136 THE ADVOCATE
VOL. 77 PART 1 JANUARY 2019
the intermediary can insulate the negotiations from the emotionally
charged positions of clients.28
The lawyer brings to the negotiations an impartiality which makes it possible
to consider and suggest compromises that the emotionally involved
client cannot. Negotiations require a flexible attitude and the ability to
anticipate and respond to the adversary’s position or argument. Often, it
involves compromising notwithstanding a strong legal position.
While any computer program is unquestionably “impartial”, it is more
difficult to attach the qualities of flexibility or compromise to even the most
sophisticated artificial intelligence programs. A program such as JUDITH
could no doubt be developed to assist a party in formulating a position with
supporting legal arguments which would form the basis for negotiations.
The computer program could even communicate that position to the other
party, whether by computer link up or by more tradition means. It is even
possible that, if both parties had a computer, their respective programs
could compare positions, and offer alternate compromises. (This approach
to negotiations has been advocated in the labour arbitration field.) However,
it is unlikely that such programs could adjust their original position on
non-legal (or perhaps, more accurately, non-programmed) grounds—in
other words, on grounds external to the issues identified by the program.
This would be the sole responsibility of the layperson/user. Moreover,
although the computer program might be impartial, the layperson/user is
not. Thus, the “insulating” element, the flexibility and the compromise
capabilities of the lawyer disappears in computer-programmed negotiations.
Unless the negotiations were non-emotional, such as those in negotiating
a lease, the computer program would appear unable to perform the
task of negotiation.
It is apparent from the foregoing discussion that there are no artificial intelligence
or expert system computer programs currently developed which
could conceivably replace the lawyer by simulating all the tasks performed
by a lawyer on behalf of a client. However, it is also clear that such
programs can perform some of the lawyer’s tasks: interviewing in noncontenious
matters; providing some legal opinions; preparing simple documents
and simple correspondence. These tasks all fall into the “unilateral
action” category described by the authors of The Lawyers in Modern Society;
examples of such action include the preparation of wills, uncontested separation
agreements or divorces, leases, contracts, trust agreements and conveyancing
documents. It is not hard to conceive that such tasks could be