In the evolving world of legal technology, generative artificial intelligence is emerging as a game-changer, especially in litigation. Known for its high stakes and intricate complexities, litigation is experiencing a paradigm shift with the advent of AI tools built with Large Language Models from companies like OpenAI, Anthropic and Meta.
The critical questions that arise are: How do clients, as the beneficiaries of legal services, perceive this technological marvel? Are they in favor of their trial lawyers harnessing the power of generative AI? In this post, we explore client attitudes, dissecting the benefits, challenges, and ethical dimensions of using this new AI in litigation.
Generative AI in Litigation
Generative AI has an almost human-like ability to follow instructions to generate text, images, and video. In litigation, applications can function like legal assistants, sorting information from vast document collections, writing summaries, suggesting witness examinations, and predicting potential case outcomes. All of this offers the potential for developing winning legal strategies and – perhaps – avoiding losing ones.
Unlike applications in transactional legal fields – such as drafting contracts – the role of generative in litigation is more nuanced, providing support in argument construction, precedent research, and evidence analysis. This technological leap has the potential to redefine the traditional practice of trial advocacy. But it remains crucial for it to align with the core tenets of our judicial system: truth, justice, and fairness.
In the courtroom, where the human element plays a pivotal role, the use of AI raises questions about the balance between technological efficiency and the art of persuasion. The ability of AI to process legal information at unprecedented speeds offers a significant advantage, but it also brings forth concerns about the loss of the personal touch that can be crucial in swaying juries and judges. Understanding how AI can complement – rather than replace – the human elements of trial advocacy is key to its successful integration.
Clients seeking legal representation in lawsuits typically look for more than just legal knowledge. They seek advocates who can empathize with their situation, understand the nuances of their case, and craft a strategy that resonates with judges, juries, or both. They value the experience, intuition, and personal commitment that seasoned lawyers bring to the table. Can AI enhance these valued elements of legal representation, or does it risk diluting the personal engagement that is crucial in litigation?
As legal tech has improved over the years, most clients report they expect their lawyers to decide what technology to use (or not). But with the meteoric rise of generative AI, more and more clients are thinking about the time savings that results from using these products. Especially clients that pay by the hour.
Of course, lawyers who are not paid by the hour are finding that generative AI tools can save them so much time that it’s highly attractive to use them. But they need to be cautious because sometimes these tools can go off the rails, as when two lawyers were sanctioned in New York in June 2023 for filing a brief with citations to completely fictitious cases.
Clients often expect their lawyers to be not just legal experts but also skilled storytellers who can weave facts into a compelling narrative. The concern is whether generative AI can support the creativity needed for effective trial practice. Clients might wonder if the use of AI tools could lead to a more formulaic approach to litigation, potentially undermining the creative and human aspects that can make the difference in trial outcomes. Regardless, the potential use of AI should be discussed with the client.
Advantages of AI from a Client's Perspective
From a client's viewpoint, the integration of AI in trial law offers several potential advantages. The efficiency and speed of AI can lead to quicker case resolutions. This is particularly beneficial where time is often equated with financial and emotional cost. AI's ability to analyze large volumes of data can unearth insights that might otherwise be overlooked, offering faster, more effective preparation and potentially stronger case strategies.
Additionally, the cost-effectiveness of AI tools could make legal services more accessible. By automating the more routine tasks, AI can reduce the hours billed, potentially lowering legal fees. This is appealing to clients who are often concerned about the affordability of quality legal representation. However, this benefit must be weighed against the need for careful oversight of AI tools to ensure accuracy and relevance in the highly nuanced context of litigation.
Client Concerns and Reservations
Despite the potential benefits, the integration of AI in trial law is not without concerns. Clients (and trial lawyers) may have reservations about the reliability and accuracy of AI-generated advice, especially in complex cases where nuanced understanding and human judgment are crucial. There's a worry that AI, in its current state, may not fully grasp the subtleties and complexities of human behavior and legal nuances, which can be pivotal in trial settings.
