Impact of AI in due diligence and law practice

Introduction

Technological advancements in law practice have assisted the legal professionals in many ways. Current law practice cannot be imagined without legal technology. Previously, when the legal search engines and databases were unavailable, it would have taken much more time in legal research for case laws. One would have gone to different libraries for research and finally would have found some relevant information. At present, information is merely a click away. With technological advancement AI, machine learning, natural language processing (NLP) have also entered legal field. Artificial intelligence or AI is the capability of machines to emulate human intelligent behaviour.[1] AI can perform complex tasks by applying human intellectual characteristics. Machine learning is the mechanism through which a machine or a computer can improvise its performance by analysing new information and patterns.[2] Algorithm development is one such example of machine learning. Natural language processing deals with human and machine interaction.[3] If computers and humans have alike language then it would be very convenient for the legal professionals to develop software for assistance. With development of these AI technologies lawyers can have ease of work but there is a fear that with the advent of AI the employment might be affected. Benefits might come with certain disadvantage.

Anxiety pertaining to technology

 There is a general misconception that technological advancements will always bring unemployment, however it is pertinent to note that technology as a discipline is in itself a field where workers and professionals are required which in turn might increase the employment rate. At present the anxiety that AI will take over jobs of lawyers is far-fetched. That era is yet to arrive when works of AI would be credible enough without human intervention. Lawyers are often concerned about new technology, probably due to inability to understand it or may be due to the apprehension that the technology might make their jobs obsolete.[4] However more a person understands the new technology, more likely it is to get over with the fear. Prima facie, AI has an impression of something as robots with human deception conquering over the jobs of human and having an ability to develop dominion over the human race. We are oblivious of the fact that these technologies have been developed by humans in first place. Further, AI does not only mean robots, it is a science of computers having the ability to perform certain tasks with human intelligence. AI and other technological advancements have positively transformed the law practice by making research and other tasks convenient and easily accessible. Human intelligence used in the review of documents, proofreading, due diligence, etc. cannot be replaced, though mere assistance of AI can be used. It is pertinent to note that AI will create jobs in the field of technology which in turn would increase employment. AI cannot interact with clients by understanding the issues or argue in court of law. Credibility of an individual is more than AI as AI is the creation of humans ultimately. Though the next generation lawyers should have certain technical skills as well.

Contemporary fields of AI usage

AI is being used for various purposes by the lawyers, due diligence being one of them. Other purposes include automation, legal analytics and prediction technology. Paper would be dealing with due diligence part in an elaborated manner.

1. Automation

Automation is the technology that uses specific rules to carry out tasks on the basis of decision trees that has a pattern which is followed as per the query.[5] This technology is used in advice systems in cross-border acquisitions and financing guide that can give precise overview of legal and financial development in any country. The guides can quickly provide answer to specific queries.[6] Automation technology can also assist in developing drafting systems saving time and cost. However, document creation is considered as general source of livelihood for lawyers. Automated documentation can certainly reduce costs but can affect the employment opportunities. Though automated documents will require a proof read, still it can encroach on many jobs.

2. Legal analytics

Legal research is the skill that is a prerequisite for a successful lawyer. Very general principal methodology is identifying the relevant statutes and the provisions and applying the case law. The analytics technology will be based on software that involves advanced predictive technology like natural language processing and machine learning and it can analyse data from many case documents.[7] Previously, for such information, the research was very time consuming and there was human dependence for prediction of behaviours of particular Judge or Bench for the deciding a case.

3. Due diligence

One of the major tasks of lawyer is to review the documents, fact and exercise appropriate care in carrying out task related to advisory, investments, mergers and acquisitions, real estate work. AI can ease the work related to e-discovery, contract review and background research. Usually, these tasks take a lot of time that can lead to issues of deadlines.

Kira systems is one such company that provides for the AI solutions to the law firms.[8] It automatically extracts and analyse important points from a contract which can be helpful in carrying out due diligence. Apart from due diligence, AI solutions pertaining to compliance, finance, lease abstraction is also provided.

AI in M&A due diligence

The main issue of AI in due diligence is that of its impact on lawyers, whether it will positively impact or not. In due diligence certain steps are essential like background search regarding any pending litigation or financial liabilities and identification of potential risk due to merger.

The main aim of due diligence in M&A is to detect the potential issues that may come up in any transaction. The company acquiring will be requiring certain disclosures form the target company to identify and allocate the risks involved before acquiring the business. Parties to the transaction sign the confidentiality agreement and then the target company provides the relevant documents. Gathering the relevant documents can be a difficult task as there can be different offices or locations from where the document is to be collected. This could also lead to missing out of an important document. Acquirer then sends a list of the documents that are required to be uploaded in the virtual data room, for this target company has to digitise the documents. After the documents have been uploaded, the counsel of the acquiring company reviews the documents and analyse the risks related to pre-existing liabilities and consequences. If the parties have consensus then they sign the letter of intent.

