Major League Baseball (MLB) just signed with the Flat Earth Society. It recently moved to ensure less use of technology in the dugout and game decisions. Essentially, it wants to preclude managers and coaches from using AI during games. So while the league has allowed iPads to be used to access league-provided data, somehow those iPads came equipped with a tab that let the user access, God forbid, AI. So the league disabled the tab. Wait, what?
That’s right. In a sport where data rules, the league essentially decided that nonleague-provided data and AI can’t be used to help make decisions during games. Why? Because MLB reportedly wants decisions on things like substitutions, pitch calling and other in-game situations to be made by humans and only humans as it “traditionally” has. It smacks of a “we’ve always done it this way” attitude.
The whole thing is a little misguided in my book and maybe even counterproductive. Most coaches and managers worth their salt wouldn’t just rely on AI to make game decisions (it hallucinates, by the way). But they would use it as a tool to help them make more informed decisions. And if MLB thinks that just turning off a tab on the dugout iPad is going to keep AI out baseball, they may need to think again. How about phones with ChatGPT access? Smart watches? Smart glasses? Ban all those too? And how would you enforce it?
Relevance To Legal
So what does that have to do with legal? A lot. There’s a feeling afoot to do something similar to what MLB is doing. To try to keep people from using technology in the hope we can go back to or maintain the good old days. Courts demanding that lawyers reveal the use of AI in pleadings. Often without realizing how many AI tools like Google search or autocorrect there are. Requirements put in place that make little practical sense and often result in a lack of respect for the court itself.
And it’s not just the use of AI that is getting the Luddite treatment. A lot of courts outright ban cellphones from the courtroom. Not the use of cellphones but the phones themselves. Like lawyers aren’t going to sneak a peek under the table or look at their smart watches.
Then there is the knee-jerk ban on smart glasses under the theory that someone might sneak a picture. Believe me, there are plenty of ways to sneak a pic if someone wants to. Not to mention the fact that persons with disabilities might need those glasses to function effectively.
Most of these kinds of bans can be easily circumvented, anyway. I was at a concert recently where the performer demanded all cell phones be placed in pouches and checked at a kiosk outside the performance hall presumably to prevent their use for recording, texting, or maybe causing disruption. But they didn’t take my smart watch.
And then you have law schools forbidding students from using laptops in classrooms, thinking, I guess, students might somehow learn better if we just turn back the clock and make everyone take notes by hand. Hmm. If that’s true, then a lot of lawyers out there who used laptops in law school classes might need to head back for remedial learning.
Courts might even follow the MLB example and ban laptops and the use of AI from courtrooms. We could go back to trying cases sans technology altogether. Wouldn’t that be fun for juries?
Bans Don’t Work
I understand the motive. Use of tech tools and AI indeed does have the potential to create problems. But banning things people use in everyday life won’t work. Think Prohibition. Calculators banned in schools. Neither lasted very long, in large part due to the ubiquitous nature of alcohol and calculators in society. Making rules that can’t be enforced breeds disrespect for the rule-making body and calls into question its other rules as well. And the bans often end up getting dropped to reflect reality anyway.
And there is a big difference between rules that govern conduct, as in no secret photos in the courtroom, and rules that ban technology that has the potential to benefit the participants in the process.
And lest we forget, banning technology and AI from courtrooms ends up hurting the lawyers and prevents them from making the best decisions for their clients. Oh yes, the clients, the ones for whom courtrooms and our judicial system were created in the first place.
The point is that rushing to ban technology that almost everyone uses in real life just won’t work. The misuse of technology can usually be prevented with thoughtful analysis and understanding of the technology and how it could be appropriately used.
Bans are an easy and lazy way out. They often stem from rule makers who don’t want to do the work to learn about the technology. They don’t want to take the time to figure out how to prevent bad conduct while allowing technology to be used for good.
Every generation thinks the latest technology is uniquely dangerous. They forget that courts once worried about telephones, photocopiers, laptops, email, and electronic filing. Even the use of videotapes. The challenge is not stopping technology. It’s learning how to use it responsibly.
So let’s not follow baseball and balk at the use of technology. Let’s be careful but thoughtful. Let’s think not just of the risks but the benefits as well. Let the managers use technology tools to make better decisions in the dugout and let lawyers use tools in the courtrooms to better serve their clients.
Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law, and the practice of law.
