture is to compare these two perspectives and see whether there is a median position. Along the way, I shall try to explain the title I have chosen. For sure, I conclude, there will be problems if you adopt AI hook line and sinker (damned if you do). And for sure there will be equally serious problems if you shun or ignore AI (damned if you don’t). But you may not have thought how professional negligence lawyers will be at the epicentre of the issues thrown up by: (a) the ever-increasing intelligence of machines, and (b) the ever-increasing number of purposes for which machines can be used, and for which consumers and businesses will want, even require, AI to be used.
What professional negligence lawyers do that is special in this context is to look at the law surrounding how other people do their jobs. AI will have a profound effect on how other people do their jobs.
May I start with two points about current developments in AI technology.
Current developments
First, AI is improving and changing very rapidly indeed. GPT 4, even GPT4o, will, it seems, within 18 months, be superseded by GPT 5, which will have surprising new capabilities that...