Artificial
Intelligence Applied To The Legal Proceedings: The Brazilian Experience
by Daniel Willian GRANADO, Lawyer, Professor, Pontifical Catholic
University of São Paulo, Pontifícia Universidade Católica de São Paulo (Brazil).
Artificial intelligence applied
to the legal proceedings is able to facilitate the processing of these
proceedings and allows the verification of data and information more quickly
and effectively. This technology applied to the judicial system ensures greater
agility in the processing of proceedings through the mechanization of some
tasks previously performed by public servants, which meant more time.
In addition to the mechanization
procedures performed by people, the artificial intelligence applied to the
legal proceedings also ensures the verification of data, providing greater
security with respect to the information provided in the proceedings. One of
the ways artificial intelligence does this is by reading and verifying
documents that are in the proceedings, pointing out possible fraudulent
documents. This not only facilitates defense, it also
prevents the filing of new claims.
On the other hand, artificial
intelligence applied to the legal proceedings guarantees the digital processing
of these procedures, allowing greater access to Justice for the population,
increasing access to information and consequently to decisions rendered by the
Judiciary, ensuring greater control by citizens of the acts executed by the
Public Power, in the judicial sphere.
The application of technology in
the electronic legal proceedings facilitates and expedites the processing of proceedings
with the automation of activities performed by public servants and lawyers.
When filing a case by electronic
means, it is no longer necessary for a public servant to verify the presence of
certain requirements in the complaint and then proceed to file the suit and
refer the case to the competent Court. All this procedure is done by the
systems of the Courts that are in charge of ensuring full operation from the
provision of certain information by the plaintiff.
This automation is not really
about the application of artificial intelligence to the electronic legal proceedings,
since these mechanisms and systems are capable of performing tasks commonly
performed by people for services that do not require accurate reasoning proper
to the human being.
The application of artificial
intelligence in the electronic legal proceedings takes place when programs with
a predetermined database are developed that are able to present different
solutions to achieve the objectives proposed to it in the different situations
to which it is subjected.
Among the examples of the
application of artificial intelligence in the electronic legal proceedings, we
can mention the classification of legal topics as mass or specialized themes,
indicating possible consolidated judicial decisions through the reading of
procedural documents, or even the indication of possible suspension of the claim
considering the existence of an appeal pending judgment by the higher courts
dealing with the legal thesis involved in the proceedings.
Currently, the Federal Supreme
Court tests the Victor Project[1], a
tool capable of accurately and quickly tracking resources that deal with issues
of general repercussion, which are those that have economic, political, social
or legal relevance, categorizing them and selecting all resources that deal
with the same matter, thus allowing the suspension of all these resources to
ensure the simultaneous judgment of all these proceedings.
There is no denying of the
distortion that may occur because it is a system that will analyze procedural
documents and search for certain words, terms or phrases that may mistakenly
frame resources within the general repercussion. It is clear that in such cases
the interested party will be given the right to inform the reasons why his
appeal does not fall within the general repercussion and should therefore not
be suspended.
However, it is undeniable that
the possibility of a program to carry out in five seconds the activity carried
out by a public servant in forty minutes will provide greater agility in the
processing of the proceedings in general, since magistrates will no longer have
to analyze all these claims in detail to take the appropriate measures.
The focus of this article is the
use of artificial intelligence in the electronic legal proceedings to guarantee
the veracity of the documentary evidence. This measure is essential to ensure
that the truth of the facts is attained and thereby ensure better law
enforcement and justice by the Judiciary.
Artificial intelligence is linked to the ability of a program developed
from a given knowledge base, programmed to achieve pre-established goals, to
rewrite its own code through interaction with the environment in which it is inserted.
Artificial intelligence manifests itself when a program, by interacting with a
particular environment, is faced with a different situation, but through its
database it reasons and is able to propose new behaviors and answers, rewriting
the code itself.
