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Florida Bar Journal

Artificial Intelligence May Assist, but Can Never Replace, the Judicial Decision-Making Process of Human Judges

Featured Article

Artificial intelligence, in its many forms and applications, has become the “latest technological frontier” available to the legal profession.[1] As defined by U.S. Supreme Court Chief Justice John Roberts, in his 2023 Year-End Report on the Federal Judiciary, “At its core, AI combines algorithms and enormous data sets to solve problems.”[2] Although this technological innovation may assist the legal profession,[3] and may potentially increase access to justice, particularly for litigants with limited resources,[4] it is this author’s opinion that artificial intelligence cannot substitute — either in whole or in part — for the wisdom, sound judgment, experience, maturity, impartiality, patience, and informed judicial discretion that must be exercised by a human judge in adjudicating a legal matter.

As is discussed in this article, while new and advanced technology can certainly assist in the judicial decision-making process, it is the human judge that is uniquely qualified to preside over the case and dispense justice without fear or favor. This sobering responsibility cannot be properly performed through the mechanical application of artificial intelligence by a robotic judge.

Judicial practices and procedures are inherently unique to individual judges. Federal Rule of Civil Procedure 83(b), which addresses procedure when there is no controlling law, expressly recognizes, “A judge may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§2072 and 2075, and the district’s local rules.” Accordingly, in the absence of controlling law, judicial practices and procedures may — and often — vary from one judge to another judge even within the same district. Moreover, even the same judge may utilize a different protocol depending upon the unique set of facts in a particular case.

Without exhaustively addressing the plethora of issues that may be addressed by trial and appellate judges from the inception of a case to its conclusion, it is instructive to consider at least some of the issues that may arise before the court and some of the judicial functions that can only be properly performed by human judges.

Case Management

Case management, including scheduling orders, are within the exclusive province of each judge. Although a number of federal and state courts have adopted uniform case management orders throughout the country, these orders may need to be modified by individual judges depending upon the unique facts of the case.

Similarly, in some jurisdictions, a local rule may be temporarily suspended or modified by an individual judge if reasonably necessary to achieve the purpose of the local rules. For example, the local rules of the U.S. District Court for the Middle District of Florida provide, in Rule 1.01(b), “If reasonably necessary to achieve the purpose of these rules, a judge can temporarily modify or suspend the application of any rule, except Local Rule 1.05(a).”[5]

The Court’s Trial and Settlement Procedures

Trial court procedures often vary from one judge to another. For example, with respect to the selection of jurors, some judges may permit counsel to conduct voir dire. Other judges may conduct voir dire and allow counsel to submit proposed voir dire questions.

Judges may also take different approaches with respect to numerous other trial procedures. Judicial practices may differ with respect to such significant issues as how the judge handles opening and closing statements, the procedures for the use of demonstrative aids, the protocols for asserting objections at trial, the ability of jurors to take notes and ask questions either orally or in writing, and whether the judge requires the submission of proposed findings of fact and conclusions of law in bench trials.

The protocols with respect to settlement procedures may also vary among judges. Some judges may have individual policies or practices regarding alternative dispute resolution devices such as mediation and non-binding arbitration.

One of the outstanding resources available to ascertain the protocols and procedures of the individual federal judges, in the state of Florida, is the Guide to Judicial Practices in Florida’s Federal Courts (the Guide). The Guide contains completed judicial practice surveys of numerous federal judges including appellate judges serving on the U.S. Court of Appeals for the 11th Circuit, U.S. district judges, U.S. magistrate judges, and U.S. bankruptcy judges from the Middle, Northern, and Southern districts of Florida. The Guide, available at no cost, is published by the Federal Court Practice Committee of The Florida Bar and is maintained electronically on its website.[6]

Discretion of Courts To Conduct Judicial Proceedings Remotely

The COVID-19 pandemic created enormous and unprecedented challenges in federal and state courts throughout the country. One of the consequences of the pandemic was that many court proceedings began to be conducted remotely. Indeed, a variety of administrative orders were issued in state and federal courts addressing the availability of remote hearings during the pandemic. For example, on March 17, 2020, and in subsequent administrative orders, then Chief Justice Charles T. Canady directed that court proceedings be conducted remotely through the use of technology, when possible.[7] Chief Justice Roberts noted that, with the advent of the COVID-19 pandemic, “[c]ourts at all levels of the judiciary immediately shifted from in-person to remote hearings in civil cases. With the adoption of the CARES Act, many criminal proceedings also shifted online.”[8]
As an outgrowth of the successful use of technology to conduct court proceedings remotely during the pandemic, the Florida Supreme Court adopted comprehensive rules governing remote court proceedings. Under these rules, it is now within the discretion of the court whether to permit remote hearings through the use of communication technology.[9]

