Artificial Intelligence (AI) is trending. It can be found in our cars, our smartphones, our search engines, and even in our homes.
AI is also profoundly disrupting major industries and professions. In more recent years, AI infiltrated the legal services industry and is now poised to fundamentally alter the practice of law. But AI will not drive lawyers to extinction.
Instead, it will become an essential tool that we must embrace and learn to use in order to provide optimal representation to our clients. Put differently, AI will only eliminate the need for lawyers who are unprepared or unwilling to use it.
There are two types of AI, hard and soft. Hard AI includes machines thinking like humans. Soft AI, on the other hand, involves training machines to do work that humans would ordinarily perform. In the case of soft AI, the machines are not thinking like humans but rather include a process through which the computers can complete tasks and learn as they go. Within the broader category of AI, there is also Machine Learning (ML) and Deep Learning. The primary aim of ML is to allow computers to learn automatically without human intervention. While Deep Learning, a smaller subset of ML, allows computers to independently classify images, generate automatic handwriting, colorize black and white images, or add sound to silent movies.
Importantly, AI is already assisting the legal services industry in several key respects. Legal research has been at the forefront of incorporating AI into the legal practice.
Legal research tools rely upon user-generated search terms and parameters to allow lawyers to search legal rulings and statutes across multiple jurisdictions in a matter of minutes.
Some publishing companies offer enhanced features that employ AI to evaluate written briefs in order to assess the strengths and weaknesses of the arguments made, identify gaps in the underlying research, and predict the potential outcomes of these submissions.
Thus, AI has gone beyond merely finding and categorizing results to providing a predictive analysis.
AI has been employed with Electronic-Discovery (E-Discovery) for years, and its use in this arena is now well-established. E-discovery software allows lawyers to use specific search terms and parameters to quickly scan and retrieve relevant, responsive, and non-privileged information for a case. Existing AI can also organize and summarize these documents to allow easy access.
Most law firms have abandoned paper files in favor of electronic files. Document management software, a simpler form of AI, allows lawyers to code, organize, store, and search documents, all while protecting confidentiality and privilege.
More recently, AI has been deployed in expertise automation, which involves accumulating legal knowledge into software that clients and lawyers alike can use to assist in particular legal disputes. For example, software has been developed that can assist individuals in drafting wills or partitioning property through divorce or other proceedings. User input is required for expertise automation, but this AI facilitates access to legal services for those who would not otherwise have the resources to retain an attorney.
Most applications of AI in the legal profession require the input, management, and oversight of attorneys. That is because the majority of widespread AI technologies produce data-based solutions to specific problems. The future of AI in the legal profession will include more automated services, such as preparing initial drafts of contracts or legal briefs. But it is important to understand that there are practical limitations to the use of AI and, hence, its ability to fully automate the need for lawyers. AI cannot replicate or replace the need for human judgment, empathy, creativity, and adaptability. For example, AI cannot present a compelling case to a jury. Nor can AI replicate creative, persuasive writing required in appellate briefs.
So far, large language model-based systems, such as ChatGPT, have shown flaws in their ability to delve into creative writing. AI does not perfectly replicate human thought processes and, as a result, can generate bizarre or sometimes false results. As one legal scholar noted, ChatGPT found a legal authority that was on all-fours with what was requested. The problem, however, was that the case did not exist in real life. (See Spoehel, Jay “Will AI replace lawyers? Two legal experts weigh in”, Fox Business: https://www.foxbusiness.com/technology/artificial-intelligence-replace-lawyers-two-legal-experts-weigh-in).
Additionally, because AI draws upon existing data, there are practical limitations to its efficacy. Existing data may be tainted by bias, thereby skewing the results. Furthermore, the rules of law and precedent are not as steadfast as computer coding, and AI may not accurately or quickly adapt to these changes.
Nonetheless, law practices must embrace these technological advances and be prepared to deploy them to further their clients’ interests and goals.
In 2012, the American Bar Association added a comment to the rule governing an attorney’s obligation to provide “competent representation to a client” that espoused the notion that the attorney must understand “the benefits and risks associated with relevant technology….” While the scope of this is ever-changing, it is easy to anticipate the inclusion of relevant AI technologies in the not-too-distant future.
When it comes to AI, however, the ABA model rules do not mandate that lawyers become computer coders. Instead, lawyers will need a working knowledge and understanding of the available AI tools. Lawyers will need to be able to know which tools will best meet their clients’ needs and, more importantly, understand how to use those tools. The savvy lawyer will know what queries to run, how best to construct them, and how to evaluate and structure the results in order to devise a cohesive action item or argument on behalf of their client. AI will not, in the end, render the legal profession obsolete but will drive to extinction those professionals who refuse to embrace it.