Before the development of artificial intelligence, what we had was a
system programmed with a set of instructions that indicated how the system
should react from certain stimuli. The system’s reaction did not change with
the interaction of the environment in which it was inserted. When some event
happened outside of what was programmed, the system, by not knowing how to
respond, would collapse. That is, these systems, although considered as
intelligent, are not endowed with artificial intelligence because they are
developed to reach certain objectives based on pre-established premises and
their answers are always given automatically and previously programmed. Thus,
when inserted in new environments or subject to new situations, these systems
are simply not able to operate and cannot reach the previously established
objectives.
In this sense, the great differential of the artificial intelligence is
that from an initial programming made to present certain results, the system
can present different answers to reach the same result initially intended when
interacting with the environment in which it is inserted. In other words, the
system is placed to rationally make decisions from the information that is put
in its database against the information it perceives from the environment.
One consideration for artificial intelligence is that it is not designed
to think exactly like humans, but to make rational decisions. This is due to
the fact that humans, as a rule, do not make absolutely rational decisions, and
to this day scientists have not been able to unravel or copy the human
reasoning[2].
This means that the use of artificial intelligence in the legal proceedings
necessarily implies the rationalization of judicial acts and processes,
guaranteeing greater rationality to the Judiciary.
Still, in a more instrumental analysis, the use of this technology could
allow the truthfulness of the facts to be reached through the reading and
verification of documentary evidence presented in the legal proceedings.
The electronic legal proceedings
in Brazil was regulated with the advent of Law no. 11,419 of 2006. However, in
2001, Law no. 10,259 was passed, which disciplined the use of procedural
documents without the need to present the original or printed copies of the
proceedings before the Federal Special Courts.
This refers to the electronic and
digital processing of all procedural acts, beginning with the filing of the claim,
a document that must necessarily be digitally signed by a person with advocacy
capacity, followed by the subpoena, summons or notification that may occur
electronically or not.
In any case, any judicial
referral for the performance of the acts in the proceedings occurs through the
judicial systems implemented within each Court, extinguishing the necessity of
transporting proceedings between, for example, judicial offices and divisions,
thereby reducing the processing time of these proceedings.
In order for the electronic
judicial proceedings to take place in a secure manner, it is necessary for each
court to establish identification mechanisms for access to the system, which
may use signing and digital certification or even user registration through the
user- password system[3].
In addition, as will be discussed
further below, it is also necessary to establish ways of guaranteeing the
security of documents presented to the proceedings by both parties and public
servants through the digital signature and certification of the documents
filed.
When entering the study and
analysis of electronic documents and their use as a means of evidence in the
electronic legal proceedings, it is necessary to make some considerations
regarding the concept of electronic document and electronic documentary
evidence to then analyze how artificial intelligence can be applied in these
documents.
It is considered that document is
only what serves effectively to prove facts in the legal proceedings, since it
is a passive source of evidence that presents the necessary reports to prove
the facts without the necessary participation of the parties[4].
The documents are “all beings
composed of one or more surfaces bearing symbols capable of transmitting ideas
and demonstrating the occurrence of facts”[5] as
defined by Candido Rangel Dinamarco.
Thus, a document can be defined
as compounds of one or more surfaces bearing symbols capable of transmitting
ideas that demonstrate the occurrence of facts or manifestations of wills.
As an electronic document,
Augusto Tavares Rosa Marcacini defines it as:
“a digital file, therefore, is nothing more than the logical sequence of
bits, wherever it is reproduced. According to a certain coding pattern, such
bits numerically represent information which, in turn, can only be known from
the intermediation of software, which translates into written words, sounds or
images so that the digitally registered fact can be captured by the human
senses”.[6]
In view of this concept, it is
important to highlight the difference between the material-corporeal document
and the electronic document, in relation to the way it is produced, although
both require a medium (paper in the case of material documents and reader
program of “Portable Document Format” in the case of electronic documents, for
example) to be presented. The former translates into something corporeal and
palpable, while the latter does not.
It is important to emphasize that
a document is not only what is written, that is, a sequence of symbols capable
of transmitting ideas, but we can also consider as documents digital files that
contain media, recordings, videos, audios and photographs.
However, when it comes to
electronic documents, the distrust of the reliability and authenticity of these
documents is pointed out, which is much more related to the cultural resistance
of the people to replace the materialization of documents by electronic means[7].