Fact Finding Including Determining the Credibility of Witnesses

Fact finding, including the determination of the credibility of witnesses, cannot be properly made through artificial intelligence. Rather, fact finding requires the wisdom, maturity, experience, and sound judgment of a human judge who can visually observe and assess the demeanor and credibility of each of the witnesses that appear before the court. As Chief Justice Roberts has recently noted:

Nuance matters: Much can turn on a shaking hand, a quivering voice, a change of inflection, a bead of sweat, a moment’s hesitation, a fleeting break in eye contact. And most people still trust humans more than machines to perceive and draw the right inferences from these clues.[10]

Interpreting and Applying the Law

The interpretation and application of the law is neither mechanical nor formulaic. Even when the law is well established, there is always the challenge of applying the law to new circumstances and a unique set of facts. Moreover, in a case of first impression, artificial intelligence is particularly ill-equipped to adjudicate the matter and articulate an informed, cogent, and thoughtful analysis.[11]

As Chief Justice Roberts observed, in addressing the impact of artificial intelligence on the federal judicial system, “legal determinations often involve gray areas that still require application of human judgment.”[12] Accordingly, Chief Justice Roberts has astutely predicted that “human judges will be around for a while”[13] and that human judges are not about to become obsolete.[14]

Appellate Judges and Supreme Court Justices Perform Quintessentially Human Functions

At the appellate level, there are also a number of human functions that are required that militate against robotic judges dispensing justice. First of all, as Chief Justice Roberts stated in his 2023 Year-End Report on the Federal Judiciary:

Appellate judges, too, perform quintessentially human functions. Many appellate decisions turn on whether a lower court has abused its discretion, a standard that by its nature involves fact-specific gray areas. Others focus on open questions about how the law should develop in new areas. AI is based largely on existing information, which can inform but not make such decisions.[15]

Secondly, the resolution of appellate decisions often involves oral arguments before the appellate judges. At the oral arguments, the appellate judges may ask questions of counsel that telegraph to the attorneys, as well as the fellow judges on the panel, their concerns and approaches to the matter. This colloquy offers counsel the unique opportunity to address the concerns of the appellate judges and to persuade the judges. It would be extremely difficult — if not impossible — to replicate this invaluable process with robotic judges.

Thirdly, the disposition of the appeal requires deliberation among the appellate judges. Deliberations present a unique opportunity for judges to engage in conversations with each other and to persuade fellow judges to change their point of view.[16] Deliberations also present a rare opportunity to try and facilitate a compromise or decide a case on a narrower ground.[17] These important personal deliberations among the appellate judges, which involve distinct human communications, could not possibly be accomplished with robotic judges.

Finally, at the level of the U.S. Supreme Court, it is sometimes necessary for the Court to consider whether to overrule precedent. This herculean task was most recently undertaken this past term in the landmark case, Loper Bright Enterprises v. Raimondo, 603 U.S. _ (June 28, 2024) (No. 22-451 and No. 22-1219), in which the Court overruled the Chevron doctrine.[18] This extraordinary course of action can only be properly performed through the thoughtful and informed legal analysis of the human justices serving on the Court.[19]

The Preservation of the Judicial System

The rule of law cannot be preserved unless the public accepts and adheres to judicial decisions. As was initially observed by Alexander Hamilton in The Federalist Papers,[20] and has been reiterated by numerous jurists including former Justice Stephen Breyer, the judiciary has no influence over either the sword or the purse.[21] Former Justice Breyer, in addressing the question of “[h]ow can the Court preserve the authority it has gradually obtained over the course of time,”[22] has opined: “We cannot easily reward or frighten our fellow citizens. To obtain their respect, we must rely upon making decisions that reflect both practical wisdom and justice.”[23] The adjudication of a lawsuit by a robotic judge would unquestionably undermine the public’s confidence in, and acceptance of, the judicial system and the rule of law.

