This article expands on the argument I presented in “Cultivating judgment” (Journal, October 2015, 18) that, while the “commoditisation” of legal services is reducing the amount of low-risk work that trainees can be tasked to complete to develop their proficiency and confidence in the core skills of lawyering, clients continue to need their solicitors to provide solutions to complex legal problems in a cost effective way by exercising their professional judgment.
Listening to Radio 4’s Law in Action earlier this summer (“Artificial Intelligence and the Law”, 7 June 2016) caused me to reflect on the continued topicality of “judgment”. It discussed research being carried out by the University of Liverpool’s Department of Computer Science to determine a method of designing and implementing programs intended to decide cases by applying the relevant body of case law. In particular, it considered 32 USA appellate cases, with the computer predicting the same decision as the judges in 31 of them.(1)
As lawyers, we will be reassured that this appears to confirm that the legal method of judicial decision-making at appellate level is based on an objective assessment of the relevant law as researched and presented by experienced lawyers. However, we are also aware that the weighing of evidence is an “art” rather than a “science”, particularly when it comes to credibility and context.
What is “judgment”?
Interestingly, many experts agree with us. For example, John Dewey, who, in the early part of the 20th century wrote about how people reason, argues that: “To be a good judge is to have a sense of the relative indicative or signifying values of the various features of the perplexing situation; to know what to let go as of no account; what to eliminate as irrelevant; what to retain as conducive to outcome; what to emphasize as a clue to the difficulty. This power in ordinary matters we call knack, tact, cleverness; in more important affairs, insight, discernment. In part it is instinctive or inborn; but it also represents the funded outcome of long familiarity with like operations in the past. Possession of this ability to seize what is evidential or significant and to let the rest go is the mark of the expert, the connoisseur, the judge, in any matter.”(2)
In the context of the training of professionals, Michael Eraut, an expert in early career learning, employs the example of a “wise judge” in his analysis of how professional competence is developed, offering that: “the interpretive use of knowledge… plays some part in that mysterious quality we call ‘professional judgment’… [it] involves practical wisdom, a sense of purpose, appropriateness and feasibility;… its acquisition depends… on a wealth of professional experience… On the one hand, we expect the wise judge to have had a sufficient range of experience to ensure a balanced perspective, to prevent “overinterpretation” from the experience of only one or two previous cases of an apparently similar nature. While on the other, we expect an intuitive capacity to digest and distil previous experience and to select from it those ideas or procedures that seem fitting or appropriate.”(3)
Richard Posner, based on his experiences as a judge in the USA, illustrates the importance of combining thinking, feelings and context by describing “good judgment” as: “an elusive faculty best understood as a compound of empathy, modesty, maturity, a sense of proportion, balance, a recognition of human limitations, sanity, prudence, a sense of reality, and common sense”.(4)
Allan Hutchinson, a Canadian law professor, emphasises the importance of its ethical element by proposing that: “To provide sound professional judgment, it is necessary to resort to a well-honed and mature sense of moral acuity. Unless one subscribes to a very formalistic account of law, a familiarity with and sensitivity to moral issues is an essential quality that all lawyers must have if they are to advise clients about any particular area of law or what the courses are likely to be in any particular case. Without such resources, lawyers will be ill-equipped to fulfil the most basic skills of legal representation; they become only technicians, not advisers.”(5)
So it would appear that there is general agreement that the exercise of professional judgment involves a complex blend of technical expertise and empathic understanding and requires the application of specialist knowledge and ethical codes in the context of the particular situation of individual clients. Its complexity can be demonstrated if we now move on to consider what is involved in its constituent steps.
The client's real options
The following table summarises each of these.
The first step involves sourcing accurate factual information about the circumstances of the situation, including what the client ultimately wants to achieve so as to agree a clear brief. Once this been obtained, it is necessary to sort what is relevant from what is irrelevant to establish the specific facts of the matter. Based on these, the actual problem can be identified and defined and this, in turn, determines the applicable technical knowledge that needs to be sourced and interpreted. Applying this to the established facts may disclose gaps in the information currently known, indicating that additional investigations are needed. For example, the detailed requirements of the technical knowledge may only apply in certain circumstances and whether this is the case will need to be investigated with the client. This may, in turn, create a need to revisit the relevant facts and technical knowledge.