This is because, although it is believed
that at first only the record of acts and facts in something corporeal is
unalterable, or any change in those records would leave traces[8], with
the development of technologies, it is possible to verify the authenticity of
electronic documents through the use of programs, guaranteeing the electronic
document the same security and reliability of the physical documents.
In order for the electronic
document to be considered legally valid in Brazil, it must necessarily allow
the identification of the author, the location and the date of its authorship[9] and
there should be a guarantee of security as to the totality of the data created,
making changes impossible and the system producing such document must be duly
regulated by the State.
In this sense, to understand how
to guarantee the security and reliability of electronic documents, it is
necessary to analyze, even briefly, the ways in which these documents are
constituted and the mechanisms used to guarantee their authenticity.
One of the ways to guarantee the
security and reliability of electronic documents is the use of asymmetric
cryptography which, in short, translates into a particular way of encrypting
using two numbers that relate to each other, generating encrypted information
that can only be deciphered with the use of the other. One such information is
the so-called public key, which is indecipherable without the use of the other,
which is the private key, kept secret by its owner.
With regard to the use of
asymmetric cryptography, a differential with respect to the possession of the
private key that differentiates the result of the operation is pointed out. If
the private key is kept under the possession of the subject participating in
the relation, this operation is classified as electronic signature and replaces
the representation of the manifestation of the will of the subject in the act.
In addition, it is important to point out that digital signatures will always
be different because several documents will be used as variables in
cryptography.
The digital signature is
conceptualized by Augusto Tavares Rosa Marcacini as:
“the exact
result of a numerical operation in which the document itself – always treated
as a number by the computer – is one of the factors, together with the private
key of the signatory, being possible to check the existence of this logical
link with the use of the public key of the pair.”[10]
Based on this definition, it is
possible to identify a problematic regarding the identification of who the
signatory of a certain document is, since what one has access to is only a pair
of numbers properly encrypted.
Digital certification is the
mechanism used to allow the private key to be linked to a particular person.
This occurs with the validation of the digital signature and the linkage of the
authorship of the document to a given subject simultaneously. In addition, it
can also be defined as an electronic document digitally signed by its issuer,
and what differentiates it from the digital signature is the fact that the
issuer is necessarily a certifying authority that allows to identify the holder
of that public key.
In the scope of the electronic legal
proceedings, all documents submitted by the parties must necessarily be
digitally signed through a digital certificate issued by a certifying authority
or by a signature checked by the Judiciary[11],
being that the latter is given as a rule through login and password via system.
This certification is intended to
publicly attribute the ownership of that document digitally produced to that
subject, that is, it is only capable of proving who the issuer of that
statement is, without checking the truth of the declaration itself.
In view of this, two different
situations arise. The first one, and that is not properly the concern of this
article, is that the certification guarantees to the electronically signed
document the publicity of the authorship and the indication of eventual
alteration of the document. The other situation is that often copies of
documents electronically produced in electronic legal proceedings are presented.
In the latter case, to the evidence, it would be possible to point out the
alteration of that document since it is no longer the original. However, it is
necessary to clarify, right away, that it is not this type of change that is
intended to be identified through the use of Artificial Intelligence in the
verification of these documents, as will be discussed later, because, for
purposes of electronic legal proceedings, they are considered originals[12].
Finally, it should be pointed out
that in Brazil there is already the possibility of transferring an original
document from paper with the registered digitalization that must be done
through a Registry of Deeds and Documents (according to Federal Law no. 6,015/1973)[13].
The documentary evidence is that
which is made through the simple presentation of documents to the records
accompanied by the request of the party intending to use it to the Court. As
soon as the document has been approved, the documentary evidence is produced[14].
The legal nature of the evidence
is the way in which the truth of the facts is ascertained in the Court, the
instrument used by the party to demonstrate the truth of the facts and obtain a
certain result, and the Brazilian law provides the electronic document with the
presumption of veracity[15]
(Code of Civil Procedure, arts. 369 and 374 and Civil Code, art. 225).