Due to large amount of electronically stored information, background search has significantly changed. Now the information can be searched online, for example regarding pending litigation, the court’s website can be searched and other information about the company can be obtained through the Ministry of Corporate Affairs’ website. Despite information being electronically stored due diligence can be a time consuming and lengthy process. Previously lawyers had to go through thousands of paper documents but at present ESI (electronically stored information) management system can conveniently perform the tasks.[9] This technology can be used in M&A due diligence process as well for disclosure which can be then used in risk allocation and establish further steps.[10] A study conducted by one of the makers of AI due diligence technology, LawGeex stated that AI can be better in finding errors and analysing risk in non-disclosure agreements.[11] Further, it was found in that study that it took about 92 minutes for an average lawyer to review five agreements with 85% accuracy whereas AI reviewed all five agreements in 23 seconds with 94% accuracy.[12] Automation technologies, reflective random indexing can assist in M&A due diligence. In reflective random indexing a system learns to deduce on the basis of previous works.[13] AI and machine learning process can prioritise, classify, organise and identify documents that are to be disclosed according to the business agreement with an increased efficiency and less cost.[14] Major amount of lawyer’s fees is generated due to the investment of expensive hours in document review.[15]

Concerns regarding AI in due diligence

There are two aspects attached to the use of AI technology in due diligence. First, that an individual will be more credible than a machine. Machine is created by humans so in case of error an AI system cannot be held liable. Second important aspect to note is that a human can err in performing tasks but a machine does what it is programmed to do, it can carry out tasks more efficiently so chances of error due exhaustion is very minimal. Ultimately, AI cannot in itself perform tasks in isolation, it is made to assist human not replace them. The client company might have an opinion or a preference regarding the lawyers using or not using AI. Some might prefer AI equipped technology as there is less chance of error and increased efficiency, others on the other hand might go for the regular mechanism that does not include AI.

Software failure and lack of proper training of AI can also lead to missing of vital information and it should be noted that a software being made liable for an error is highly questionable.[16] Further, the sensitive confidential information might be exposed due to the threat of cyber attack and viruses. Furthermore, the question of attorney client privilege might be questioned in certain jurisdiction. Firms opting for AI technology must not be willing to invest only on AI technology but also on appropriate human resource to train such software or else it might backfire the purpose for which it was established. AI can certainly be used as a tool of assistance but cannot replace lawyers.

Conclusion

AI in due diligence and law practice is a field yet to be discovered. There can be different opinion regarding AI in legal profession that it can be cost effective and convenient or will invite unemployment. It is pertinent to note that AI ultimately develops from human mind so the idea of AI replacing human is still a mystery. The technology in the field of law aims to assist the lawyers and not replace them with robots. In medical science, the operation, even of conducted through robotics technology, even then the machine is operated under the supervision of the qualified doctor. Further, even if AI technology affects employment, not all jobs of lawyers can be replaced in near future. Uniform governing law might be required in future for governing AI technology. We are still a long way from robot lawyering era. There are many questions regarding the equal access to the essential technology required for lawyers. The education system for a law degree has to be uniform and technology must be taught to them to cope with the progressive technologies.

† Pursuing BA LLB (Hons.), 8th semester, Institute of Law, Nirma University.

[1] Intelligence, Merriam Webster Dictionary.

[2] Machine Learning, Merriam Webster Dictionary.

[3] Dr Michael J. Garbade, A Simple Introduction to Natural Language Processing, Becoming Human,  (13-6- 2020, 10:02 a.m.), <https://becominghuman.ai/a-simple-introduction-to-natural-language-processing-ea66a1747b32>.

[4] Brandy Jo Lea and Prof. Kevin P. Lee, Artificial Intelligence in the Legal Profession, Campbell Uni. J. (December 2018).

[5] Thought Leadership, Artificial Intelligence and the Future for Legal Services (13-6-2020, 01:05 p.m.), <https://www.cliffordchance.com/content/dam/cliffordchance/briefings/2017/11/artificial-intelligence-and-the-future-for-legal-services.pdf> at p. 4.

[6] Id.

 [7]Supra Note 4.

[8] Kira (14-6-2020, 11:05 a.m.)  <https://kirasystems.com/>.

[9] Ben Klaber, Artificial Intelligence and Transactional Law: Automated M&A Due Diligence, UMIACS (14-6-2020, 2:00 p.m.), <http://users.umiacs.umd.edu/~oard/desi5/additional/Klaber.pdf> p. 1.

[10] Id.

[11] Joe Dysart, AI Removes the Drudgery from Legal Due Diligence, ACM News (14-6-2020, 5:10 p.m.), <https://cacm.acm.org/news/233886-ai-removes-the-drudgery-from-legal-due-diligence/fulltext>.

[12] Id.

[13] Trevor Cohen, Roger Schvaneveldt and Dominic Widdows, Reflective Random Indexing and indirect inference: A scalable method for discovery of implicit connections, Journal of Biomedical Informatics 43 (2010) 240-56, <http://users.umiacs.umd.edu/~oard/desi5/additional/Klaber.pdf>.

[14] Supra Note 9.

[15] Justin Evans, Use of Artificial Intelligence During Due Diligence Creates a Global View of a Target Company, Intellectually Jay (14-6-2020, 8:35 a.m.), <https://www.intellectuallyjay.com/2018/02/use-artificial-intelligence-due-diligence-creates-global-view-target-company/conclusion>.

[16] Javier Tortuero, Artificial Intelligence and M&A Due Diligence Current Trends, NYSBA (14-6-2020, 10:46 a.m.), <https://nysba.org/NYSBA/Sections/International/Events/2017/Corporate%20Wedding%20Bells%20CrossBorder%20Mergers%20and%20Acquisitions/Coursebook/Panel%202/Artificial%20Intelligence%20and%20Mergers%20and%20Acquisitions%20Due%20Diligence.pdf> p. 3.