Human adjudications are perceived as fairer than any decision that may be generated by a robotic judge. Chief Justice Roberts, in his 2023 Year-End Report on the Federal Judiciary, states: “At least at present, studies show a persistent public perception of a ‘human-AI fairness gap,’ reflecting the view that human adjudications, for all of their flaws, are fairer than whatever the machine spits out.”[24]

Artificial Intelligence Programs Are Fallible

Artificial intelligence programs, although helpful in gathering information, are fallible. The information generated by artificial intelligence programs must be checked and rechecked to ensure accuracy and authenticity. According to Florida Bar Ethics Opinion 24-1, issued on January 19, 2024, which is advisory and not binding, “Lawyers who rely on generative AI for research, drafting, communication, and client intake risk many of the same perils as those who have relied on inexperienced or overconfident nonlawyer assistants.”[25] The advisory opinion further states that “[a] lawyer must verify the accuracy and sufficiency of all research performed by generative AI.”[26]

Chief Justice Roberts has also expressed significant concerns, in his 2023 Year-End Report on the Federal Judiciary, that “any use of AI requires caution and humility. One of AI’s prominent applications made headlines this year for a shortcoming…which caused the lawyers using the application to submit briefs with citations to non-existent cases. (Always a bad idea.)”[27]

Accordingly, the fallibility of artificial intelligence programs, combined with the admonition of Chief Justice Roberts that any use of artificial intelligence requires caution and humility, provides a further compelling reason why robotic judges can never replace human judges at the trial or appellate levels.

The Judicial Appointment Process Requires Selection of Human Judges

The concept of robotic judges replacing human judges is completely antithetical to the well-established process for appointing judges. Article III of the U.S. Constitution, which establishes the judicial branch of the federal government, clearly contemplates the appointment of human judges that “shall hold their offices during good behaviour….”[28] These judges, frequently referred to as Article III judges, are nominated by the U.S. president and confirmed by the U.S. Senate. It is inconceivable, given the requirements and protocols for the appointment of judges, that a machine — in the form of a robotic judge — could ever be selected to serve in a judicial capacity.

Artificial Intelligence Can Assist the Judiciary

Although artificial intelligence cannot replace human judges, this advanced technology can play a potentially significant role in assisting the judicial system. Chief Justice Roberts, albeit recognizing the daunting concerns about artificial intelligence, has observed in his 2023 Year-End Report on the Federal Judiciary that:

Rule 1 of the Federal Rules of Civil Procedure directs the parties and the court to seek the “just, speedy, and inexpensive” resolution of cases. Many AI applications indisputably assist the judicial system in advancing those goals. As AI evolves, courts will need to consider its proper uses in litigation. In the federal courts, several Judicial Conference Committees — including those dealing with court administration and case management, cybersecurity, and the rules of practice and procedure, to name just a few — will be involved in that effort.[29]

U.S. Circuit Judge Kevin C. Newsom, in a recent concurring opinion, has also addressed the issue of “whether ChatGPT and other AI-powered large language models (‘LLMs’) might provide a helping hand,” in Snell v. United Specialty Ins. Co., 102 F.4th 1208, 1222 (11th Cir. 2024). In Snell, Circuit Judge Newsom stated:

I am not — not, not, not — suggesting that any judge should ever query an LLM concerning the ordinary meaning of some word (say, “landscaping”) and then mechanistically apply it to her facts and render judgment. My only proposal — and, again, I think it’s a pretty modest one — is that we consider whether LLMs might provide additional datapoints to be used alongside dictionaries, canons, and syntactical context in the assessment of terms’ ordinary meaning. That’s all; that’s it.[30]

Circuit Judge Newsom further stated in his concurring opinion that he “wholeheartedly” agreed with Chief Justice Roberts, in his 2023 Year-End Report on the Federal Judiciary, that the “‘use of AI requires caution and humility.’”[31] He also emphasized that he agreed with what he understood to be “the report’s assumption that AI is here to stay.”[32]

Finally, Chief Appellate Judge Mark W. Klingensmith has observed that the adoption of artificial intelligence technologies like “GPT-3 is likely to have a significant impact on the future of the judiciary, including both trial and appellate court judges.”[33] According to Judge Klingensmith, some potential effects are: 1) increased efficiency, 2) improved consistency, 3) improved access to information, and 4) enhanced language support.[34] Judge Klingensmith has also recognized, however, that:

it’s important to note that the adoption of AI technologies like GPT-3 in the judiciary would need to be done with caution, to ensure that they are used in a way that is ethical, impartial and in accordance with legal principles. Furthermore, the technology’s limitations and biases must be acknowledged and addressed to ensure that it is not relied upon to make decisions or affect the outcome of a case.[35]

Conclusion

The judicial decision-making process is not a science that can be mechanically administered through a robotic judge. Rather, the judicial decision-making process requires a human judge imbued with the virtues of wisdom, legal acumen, experience, sound judgment, maturity, impartiality, good character, patience, and the ability to conduct court proceedings and all other judicial acts with fitting dignity and decorum.[36] Accordingly, while advancements in technology may certainly assist the judicial system, neither artificial intelligence nor robotic judges can ever replace — or in any way diminish — the need for the innumerable attributes and talents of human judges.

