The Future of Wrongful Dismissal: AI in the Practice of Employment Law

Legal professionals from some of Ontario’s leading sole practitioners, boutique firms, and full-service firms gathered in October 2019 to discuss the future of wrongful dismissal in the context of rapidly advancing legal technology.

Christian Paquette of Fasken, Katherine Ford of Sherrard Kuzz LLP, and Ellen Low, founder of Ellen Low Employment Law, engaged in a lively panel discussion about the interaction between technology and current legal practice, as well as how professionals might expect the area of law to develop in the future given the current pace of legal tech development and adoption. The session was moderated by Blue J Legal’s CEO, Benjamin Alarie, who holds the Osler Chair in Business Law at the Faculty of Law in the University of Toronto.

The event also featured a presentation by Professor Anthony Niblett, co-founder of Blue J Legal and the Canada Research Chair in Law, Economics & Innovation at the Faculty of Law at the University of Toronto.

This article will cover the highlights and larger questions that arose at the event, including:

  • Can using insights uncovered by artificial intelligence lead to a better legal system?
  • How has legal technology changed the way that legal professionals practice law?
  • How has the practice of law changed in recent years in response to external pressures?
  • To what extent do legal professionals have a duty to adopt new technology?

Turning the Law into Zeros and Ones

“Better information helps lead to better predictions which, in turn, can create a better legal system,” presented Niblett.

Taking the question of reasonable notice, he leveraged Blue J Legal’s proprietary database of reasonable notice cases to provide the event’s attendees with a sense of what better information in the legal context looks like: data-driven insights into what’s happened in reasonable notice since 1997, including which factors are important and which factors may not be so important, according to the data. Armed with “better” information, practitioners are, in turn, able to make better predictions about how a judge would rule on a given case if it were to go to court.

What happens when we have better predictions? Niblett predicts that we’re likely to see an increased likelihood of settlement of disputes. In fact, better information can reduce the likelihood of disputes, full-stop. “At the time of an employee’s dismissal, employees now have much greater clarity about what it is they’re entitled to, and employers have greater certainty over what offers to make.”

Access to artificial intelligence need not be limited to the parties of a dispute. The technology could also have a place in judicial decision-making. After all, judges make predictions, too. If judges one day receive predictions using artificial intelligence, the question remains: what will that meeting of judicial decision-making and artificial intelligence look like?

Niblett posited that between allowing AI algorithms to make the ultimate decisions or judges using no data whatsoever, there are a number of options such as the algorithms suggesting notice periods or the judges getting descriptive data.

As to the question of what the intersection between artificial intelligence and judicial decision-making will look like, Niblett concluded, “where we draw the line remains to be seen.”

How Legal Tech is Transforming the Industry

While Professor Niblett delved into the realm of what the law could look like in the future with the use of artificial intelligence, we asked our panelists to share with attendees how legal technology has already changed the way that professionals practice law.

Paquette noted greater accessibility to research and decisions as one of the changes that he’s witnessed in the practice of law. Technology has also changed how practitioners interact with junior lawyers for the purpose of preparation. “The material that we find on products like Blue J Legal’s products is a very good checklist, for one, and it’s a good, I will even say, educational tool,” he pointed out. This makes preparation easier and makes it easier to have certain conversations with your client.

Moreover, Paquette also pointed to technology’s ability to speed up legal research as another change in how the law is practiced. Legal tech allows practitioners to gain quick insights into a case before delving further into legal research: “You can have a preliminary view of a case in a heartbeat.”

For Low, legal technology has meant using more data and analytics in her practice, as clients increasingly want that assurance from their lawyer. When preparing for a mediation, Low now takes data with her. “The biggest’s being able to take a broader subset or a broader set of analytics and saying, ‘You don’t have to take my word for it, look at the actual data and let’s at least get into a reasonable range.’”

Ford recalled that an increased access to decisions meant that lawyers might go to mediation and potentially to trial with “reams and reams of cases.”

“It was like access had removed our ability to be selective.” But now, with predictive analytics, practitioners don’t necessarily have to engage in that practice for the purposes of mediation, negotiation, and settlement.

Recent Challenges in Practice: Rising to the Occasion with Legal Tech

Continuing on the theme of changes, we asked our panelists to share how they’ve seen their practice change over the last 5 years from various pressures, whether from clients, the firm, or the market more generally.

Paquette noted that one of the developments in practice includes the prediction of costs. He pointed out that there are already a few decisions in which judges have looked at how much people have been spending on research to prepare for a case, “and what tools they used or didn’t use had an impact on... how much money [judges] awarded in terms of costs.” One such case is Cass v. 1410088 Ontario Inc., 2018 ONSC 6959.

Increasingly, practitioners are also able to better strategize due to having more data and an ability to predict the outcome of a case. “We know how much certain cases are going to cost,” Paquette said. He predicted that in the future, firms may enter into more fixed-fee arrangements with clients. “Law firms are going to take on perhaps more risk in that regard, although if it’s well-supported by data, there’s not as much risk.” In turn, clients will have the benefit of knowing their costs sooner.

Low discussed how access to better technology has led to her relationship with clients evolving to include more time for the business of law, such as working with the client to devise a strategy and analyze risk. “With the use of technology, where I’m not having to have to hand mark-up documents, I’m not having to do the research by hand…. That, in theory, should free me up and, I think to some extent, it does free me up to focus more on the actual business of law.”

Low also noted that legal technology helps her meet increasing client demands: “[Clients] want more certainty, they want more value for money. They want more speed and they want more efficiency. The way in which I can integrate technology into my practice makes my life a lot easier.”

Legal Tech: a New Professional Obligation?

Ford noted that there is currently no professional requirement in Ontario to understand legal technology, in contrast to the U.S., where the American Bar Association recommended a requirement that, as a component of their competency, “lawyers must educate themselves on electronic legal research tools and the benefits and risks associated with using those types of internet and other resources.”

Canada, however, may not be so far behind. “[The law societies] look like they may be moving that way,” noted Ford, pointing out that the Law Society of Ontario, for example, has a technology policy recommending “that lawyers consider internet resources and electronic legal research tools when fulfilling their underlying competency obligation.

“It’s incumbent on lawyers and it’s incumbent on firms to be continually training and educating all of your lawyers on technology and what’s new and what’s out there.”

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