When ChatGPT went live in late 2022, lawyers were some of the first to buy into its potential. Don’t like to do research? No prob; AI has you covered.
Not the best writer on the block? No sweat, let AI craft your winning brief.
Some lawyers were led to believe it would be stupid NOT to use AI.
Not so fast. When it comes to AI, the adage “garbage in, garbage out” comes to mind.
The truth is that for all of its power and potential, AI has a hallucination problem: It dreams up things it thinks you want and feeds them back to you in a way that is validating, even empowering.
Lawyers continue to learn the hard way that you cannot rely upon the legal research of Artificial Intelligence. You have to validate the results by actually pulling the case.
As one court recently explained in imposing sanctions on lawyers for relying on case law that did not exist:
While technology continues to evolve, one thing remains the same––checking and verifying the source. Before the digital age, attorneys had to manually cross-reference case citations through books’ pocket parts to make sure the cite was still “good law.” Nowadays, that process has been simplified through databases’ signals. Yet one still cannot run a natural language or “Boolean” search through a database and immediately cite the highlighted excerpt that appears under a case. The researcher must still read the case to ensure the excerpt is existing law to support their propositions and arguments. After all, the excerpt could very well be a losing party’s arguments, the court explaining an overruled case, dicta, etc. As attorneys transition to the world of AI, the duty to check their sources and make a reasonable inquiry into existing law remains unchanged
How mortifying it is to present your motion based on “authority” that was completely made up. This ticks off everyone in the system–clients, judges, opposing counsel, and the Bar.
Lawyers have an ethical duty of competence, and that includes the duty to learn how to use the tools of tech in the practice of law. Check out my posts on The Ethical Duty of Technical Competence and Artificial Intelligence for Lawyers: How to Maintain Your Technical Competency.
AI has its place, no doubt. But it has a long way to go! Just because AI says it, does not make it so.
The legal profession would be well advised to get educated on the usage of Artificial Intelligence in the practice of law. Numerous bar organizations and content providers are regularly publishing and presenting on the ethical and legal risks associated with the usage of generative AI. There is no excuse not to stay informed in this rapidly developing environment.
For an excellent overview on the subject, check out ABA Formal Opinion 512. It is a terrific resource. Also read Emil’s great insights on the Use of AI at the USPTO and IP Lawyer’s Guide to Artificial Intelligence.