In late September 2018, I went on an amazing adventure to explore the status of legal technology in Latin America. At the generous invitation of the Brazilian government, I traveled 24+ hours (each way) to spend less than 72 hours in the Federal District of Brasilia to attend and present at the 2nd International Congress on Law, Technology and the Government. I don’t recall the last time I learned so much in such a short period of time (or flew so far to do it).
The initial invitation was simply to speak on eDiscovery at an international conference in Brazil. Having too many clean pages in my current passport, and none from South America, I eagerly confirmed. Without much to go on, I offered up the topic of exploring the growth of eDiscovery in the US and the lessons learned over the past 15 years. My suggested topic was received enthusiastically, and off I headed south of the equator.
Nearly every time I leave the United States, I am reminded that we live in a big world with significant cultural and societal diversity, and sometimes it is best to simply check my presumptions at the door.
The primary presumption to fall on this trip: the Brazilian bench and bar are interested in US-style eDiscovery.
As I quickly learned, in Brazil there is no right of discovery in the civil courts, and there is no interest in changing the status quo. As such, in my discussions with several Brazilian attorneys, I confirmed that issues easily predicted with an absence of discovery are rampant, including the dearth of inculpatory documentary evidence. Yet, the same attorneys pointed out that they happily avoid the expense of eDiscovery and their ability to focus their cases on the legal claims and defenses.
So why invite an eDiscovery expert to talk about eDiscovery? This leads to the second presumption: eDiscovery is primary driver of innovation in legal technology around the world.
In the US, we have gotten so used to associating eDiscovery with any discussion related to law and technology, it is easy to assume that the same holds across the globe. But, as I learned, in Brazil, they have a major issue in their legal system requiring the use of legal technology that we cannot even imagine: in the civil courts there is an automatic right of appeal, resulting in over 40,000 appeals last year to the Brazilian highest court: the Supremo Tribunal Federal (“STF”), which is the equivalent of the US Supreme Court.
As I quickly learned from my hosts, the Brazilian judiciary working on several legal technology projects to resolve this crushing appellate caseload, while providing constitutional guarantees of the right of access to the courts. The most interesting project, being run in cooperation with the University of Brasilia and Legal Labs, a spin-off enterprise which sponsored and ran the event, is focused on harnessing machine learning to analyze case filings and create classifiers that will organize cases by fact patterns and applicable caselaw. This project was the topic of several presentations during the conference. But the most interesting discussions occurred off the stage at a series of impromptu informal meetings between the group of foreign speakers who came in for the event (I was one of eight), a handful of Brazilian attorneys, and leaders of the Brazilian judiciary, including Minister Dias Toffoli, President (Chief Justice) of the Supremo Tribunal Federal.
As described by Minister Toffoli and several of his colleagues at the STF, there are a large number of law clerks working diligently to review and summarize cases, but there are simply not enough hours for the full court to consider every case. Preliminary testing has demonstrated initial success at harnessing artificial intelligence, particularly machine learning, to analyze the appellate filings and reduce hundreds of hours of human labor to minutes.
Even as the Brazilian judiciary and its outside partners strive to perfect their algorithm and processes to cut through the paperwork, questions loom. At the most basic level, we discussed issues such as ensuring data integrity and normalizing appellate filings to better facilitate ingestion and AI analysis. But much larger questions were raised in our discussions, including: is it acceptable for the STF and the lower appellate courts to use AI to decide (at least some) cases without any human intervention? Can AI be used to generate a predictive determination for cases to be reviewed by a judge? Can the federal courts use an AI to write a preliminary legal opinion? Each of these brings follow-on constitutional, ethical, and practical questions that must be examined and resolved.
It is easy to think that the US is leading the global pack in developing new technology to solve problems in the delivery of legal services and justice. But this trip reminded me of how that presumption must be challenged. For example, we often hear that courts, particularly state trial-level branches, are suffering from massive, overflowing dockets. Maybe it is time for us to start looking at developing legal technology solutions to these problems, as they are doing in Brazil. We should never stop looking beyond our horizons.