Also, when it comes to electronic
legal proceedings, not only documents produced electronically and submitted to
the proceedings are considered as original. Documents that are scanned have the
same evidentiary power as the originals, although the originals of these
documents must necessarily be preserved until the final decision is reached[16].
Assuming that (i) the electronic
documents submitted to the proceedings are considered as originals and (ii)
that the scanned documents have the same evidentiary force as originals, the
use of artificial intelligence programs to identify possible changes in those
documents is extremely necessary to point out fraudulent documents or documents
with malicious changes.
Knowing that the burden of
proving the invalidity of the evidence falls on the one who alleges it, the use
of these technologies is necessary mainly because in the first case we deal
with documents that are encrypted and, therefore, it is practically impossible
to identify fraud, and in the second case, by the ease of scamming scanned
documents.
It is evident that the integrity
of the documentary evidence must meet certain technical standards of collection
and custody to avoid the questioning of its integrity or the claim that it was
obtained through illicit means[17],
which is not to be confused with the questioning of what it intends to prove,
but it cannot be forgotten that the parties can adulterate documents to fit
them cunningly in technical standards even after violating their integrity.
Because electronic documentary
evidence has the presumption of veracity and has for evidential purposes the
same evidential force of the originals, either in case of copy of electronic
documents or copy of scanned documents, technology is one of the most effective
instruments to ensure verification of the integrity and validity of these
documents in a timely manner so that they can be questioned before the Judiciary
in the course of the legal proceedings.
The use of artificial
intelligence in judicial proceedings is capable of providing greater
productivity, quality and efficiency for the processing of judicial proceedings
and consequently of judicial acts, since a machine has the capacity to perform
certain activities at a speed much greater than a person.
However, in addition to the speed
of the machine, there are activities that are impossible for humans to perform,
such as verifying the authenticity of electronic documents that have encrypted
signatures.
It is true that when it comes to
the authenticity of electronic documentary evidence we are not dealing solely
and exclusively with documents that have been produced by electronic means.
Electronic documentary evidence is also considered, those that were digitized
and presented to the proceedings by the interested party.
In relation to such evidence,
what is considered is that the verification of possible fraud by persons could
take a long time, and the need to verify the authenticity of documentary
evidence should be effected in the shortest possible time by the fact that the
falsity of the evidence must be alleged within a period of fifteen days from
the notice to appear in relation to the documents presented in the case, in
accordance with the provisions of Article 430 of the Brazilian Code of Civil
Procedure.
That is, it is clear that the
allegation of falsity of the document cannot be made at any time, if made
incidentally to the proceedings. There is a time reasonably delineated by the
legal systems, by the prevalence of the principle of reasonable length of proceedings
and, therefore, verification of the authenticity of such evidence must be done
at the highest possible speed.
In this sense, the use of
artificial intelligence is crucial to guarantee the accuracy of the facts with
the verification of the documentary evidence, verifying any fraudulent
documents used by the parties to substantiate their requests.
It is noteworthy that fraud in
these documents is common mainly in lawsuits dealing with mass litigation. This
is because, given the large number of proceedings administered by companies or
Offices that litigate with repetitive processes, it is expected that the
falsity of certain documents will not even be questioned.
Knowing that Brazilian law bears
the burden of proving falsity to the party that questions it when it is a false
document (article 429, section I of the Code of Civil Procedure), the use of such
programs by the Offices and by the companies that are usually big litigants in
the Brazilian judiciary is essential to ensure the truth of the facts.
Reaching the truth of the facts
through these programs can take place in many forms. Currently there are
programs capable of verifying whether the documents have changed, pointing out,
for example, whether there has been a change in the digital signature of the
document, since although the digital files are essentially changeable without
this necessarily resulting in physical traces, any changes promoted in
documents protected by asymmetric cryptography would be perceived because there
would be the breaking of the mathematical link of the electronic document[18].