Privacy and data security are also concerns. Clients entrust lawyers with sensitive information, and the use of generative AI tools raises questions about data protection and confidentiality. While the major providers of commercial language models offer zero data retention arrangements and agreements not to use data submitted for training their models, the risk of data breach or misuse of information processed through these systems is a legitimate concern. Additionally, the impersonal nature of AI-generated content can lead to fears of a depersonalized legal service, where the empathetic and human-centric aspects of legal counsel are overshadowed by technological efficiency.
To Disclose or Not Disclose AI Use?
The ethical and practical aspects of disclosing the use of AI tools in legal practice are complex and multifaceted. Transparency about the use of AI can foster trust and confidence in the attorney-client relationship. However, it also requires lawyers to navigate new professional requirements, balancing the benefits of AI with the need for personal oversight and judgment. The legal industry is still in the infancy of establishing norms and standards around this transparency, and how it is handled can significantly impact the attorney-client relationship.
The decision to disclose the use of AI also intersects with the duty of competence. Lawyers must provide competent representation, which includes staying abreast of the benefits and risks associated with relevant technology. As AI becomes more integrated into legal practice, lawyers must consider how its use—and the decision to disclose this use—aligns with their ethical obligations to their clients.
Concerns of the Judiciary
Recent judicial reactions to the use of generative AI in litigation offer valuable insights into how the legal system is adapting to this technological evolution. For instance, the Fifth Circuit's consideration of a rule requiring attorneys to certify the accuracy of AI-generated material underscores the growing judicial attention to AI's role in legal filings. This development indicates a shift in how the judiciary views the role of AI, with potential implications for both trial lawyers and their clients. Other U.S. district courts in Illinois and Texas have already adopted similar measures. However, one state court judge in Louisiana has recommended strongly against efforts by the judiciary to regulate its use. He argues that there are sufficient existing mechanisms (including sanctions) to control potential misuse of generative AI such that additional rules are unnecessary and potentially stifle innovation within the judicial system.
State Bar Disclosure Guidance
The evolving professional rules and guidelines, as seen in late 2023 pronouncements from the California and Florida state bars, portend the reshaping of the attorney-client relationship around generative AI. For instance, the California Bar's guidelines recommend disclosing the use of generative AI to clients and advise against charging hourly fees for time saved by using AI tools. Similarly, the Florida Bar's proposed opinion suggests seeking client consent before using AI systems that may disclose confidential information.
These developments highlight the efforts of legal regulators to protect clients and integrate AI responsibly, ensuring that its use aligns with professional obligations and client expectations. As AI continues to evolve, it's crucial for lawyers to stay informed about these guidelines and consider how they impact their practice and their duty to their clients.
The Future from the Client's Lens
Looking ahead, the role of generative AI in litigation is poised for significant growth. Client expectations and preferences will be key drivers in shaping AI's adoption by trial lawyers. As clients become more familiar with AI's capabilities and limitations, their demands and comfort levels will influence how lawyers integrate these tools on their behalf. This could lead to a new paradigm in lawyer-client relationships, where AI's role is both understood and valued as part of the legal process.
The potential for generative AI to transform trial law is huge, but its successful integration hinges on a delicate balance. It must enhance, rather than replace, the human element of legal practice that clients value and the judiciary expects. We predict the future will see AI becoming a standard tool in the trial lawyer's toolbox, but its use must be guided by a deep understanding of both its technological capabilities and its impact on the human aspects of trial practice.
The integration of generative AI into trial law is a complex and evolving issue, deeply intertwined with client expectations, professional obligations, and the future of the billable hour. As we navigate this new landscape, it's crucial for ongoing dialogue among judges, trial lawyers, clients, regulators, and ethicists to ensure that the adoption of AI aligns with the core values of our judicial system and the needs of those it serves. The journey is just beginning.
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