Artificial intelligence is poised to change the landscape of civil litigation. Despite its many benefits, AI also has quite a few weaknesses.
By way of a basic introduction, AI uses algorithms to analyze data, learn from it and make decisions based on that analysis. Simply put, AI is an advanced collation tool, with a basic ability to “think” drawn from user- crafted instructions, or prompts. Applied in litigation, this includes conducting legal research, analyzing case law and documents, and generating deposition outlines.
As a tool the potential is there. For big firms AI could be a tool that makes teams of lawyers and paralegals more productive. For solo practitioners AI could be a partner in practice. For clients AI could be a gateway to better legal representation.
Strengths
Find the smoking gun. AI can help analyze vast amounts of data quickly. In the discovery process, parties might exchange tens or hundreds of thousands of pages of documents. AI algorithms can sort through those haystacks to identify potentially relevant information, saving lawyers and their staff countless hours of manual evidentiary review.
Predict outcomes. AI algorithms can help predict the likelihood of a case settling or going to trial based on past cases with similar characteristics and can help lawyers and clients make more informed decisions.
Weaknesses
Garbage in, garbage out. AI allows users to draft prompts in plain language with ease, but lawyers who communicate poorly, or who cannot weed out their own biases and assumptions about a case, may have difficulty obtaining useful results.
Confidently incorrect. Certain AI can “hallucinate,” or make up answers. For example, this could involve splicing a real case name with a real citation from a different case, neither of which stands for (or even discusses) the proposition cited.
No nuance. AI cannot yet fully understand the nuances of human communication. If relevant documentary evidence was written in a sarcastic, ironic or other subtle tone, the AI might not realize it is responsive.
Threats
Job loss. As AI becomes more advanced, it may be able to perform certain tasks currently done by lawyers and their staff, such as document review and legal research.
Client confidentiality. AI systems are only as secure as the networks they are connected to. Law firms must carefully vet their AI tools to ensure both internal and external policies are in place to protect confidential client data.
Opportunities
Improved legal services. By using AI to automate routine tasks, lawyers can focus on higher-level strategic thinking. This brings the potential to improve case management and enhance value to clients.
>> Improved document management. There is potential, at some point, for AI to normalize document management. Traditionally, a large law firm has greater resources to handle massive document production versus a smaller firm or solo practitioner. AI is a tool that could help legal practitioners with access to less resources and manpower to overcome what could be a competitive advantage.
>> New leadership roles. Whether and to what extent AI is adopted in the legal profession could depend on the establishment and acceptance of information- handling and other governance rules (as was the case before email correspondence became widely used in the profession).
In conclusion, AI can possibly help litigants focus on the right issues and the right evidence at the right time. It has the potential to transform civil litigation, but it also presents some significant challenges and risks. Lawyers need to be aware of these issues and take steps to mitigate them. By doing so, they can take advantage of the many benefits that AI has to offer for legal practitioners and their clients.
Erika Gustin is an associate at Carlsmith Ball LLP and a member of the firm’s litigation practice group. She can be reached at egustin@carlsmith.com.