[1] U.S. Supreme Court Chief Justice John G. Roberts, Jr., 2023 Year-End Report on the Federal Judiciary 5 (Dec. 31, 2023).

[2]  Id.

[3] Mark D. Killian, Thomson Reuters Survey: Generative AI Could Save Legal Professionals 12 Hours Weekly By 2029, Fla. Bar News (July 10, 2024): “A new survey of more than 2,200 professionals working across legal, tax, and risk and compliance fields globally predicts generative AI has the potential to free up to 12 hours per week within the next five years, with four hours per week saved in the next year alone. That, according to Thomson Reuters’ recently released 2024 Future of Professionals Report, is the equivalent of adding an additional colleague for every 10 team members. For a U.S. lawyer, the survey says, this could translate to an additional $100,000 in billable hours.”

[4] Chief Justice Roberts has observed: “For those who cannot afford a lawyer, AI can help. It drives new, highly accessible tools that provide answers to basic questions, including where to find templates and court forms, how to fill them out, and where to bring them for presentation to the judge — all without leaving home. These tools have the welcome potential to smooth out any mismatch between available resources and urgent needs in our court system.” Roberts, 2023 Year-End Report on the Federal Judiciary at 5.

[5] Local Rule of the U.S. District Court for the Middle District of Florida 1.01(b) (Apr. 1, 2024).

[6] The Florida Bar, Guide to Judicial Practices in Florida’s Federal Courts, https//www.floridabar.org/directories/courts/fcpc-guide (the Guide is also available by visiting The Florida Bar’s website and selecting the page for the Federal Court Practice Committee (under “Standing Committees”), then clicking on the Guide).

[7] See In re: COVID-19 Essential and Critical Trial Court Proceedings, Fla. Admin. Order No. AOSC20-15 (Mar. 17, 2020); In re: Comprehensive COVID-19 Emergency Measures for the Florida State Courts, Fla. Admin. Order No. AOSC20-23 (Apr. 6, 2020), and as amended thereafter.

[8] Roberts, 2023 Year-End Report on the Federal Judiciary at 5.

[9] As Florida Supreme Court Chief Justice Carlos G. Muñiz stated: “The Supreme Court on July 14, 2022, adopted amendments to multiple rules of procedure and Florida Supreme Court Approved Family Law Forms, which amendments provide permanent and broader authorization for the remote conduct of certain court proceedings. The Court’s action followed the filing of rules petitions by the Workgroup on the Continuity of Court Operations and Proceedings During and After COVID-19 and the Steering Committee on Families and Children in the Court, which determined that permanent, broader authorization for remote proceedings was warranted based on the positive outcomes and efficiencies observed during the pandemic. The rule amendments became effective at 12:01 a.m. on October 1, 2022.” In re: Termination of Specified COVID-19 Emergency Operational Measures to Account for New Rules on Remote Conduct of Court Proceedings, Fla. Admin. Order No. AOSC22-51 at 2 (Oct. 3, 2022) (footnote omitted).

[10] Roberts, 2023 Year-End Report on the Federal Judiciary at 6.

[11] One very recent and notable example of a case of first impression is Donald J. Trump v. United States, 603 U.S. _ (July 1, 2024) (No. 23-939, 2023 Term), wherein the Court addressed “the scope of a President’s immunity from criminal prosecution.” Id., slip opinion at 1. It is questionable whether the landmark decision of the Court on this historic, novel, and complex issue — including the majority, concurring, and dissenting opinions — could have been prognosticated by artificial intelligence, and whether robotic judges could have articulated the analysis and reasoning of each of the Justices who authored an opinion in this precedent setting case. Artificial intelligence, which is based largely on existing information, can inform but not make decisions on open questions about how the law should develop in new areas. See remarks of Roberts, 2023 Year-End Report on the Federal Judiciary at 6. Chief Appellate Judge Mark Klingensmith has also observed, in an article, “our courts are routinely presented with issues of first impression. In such cases, no body of law or bank of written knowledge would be available for [a computer system] to discern the correct outcome in those cases….Without human judges writing opinions, this database would cease to expand. Using [a computer system] as a decision maker would stagnate the law, and ‘bad precedent’ or outdated legal theories would never be reconsidered, revised, or even overruled. Worse, they would be perpetuated. We want judges who possess sufficient life experience, common sense, and ethics to be used in making decisions — something a computer can never do. We also want judges to rely on their professional expertise to decide cases on their merits, while maintaining efficiency, consistency and coherency in their rulings. We expect them to faithfully adhere to statutory text when rendering their decisions. Decisions are respected and followed, in part, because we respect the individuals who issue them.” Judge Mark W. Klingensmith, Computers Laying Down the Law: Will Judges Become Obsolete?, 90 Fla. B. J. 80 (2016) (emphasis in original).

