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ChatGPT: Risks and Rewards for Litigators


While many litigators want to know how new generative AI (GAI) tools will impact their work, they are hesitant about potential ethical consequences. This awareness was heightened by the sanctions imposed on two attorneys in the Southern District of New York for using ChatGPT to write a brief filled with made-up cases. At the same time, trial lawyers don’t want to miss out on the potential game-changing improvements to their practices from using GAI.


Thinking about Risk


Keeping apprised of the benefits and risks of emerging technologies fulfills a lawyer’s duty of technology competence while providing avenues to improve client service and legal workflows. While it is unlikely your bar will sanction attorneys for not using GAI (at least, not yet), in the desire to do things faster and more efficiently using GAI, you need to be careful.


Generative AI: Fiction vs. Fact


Foremost, while GAI tools like ChatGPT are impressive, they have limitations. There is a misconception that they can find or report factual information. However, GAI tools aren’t designed to be factfinders; instead, they excel at producing creative (sometimes fictional) output based on the “prompts” (input and context) provided by a user. This is the lesson learned too late by the two attorneys sanctioned in the SDNY case.


Tools such as ChatGPT can rapidly generate fresh content that is remarkably human-like. You can instruct it to write poetry or prose in the style of a particular author. Just don’t use it to find facts. (Or write briefs.)


ChatGPT warns that it may not always provide accurate responses on the home page.



It may also produce biased or false content (as in the SDNY case). Additionally, it could use segments of content from another source in its outputs without permission. That is why you must review its output before relying on it as source material. At best, it is a starting point or supplement to your work.


Protecting Work Product and Client Confidences


Because of the conversational nature of the prompts, there can be a temptation to tell GAI too much. Both the duty of competence and confidentiality require caution in what information you share to GAI tools.




This information can then be used to train the service, which means it might eventually find its way into someone else’s output. Not good. If you have a paid account, you can turn this off under the Data Controls setting. However, Open AI will still retain your data for at least 30 days.


Some companies, including eSumry, take extra steps to protect your work product and privacy, either by using their own private service language models or having zero data retention arrangements in place with language model providers. Working with these companies offers the best protection of your work product and keeping your data private.


Getting Started with ChatGPT


So you understand the major risks and still want to give ChatGPT a try.

First, you’ll need to set up an account. Open your web browser, go to https://chat.openai.com/auth/login and click “Sign up” to create an account with your email. You can also sign in using your Google, Microsoft or Apple account.


Another option is to install the ChatGPT app on your phone. Just make sure it is the official Open AI app, not an imitator. Here are links for iOS and Android.


After logging in, type your “prompt” into the “Send a message” box at the bottom of the screen.



Draft it like you are giving instructions to an assistant using conversational language. Then click the arrowhead button. Here’s an example in an antitrust case (that doesn’t reveal confidences or privileged information).



A response will be generated as if a person were typing it in real time.



This prompt produced a set of interrogatories with 15 questions. Yours might vary because it rarely produces the exact same output, even with identical prompts. You will also see a “Regenerate” button. Click it to re-write the output to the same prompt.


You can follow up by inputting additional prompts, just as you would continue a conversation. Or start a new chat by clicking “New chat” in the upper left corner.



You’ll see the list of your chats on the left side so you can go back to them, at least until you delete them. As of this post, there is no option to sort or search them.


More Generative AI Options


When used responsibly, ChatGPT can help deliver legal services more efficiently. While it will not replace the nuanced skills and judgment of a lawyer, GAI stands to improve how lawyers practice law.


Some other chatbot tools include:

  • Bard – Google’s internet-connected GAI tool, powered by PaLM2

  • Bing – Microsoft’s search engine is powered by GPT-4 (Edge web browser)

  • Claude AI – GAI tool from Anthropic

  • Perplexity AI – a GAI tool built using Llama-2 from Meta

This list is growing, along with several AI tools that can produce images (e.g., DALL-E, Fotor, Midjourney) and make videos (Chat-D.id, Runway).


We hope this post has been helpful. If you would like to learn more about eSumry and how it can help with your litigation, please schedule a demo at the link below.



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