The document’s invalidity, i.e., the
absence or non-existence of authenticity of the electronic document, would be
proven by the lack of correspondence between the public key and the private key
(the document’s own key. Therefore, if the digital signature is valid, this
necessarily leads to the fact that whoever produced that signature used the
corresponding private key and that the document did not change after the
creation of the digital signature, and the inalterability could be,
consequently, the security of the submitted document.
Artificial intelligence can also
be used to compare the information contained in the documents submitted by the
parties as evidence, from personal data to bar codes and invoice launching,
comparing it with the customer database in the company, verifying that the
information presented in the document were effectively launched by the company.
It can be seen, therefore, that
through the use of programs equipped with artificial intelligence to verify the
documentary evidence presented in electronic legal proceedings it is possible
to guarantee greater security to judicial decisions, since through the use of
this technology the truthfulness of the facts intended to be demonstrated by
the evidence presented in the case will be perceived, with the indication of
its authenticity linked to the affirmation of the inalterability of the
evidence.
Ensuring the accuracy of the
facts through the perception of electronic documentary evidence is a way of
promoting access to justice and veracity of the parties’ rights through the
Judiciary.
Dinamarco C. R., Instituições
de Direito Processual Civil: volume III, 7ª ed., São Paulo: Malheiros, 2017.
Marcanici A. T.
R., Certificação Digital, in Estudos
Avançados de Direito Digital, Rio de Janeiro: Elsevier, 2014, pp. 15-28.
Azeredo J. F. A., Reflexos do emprego de sistemas de inteligência artificial
nos contratos, Dissertação de
Mestrado em Direito Civil, 2014, Universidade de São Paulo, São Paulo.
Pinheiro P. P., Direito
Digital, 6ª ed., São
Paulo: Saraiva, 2016.
Teixeira T., Curso
de Direito e Processo Eletrônico: doutrina, jurisprudência e prática, 4ª ed.,São Paulo: Saraiva
Educação, 2018.
[1] “Inteligência artificial: Trabalho judicial de
40 minutos pode ser feito em 5 segundos”, available at:
http://portal.stf.jus.br/noticias/verNoticiaDetalhe.asp?idConteudo=393522,
access on October 26, 2018.
[2] J. F. A. Azeredo, Reflexos do emprego de sistemas de inteligência
artificial nos contratos, Master’s
Dissertation in Civil Law, University of São Paulo, São Paulo, p. 21.
[3] T.Teixeira, Curso de Direito e Processo
Eletrônico: doutrina, jurisprudência e prática, 4ª ed.,São Paulo: Saraiva Educação, 2018, p.
589.
[4] C. R. Dinamarco, Instituições de Direito
Processual Civil: volume III, 7ª
ed., São Paulo: Malheiros, 2017, p.
658.
[5] Ibid, p. 657.
[6] A. T. R. Marcanici, Certificação Digital, in Estudos Avançados de Direito Digital. Rio
de Janeiro: Elsevier, 2014, p. 16.
[7] P.
P. Pinheiro, Direito Digital, 6ª ed., São Paulo: Saraiva,
2016, p. 259.
[8] A. T. R. Marcanici, Certificação Digital, in Estudos Avançados de Direito Digital, p.
16.
[9] T.Teixeira, Curso de Direito e Processo
Eletrônico: doutrina, jurisprudência e prática, p. 190.
[10] A. T. R. Marcanici, Certificação Digital, in Estudos Avançados de Direito Digital, p.
19.
[11] T.Teixeira, Curso de Direito e Processo
Eletrônico: doutrina, jurisprudência e prática, p. 590.
[12] T.Teixeira, Curso de Direito e Processo
Eletrônico: doutrina, jurisprudência e prática, p. 182.
[13] P. P. Pinheiro, Direito Digital, p.
260.
[14] C. R. Dinamarco, Instituições de Direito
Processual Civil: volume III, p.
657.
[15] P. P. Pinheiro, Direito Digital, p.
264.
[16] T.Teixeira, Curso de Direito e Processo
Eletrônico: doutrina, jurisprudência e prática, p. 182.
[17] P. P. Pinheiro, Direito Digital, p.
262.
[18] A. T. R. Marcanici, Certificação Digital, in Estudos Avançados de Direito Digital, p.
19.