[12] Roberts, 2023 Year-End Report on the Federal Judiciary at 6.

[13] Id.

[14] Id. at 2: “Every year, I use the Year-End Report to speak to a major issue relevant to the whole federal court system. As 2023 draws to a close with breathless predictions about the future of Artificial Intelligence, some may wonder whether judges are about to become obsolete. I am sure we are not — but equally confident that technological changes will continue to transform our work.”

[15] Id. at 6.

[16] Stephen Breyer, The Authority of the Court and the Peril of Politics 70, Harvard U. Press (2021).

[17]Id. at 71-73.

[18] At the outset of the decision, the Court framed the issue as follows: “Since our decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), we have sometimes required courts to defer to ‘permissible’ agency interpretations of the statutes those agencies administer — even when a reviewing court reads the statute differently. In these cases we consider whether that doctrine should be overruled.” Loper Bright Enterprises v. Raimondo, 603 U.S. __ (June 28, 2024) (No. 22-451 and No. 22-1219, 2023 Term), slip opinion at 1. The Court, after a lengthy analysis of the law, concluded that “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority….” Id. slip opinion at 35.

[19] As noted by the Court, “legal interpretation…has been, ‘emphatically,’ ‘the province and duty of the judicial department’ for at least 221 years. Marbury, 1 Cranch, at 177.” Loper Bright Enterprises v. Raimondo, 603 U.S. _ (June 28, 2024) (No. 22-451 and No. 22-1219, 2023 Term), slip opinion at 35.

[20] Alexander Hamilton, The Federalist Papers No. 78 (McLean’s Ed., New York) states in part: “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatsoever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” (Emphasis in original.).

[21] Breyer, The Authority of the Court and the Peril of Politics at 64.

[22] Id.

[23] Id.

[24] Roberts, 2023 Year-End Report on the Federal Judiciary at 6.

[25] Advisory Opinion 24-1 was unanimously approved by the Florida Board of Governors in January 2024. The quoted language in Advisory Opinion 24-1 appears under the heading, “Oversight of Generative AI.” The advisory opinion does not include page numbers. The advisory opinion notes, in describing generative artificial intelligence: “Generative AI are ‘deep-learning models’ that compile data ‘to generate statistically probable outputs when prompted.’…Generative AI can create original images, analyze documents, and draft briefs based on written prompts. Often, these programs rely on large language models. The datasets utilized by generative AI large language models can include billions of parameters making it virtually impossible to determine how a program came to a specific result.” (Citations omitted.).

[26] Id.

[27] Roberts, 2023 Year-End Report on the Federal Judiciary at 5-6.

[28] U.S. Const. art. III, §1.

[29] Roberts, 2023 Year-End Report on the Federal Judiciary at 6.

[30] Snell, 102 F.4th at 1232 (Judge Newsom concurring).

[31] Id. at 1234 (Judge Newsom concurring) (quoting Roberts, 2023 Year-End Report on the Federal Judiciary at 5).

[32] Snell, 102 F.4th at 1234 (Judge Newsom concurring).

[33] Judge Mark W. Klingensmith, Let’s Talk, ChatGPT: What Will the Judiciary’s Future Look Like?, 97 Fla. B. J. 26, 31 (2023).

[34] Id. at 31-32.

[35] Id. at 32.

[36] In addressing the role and responsibilities of judges, the Florida Supreme Court stated in In re Turner, 421 So. 2d 1077, 1081 (Fla. 1982): “Judges are expected to be temperate, attentive, patient and impartial, diligent in ascertaining the facts, and prompt in the performance of a judge’s duties. Common courtesy and considerate treatment of jurors, witnesses, court personnel, and lawyers are traits properly expected of judges. Court proceedings and all other judicial acts must be conducted with fitting dignity and decorum, reflecting the importance and seriousness of the inquiry to ascertain the truth.”

 

Jerry M. Gewirtz is an attorney in Tampa. He has handled complex litigation in federal and state court at the trial and appellate levels. Gewirtz has also served in a leadership position on Bar committees, at the state and local levels, and authored numerous articles for a variety of publications.