“AI is not a magic wand, it’s a tool that augments human ability.”
Fei-Fei Li, as quoted by Open AI ChatGPT
Never fear. Open AI’s ChatGPT will not be taking over the world (yet!) or the practice of law. It is science fiction come to life, though, and something that lawyers need to educate themselves on, embrace, and navigate to improve their performance for their clients. After all, Open AI’s ChatGPT knows that the “. . . best lawyer is one who can effectively represent their clients and achieve the best possible outcomes for them. This can vary depending on the specific legal matter at hand.” Id. But let’s look deeper into what it is and whether it is a game changer in the legal world.
At a minimum, lawyers should test Open AI’s ChatGPT (“AI”) and determine how and if they may want to use it in their daily practice. This is critical if you are counsel for a business entity because this tool has been hailed as a game changer for businesses. As I write this article, corporations worldwide are already implementing AI to their business advantage and asking for guidance from their lawyers. You can sign up and test AI now for free here. But hurry, Open AI is already offering a “pro” version at a subscription price, and no one knows how long the standard version will be free.
Let’s talk about why lawyers should embrace this technology, with caution. For one, it is here! Yep, that’s right, the cat is out of the bag. I have heard of stories of clients challenging a lawyer’s legal opinion because they read something on Google, and who hasn’t asked their physicians questions after reading WebMD? Make no mistake, AI is no Google and no WebMD. And there is the catch, AI has the ability to exponentially spread knowledge on a level never seen before.
Let’s start with the basics and ask, what is AI? How is it different than Google? I asked that question, and AI replied that Google is a powerful search engine scanning “billions of web pages and returns relevant results in a matter of seconds.” It noted that Google is “limited by its reliance on keywords and search queries.” ChatGPT, on the other hand, can “provide more personalized and context-specific responses” and “engage in a back-and-forth conversation to clarify and refine a user’s question, leading to more accurate and relevant information.” Additionally, it says it “can provide information beyond what is available on the internet, such as opinions and insights based on its training data. . .” It appears that AI thinks a lot about its own abilities! But, it was honest enough to add, AI’s “responses should be evaluated critically and not blindly accepted as fact, as with any source of information.” And that is the critical lesson!
Just as a lawyer would not blindly accept that a case cited by opposing counsel in a pleading represents a specific principle of law or supports opposing counsel’s argument, they should not blindly accept AI’s output. Likewise, a lawyer should not blindly accept that their search query on Fastcase®, Westlaw®, or Lexis® produces cases that are exactly on point. A researcher must read the cases that those popular search engines identify to determine whether the authorities are relevant to their case. This article is by no means suggesting that a lawyer could or should substitute AI in place of popular legal search engines; it is simply to make the point that there is still a need for a well-educated, trained lawyer to check and analyze all sources of information. Indeed, when asked to suggest search terms for a query on a legal search engine regarding a Maryland husband wanting custody of his kids, AI did not provide search terms. Instead, it produced a list of ideas that included, among others, “Hiring a child custody lawyer in Maryland,” “Maryland child custody mediation,” and “Maryland child custody hearings and court proceedings.” Off the mark, but good topics to read.
I asked AI to write a simple legal complaint for negligence in Maryland. It produced a negligence complaint template with a Circuit Court of Maryland heading that one can find in multiple law libraries, legal books, form books, and the internet. However, the form it produced could not be filed in court. It needs an educated and skilled professional to complete the legal requirements for a valid legal pleading and adjustment for any specific nuances of a case. Critical thinking is necessary to complete the task. The same query on Google instead produced multiple links for me to click in order to find a legal complaint form, e.g., a link to Rocket Lawyer, a link to the Maryland Courts website for small claims, which had an additional link for me to click for a free legal complaint form and other websites that have the same basic form that AI produced. Thus, lawyers can use this feature to educate paralegals and law clerks on the first steps in drafting a complaint, but like with any form, the lawyer needs to finesse the pleading for filing with the court. AI can similarly be used to produce contracts and other legal documents. Of course, there are features in Microsoft Word and other legal software that can do the same.
AI is evolving, and specialization is inevitable. For informative purposes only, one new product bills itself as a virtual legal assistant using AI to assist a lawyer in researching legal issues, drafting emails and letters, summarizing documents, and brainstorming. If such AI software can actually perform competently to assist a lawyer in these functions, then it may become desirable and, perhaps,in time, indispensable.
Obviously, there are additional legal challenges and opportunities in AI. David Arato, a writer for Attorney at Law magazine, recently asked AI what mammal lays the largest eggs. The response he received follows.
The mammal that lays the largest eggs is the elephant. Elephant
eggs are the largest of all land animals, with some reaching up
to 9 inches in length and weighing up to 5 pounds. However,
elephants are not the only mammals that lay eggs. Some species
of monotremes, such as the platypus and the echidna, also lay
eggs. These eggs are much smaller than elephant eggs, but they
are still larger than the eggs of most other mammals.
ChatGPT and Legal Content Marketing, by David Arato, Attorney at Law Magazine, January 9, 2023.
So while there are potential AI benefits to assist lawyers, we must understand AI can be drastically wrong. If asked specific questions of law based upon a given set of facts, it may produce inaccuracies. AI is drawing from billions of information sources on the internet, and answering all kinds of questions, but it is not yet proficient at adaptability or analysis. Good lawyering requires critical thinking skills applied to a specific set of facts. And while AI can reduce the time spent on legal research, investigating a claim, or collecting information for a case, it is no substitute for a lawyer’s critical legal skills, interpretation, and application of legal principles. In fact, it is not yet close. While AI has capability to access billions of data sources on the internet, and is designed to observe patterns in thinking, there remains a lot of room for improvement.
The ethics and legalities of using AI also remain unanswered. There is the potential of AI infringing on intellectual property rights by scanning billions of websites and producing a response without properly sourcing or citing the material. Furthermore, users may legally need a license to reproduce or use any of the material that AI produces. Another concern is data privacy and whether AI can collect private user data from the websites it scans and then reproduce the user’s data without a person’s consent.
Overall, AI in its current form is not competent for lawyering and analytical legal skills. It has a high rate of producing false facts and analysis. There are nonetheless various legal functions that could benefit from AI, such as the creation of legal templates for contracts or pleadings, assistance in drafting conversational emails, and review of documents for discovery purposes. It would be wise for lawyers representing business entities and corporations to become familiar with AI and its potential uses and limitations for their clients. Lawyers will need to be prepared for legal questions about AI. But, in AI’s own words, “it is important to keep in mind its limitations and use it as a tool alongside human judgment and expertise.”