Adopting AI: The efficiencies and risks for lawyers

Artificial intelligence (AI) has transformed industries in a way not seen since the adoption of the internet, and the legal field is no exception. Although our industry can be slow to change, legal professionals are increasingly embracing AI for its efficiency and innovation.

Some believe the amount of information attorneys must process necessitates this adoption.

Though AI can be a powerful tool, it is not a replacement for the sound judgment of an attorney, as noted in Mata v. Avianca, Inc., Opinion and Order on Sanctions, Case No. 1:22-cv-01461-PKC (S.D.N.Y. June 22, 2023).

Still, integration of generative AI into legal services is inevitable. This article outlines for legal professionals some beneficial uses of AI in litigation while highlighting risks to its users.

What is artificial intelligence?

AI encompasses a range of technologies and applications, from simple automation to complex machine learning. This article will use the following terms as defined in the Oct. 23, 2023, White House Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence:

“AI” means a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments.

“Machine learning” means a set of techniques that can be used to train AI algorithms to improve performance at a task based on data.

“Generative AI” means the class of AI models that emulate the structure and characteristics of input data to generate derived synthetic content.

Uses of AI in the litigation process

By leveraging AI, litigators can not only manage vast amounts of information more effectively but also gain strategic insights that were previously unattainable, given the quick deadlines in the court system.

Prior to filing a case, lawyers can leverage AI-powered analytic tools to sift through specific judges’ behavior, litigant positions and court trends to identify patterns and correlations that may influence the outcome of a case. Lexis+ now offers this feature as well as analyzing law firm and attorney performances. This predictive analysis provides lawyers with a data-driven assessment of the strengths and weaknesses of a potential case, allowing them to assist clients in making more informed decisions about how to proceed with litigation.

The discovery phase of litigation is time-consuming and labor-intensive, often requiring extensive manual review of large volumes of data. However, AI has significantly streamlined this process.

Predictive coding uses machine learning algorithms to identify relevant documents by analyzing patterns in data.

This technology can quickly sort through massive datasets, identifying potentially relevant documents based on criteria set by legal teams. The accuracy and efficiency of predictive coding can dramatically reduce the time and cost associated with document review, enabling lawyers to focus on more strategic aspects of the case.

AI’s impact extends to the drafting phase of litigation, where it can be leveraged in creating legal documents. These tools can suggest language based on previous opinions, filings, statutes or regulations, helping lawyers draft more precise and persuasive arguments.

Moreover, AI can perform complex legal research, providing lawyers with relevant case law, statutes and legal opinions that inform their drafting process.

In addition to document generation, AI can also assist with editing and proofreading. AI tools can detect grammatical errors, inconsistencies and ambiguities in legal documents.

Beware, however, the risk of AI generating incorrect content. AI can propose text which you may choose to use or discard, but you bear full responsibility for your document’s content.

In the trial phase, AI technologies are increasingly being used to support various aspects of courtroom proceedings.

For example, AI can assist with analyzing evidence. AI tools can analyze audio and video recordings, transcripts and other forms of evidence to identify inconsistencies, detect patterns and summarize key information.

This capability can be particularly useful in complex cases with extensive and technical evidence.

The risks of AI

While AI offers significant benefits in the legal field, its integration also poses several risks that may cause lawyers to pause and reconsider its use.

Knowledge of these risks enables lawyers to make informed, responsible decisions on how to utilize AI technologies.

Lawyers must never rely on AI tools at the expense of their oversight and judgment. Using AI without thoroughly verifying the results could lead to missing important information or making inaccurate conclusions.

Particularly, lawyers should keep in mind two rules from the American Bar Association’s Model Rules of Professional Conduct: Model Rule 1.1: Be Competent and Model Rule 1.6: Maintain Confidentiality.

Model Rule 1.1 mandates that lawyers provide competent representation to their clients and underscores the importance of maintaining a sufficient level of knowledge, skill, thoroughness and preparation.

As AI becomes increasingly prevalent in legal research, document drafting and case analysis, lawyers must ensure they are competent in understanding and utilizing these technologies.

This includes not only the technical aspects of using AI tools but also an awareness of their limitations and the potential biases inherent in AI algorithms.

Lawyers must critically evaluate AI-generated content and should not rely solely on these tools without appropriate oversight and verification.

Competence, in this context, extends to a lawyer’s ability to discern the reliability of AI outputs and to integrate these tools effectively within the framework of legal practice.

Moreover, Model Rule 1.6, which concerns the duty to maintain client confidentiality, becomes critically relevant when employing AI in legal work.

This rule obligates lawyers to protect all information relating to the representation of a client, except under certain limited circumstances. When using AI tools, lawyers must safeguard client information, especially when providing prompts and feeding data to generative AI.

Lawyers should be aware of the data handling and privacy policies of AI service providers to determine if prompts can become part of the data set on which the model is trained, or how data provided by the attorney is maintained.

The use of AI in legal practice raises issues of accountability and transparency. The decision-making processes of AI systems can be opaque, making it difficult to discern how conclusions are reached. Additionally, an AI tool will inherit biases from its training data, influencing its output.

As AI output is designed to be indistinguishable from human creation, an attorney should be honest about the use of AI in their work.

Conclusion

AI offers numerous advantages in the field of litigation, but to achieve those advantages attorneys must navigate the significant risks and challenges. By using AI responsibly and ethically, legal professionals can harness the potential of AI to improve the efficiency and effectiveness of legal practice.•

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Partner Kyle W. Miller, based in Louisville, and Associate Alexis Martinez, based in Indianapolis, are members of Dentons’ Global Privacy and Cybersecurity practice. The opinions expressed are those of the authors.