Ex Machina: Technological Disruption and the Future of Artificial Intelligence in Legal Writing

AutoreJohn Campbell
CaricaCo-director of the Denver Empirical Justice Institute at the University of Denver Sturm College of Law (US), where he is also a member of the Lawyering Process faculty
John Campbell is the co-director of the Denver Empirical Justice Institute at the University of Denver Sturm
College of Law (US), where he is also a member of the LawyeringProcess faculty. He gives particular thanks to
Dr. Catherine Durso of the University of Denver for her work on the statistics presentedin this paper. Without
her,this article would not be possible. He also thinks Kensye Woodand Megan Largson, his researchassistants,
for their dedicated work.
2 A
& E
Ex Machina: Technological Disrupon and the Future of
Arcial Intelligence in Persuasive Legal Wring
Technology is disrupting the practice of law and revolutionizing how lawyers work. This
revolution is made more powerful because it is increasinglycoupled with a rigorous and scientific
approach to the law. In some ways, law is looking more like a Silicon Valley startup and less like
the oak-paneled law firms of the last 200 years. As law, technology, and science merge, the
implications for the profession are wide-sweeping. This article explores persuasive legal writing,
offering new thoughts on what the future will hold. Specifically, this article pilots a method for
applying technology and science to measure, analyze and improve persuasive legal writing,
offering it as a proof of concept that anchors the article’s broader, and perhaps more
controversial assertion. Namely, more powerful and refined persuasive legal writing software
tools, fueled by artificial intelligence, should and will disrupt and reshape significant portions of
the legal space, including how legal writing is taught and how it is produced. The effect will be to
view legal writing as more science, and less art. The next set of luminaries won’t rely on anecdote
or intuition to teach or create legal writing; they will rely on software and data.
Legal Technology; Legal Research;Legal Writing; Empirical
Introduction ............................................ 295
1. Technological Revolution in Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
1.1. Examples from Other Legal Settings . . . . . . . . . . . . . . . . . . . . . . . . . 297
1.2. Revolution in Legal Research and Writing Too . . . . . . . . . . . . . . . . . . . 299
2. Demystifying Persuasive Writing through Technology . . . . . . . . . . . . . . . . . . . . 303
2.1. What the Legal Writing Experts Say . . . . . . . . . . . . . . . . . . . . . . . . . 305
2.2. Early Empirical Research Regarding Legal Writing . . . . . . . . . . . . . . . . 307
2.3. Focus on Judicial Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
2.3.1.Intensifiers.................................... 309
2.3.2.Readability.................................... 310
3.ThePilotEmpiricalStudy.................................... 312
3.1. United States Supreme Court Briefs are Simpler . . . . . . . . . . . . . . . . . . 316
3.2. Writing Style Correlates to Winning . . . . . . . . . . . . . . . . . . . . . . . . . 319
4. Improving the Method and Tools Available . . . . . . . . . . . . . . . . . . . . . . . . . . 321
5. Implications for the Profession in the Future . . . . . . . . . . . . . . . . . . . . . . . . . 322
Conclusion ............................................. 325
Empirical legal writing studies, powered by new technologies, will fundamentally disrupt
and revolutionize how we think about persuasive legal writing. This article argues,
through a pilot study that serves as a proof of concept, that, over the coming years, the
fog of advice about persuasive legal writing style can largely be cleared by developing
better tools to measure persuasive legal writing and better methods for studying the
effect of legal writing on outcomes. It argues that, as persuasive legal writing becomes
more science and less art, legal writing software powered by artificial intelligence1will
disrupt a variety of fields, including how legal writers create briefs, the legal insurance
industry, legal finance of cases in litigation, and howlegal writing is taught to students.
We can and should move away from anecdote and assumption, and towards
software and data. For years, professors (including me), legal writing gurus (like Bryan
Garner who has made millions teaching legal writing), and judges (like the late Antonin
Scalia) have talked about “how” to write effectively. But the truth is that this advice is
largely untested – and as some law students would gladly tell you – too often
1A.I. is an umbrella term that coversa range of technologies that learn over time as they are exposed to more
data. P
., A
(Little Hoover Commission 2018),
https://lhc.ca.gov/sites/lhc.ca.gov/files/Reports/245/Report245.pdf. A.I. is the quality of any computer
system (data, algorithms, analytics, bots, etc.) the ability to sense, reason, adapt, learn, and understand just
like humans can. Id. In the deeply developed sectors, A.I. technology can encompass the ability to reason
through to conclusions and learn to adapt specific outputs or behaviors to circumstances. Id.
For years, I have told my law students that if you were to put ten world-renowned
appellate lawyers in a room, gave them the same legal problem,and then had them write
briefs, those briefs would be profoundly different. To be fair, some of this variation is a
result of options in the legal analysis sphere. But assume for a moment you gave the
attorneys the same cases, the same strategy,and the same frames. Assume youeven gave
them the general order in which the arguments would be presented. The briefs would
diverge nonetheless. The writing style among the briefs would vary, sometimes
significantly. To fully understand this notion, you only need to read a few briefs for the
United States [hereinafter U.S.] Supreme Court. World-renowned attorneys with proven
track records take markedly different approaches in their written advocacy, so much so
that their styles are a sort of fingerprint and the author can be guessed by the style and
tone alone.
The same variance occurs if you put ten legal research and writing professors in
a room. Within my own department, we have engaged in rigorous debates about how
students should be taught to write during our monthly meetings. We all think we know
the “truth” about what lessons or writing methods work. The picture is no different if you
read books on legal writing, or if you attend conferences dedicated to the art.
Why are there such marked disagreements? The pat answer is that legal writing
is complex, and personal preferences dominate. We might even say authors have to be
themselves, and find the approach that works for them. I take a different view. We see
variance in what people treat as “good” legal writing because we suffer from a severe
deprivation of data. Like ancient people performing rain dances because their
understanding was limited by the availability of knowledge, we argue about what
“works” in persuasive legal writing because we do not actually know. Sure, we have
hunches. And to be fair, some of these are formed over years of experience,making them
more like educated guesses or very crude statistical inferences. But there is little hard
data upon which to draw any salient conclusions. And absent hard data, the best we can
do is guess.
Law students reading this might be nodding along as they have sensed the
inherent ‘squishiness’ (to use a technical term) of the advice their law professors give.
Similarly, associates forced to write for more than one partner may too smile in
agreement, as they have been forced to write in two styles to please two partners – both
of which are sure they know how a good brief is written. Or maybe even the professors
are quietly agreeing, as they have read books like Garner and Scalia’s co-authored book
on writing, Making Your Case: The Art of Persuading Judges, in which the authors openly
disagree on a variety of stylistic choices.

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