Only after all of this has been completed, is it possible to move on to identifying and developing the available options. These have to be matched to the client’s objectives and their respective risks and benefits assessed so as to determine those that are viable. In addition, they need to be checked against professional regulatory codes and rules and revised, if required.
After completion of this analysis, all of the final options have to be communicated effectively to the client, including the potential advantages and disadvantages of each, so that he or she can make an informed decision. This is likely to involve discussing, testing and clarifying the client’s understanding of the options in relation to his or her objectives, resources and timescales so that the final choice reflects what is both desirable and possible to achieve. This step may identify some inaccuracies of fact or changes to the client’s requirements that require an adjustment to the brief, the relevant technical knowledge and available options. Once all of this has been done, it is then possible to agree the final selection with the client and, based on his or her specific instructions, for the professional to take the actions required to implement it.
This description of the individual steps involved in the exercise of professional judgment may make it seem a long and laborious process, yet in practice, practitioners through experience, learn to do this quickly and with considerable proficiency when working in an area in which they have expertise. To be able to cope with all of this requires personal confidence as well as the relevant skills, such as critical analysis, risk assessment, client interviewing, decision-making and project management. As a result, I would argue that only some aspects are capable of being partly completed by IT systems. An illustration of this can be seen in Atul Gawande’s(6) excellent series of books about decision-making by surgeons. These emphasise that the introduction of processes into operating theatres where checklists are used to avoid routine mistakes must also allow for individual judgment at key stages.
I hope that this article reinforces what I believe is the essential importance of professionals continuing to exercise their judgment in relation to providing a service that our clients value, and that we should be wary of attempting to “commoditise” this aspect of our work. To do so will not serve our clients well as they rely on us to provide unique solutions to their particular problems. I would suggest that it will also take away from our ability to develop as a profession, as it is through our “judgment calls” that we push out the boundaries of established practice and refine and improve what we do. If we “lose” our judgment and allow the core work of lawyers to be replicated by IT processes, we risk being replicated ourselves.
(1) L Al-Abdulkarim, K Atkinson and T Bench-Capon, “A methodology for designing systems to reason with legal cases using abstract dialectical frameworks”, Artificial Intelligence and Law, Vol 24(1) (2016), 1-49.
(2) Dewey, J, How we think (Boston: D C Heath & Co, 1910), 104.
(3) Eraut, M, Developing Professional Competence and Knowledge (London: Falmer Press, 1994), p 49.
(4) Posner, R (2008) How judges think (Cambridge: Harvard University Press), 117.
(5) Hutchinson, A C, “Legal Ethics for a fragmented society: Between professional and personal”, International Journal of the Legal Profession 5 (2-3) (1998), 175-192 at 187-188.
(6) See, for example A Gawande, The Checklist Manifesto – how to get things right (London: Profile Books Ltd, 2011).
In this issue
- Beyond the named person service
- Sexual harassment: an everyday problem
- Governing Scotland in a federal United Kingdom
- Losing our judgment? (1)
- Reading for pleasure
- Opinion: Alison Reid
- Book reviews
- President's column
- The future, step by step
- People on the move
- Changing face of the courts
- Success: the chimp factor
- Courts reform: a call to pre-action
- Teeth that could be sharper
- Good claims, bad lies
- Unlocking doors: demystifying squatting
- Back to basics
- Brexit and IP: what should solicitors be doing now?
- Agency, insolvency and termination
- Brexit and the agricultural sector
- A carnival for some, but not for others
- Scottish Solicitors' Discipline Tribunal
- Culling of the hybrids
- Common property: what policy?
- Cause of action
- Client balances: reminder issued
- Law reform roundup
- From the Brussels office
- Paralegal pointers
- Your Law Society of Scotland Council Members
- At the doors of the court
- Ask Ash
- To the focused, the medals
- Losing our judgment?
- MacKenzie boosts Society's AML drive