AI is the new kid in town, but use caution

Everywhere you look today, you are bombarded with a plethora of articles about and advertisements for ChatGPT, Artificial Intelligence (AI), and Generative AI, boasting about all they can do for you and your practice. It is touted, as the old saying goes, as the greatest thing since sliced bread. ChatGPT-4 can pass the Bar exam, as well as the Multistate Professional Responsibility exam. It can make poor and mediocre law students better legal writers, but paradoxically can bring down the quality of better student legal writers.

With AI, the legal profession is currently undergoing its most substantial and significant metamorphosis since the first lawyers hung out their shingles hundreds of years ago. Back then, there were vastly fewer laws, and it was quite easy for early lawyers to call themselves general practitioners: a lawyer could prepare wills, draft contracts, handle divorces, negotiate business deals, prepare real estate contracts and handle the closings of such transactions, and represent persons charged with a crime, everything from barroom brawls to cattle rustling to cold-blooded murder. Today it is hard enough for a lawyer to stay competent and up to date in any one specific area of law.

Until fairly recently, lawyers spent untold hours researching the “big books” to discover legal authority – e.g., case law, statutes, regulations, and the like – for their position as well as authority that went against their position. Then they had to Shepardize the cases and statutes to see if they had been followed, modified, distinguished, or overturned. After hours of research, they then had to put pen to paper – or fingers to keyboard – and craft a solid, well thought out, and organized brief using their finest analytical skills, deductive reasoning, and persuasive arguments the seeds of which had been implanted in them in law school.

With AI today, it is becoming possible for that same lawyer who spent many hours researching and preparing a brief, contract, or other legal document to use AI to research and write the brief or document for him or her, in a considerably shorter period of time – and quite often a better brief than the lawyer might have written without the assistance of AI. The lawyer must become skilled in the use of “prompts” to instruct the AI in what the lawyer wishes the AI to do. The lawyer essentially becomes a reviewer and editor of the material produced by AI. Of course, researching and preparing briefs, etc., is only one of the tasks AI can perform. It can review and prepare a summary of lengthy documents and eDiscovery.

Will AI make lawyers obsolete? It has been predicted that 44% of all legal tasks can be performed by AI. It is contended that rather than reducing the number of lawyers, with AI the lawyers will be freed up from labor, repetitive, and time-intensive tasks so that they can redirect their focus on sophisticated and high-value work, resulting in increased billings. On the other hand, it has been stated that AI will allow the lawyer to do the work in less time, and the lawyer can pass the savings on to the client, estimated as much as 25%.

Here are a few of the many things that human lawyers can do that AI can’t:

· First and foremost, because it doesn’t have a human brain, AI lacks emotional intelligence. Lawyers can understand and empathize with the emotions, needs, and concerns of their clients. They can provide emotional support and build a strong relationship with their clients, which is crucial when dealing with sensitive issues such as divorce or personal injury. AI lacks emotion, passion, empathy and those other qualities that make us human, that are at the core of a solid, trusting attorney-client relationship.

· While AI is excellent at analyzing vast amounts of data and providing informed recommendations, it is incapable of creative problem solving and strategic thinking. Lawyers can think outside the box, come up with creative solutions, and adapt their strategies to unique and complex situations. They can consider the broader implications, ethical concerns, and legal precedent that AI might overlook. With the lawyer’s training, skill, and experience, the lawyer is able to come up with innovative solutions to complex legal issues.

· Lawyers are skilled in the arts of negotiation and conflict resolution and are trained to resolve conflicts between parties. AI is currently incapable of handling the nuances of human interaction that are required for effective negotiation and conflict resolution.

· Lawyers are trained to make judgments and decisions based on complex legal principles and ethical considerations, which is beyond the ability of AI.

· Lawyers are skilled advocates who are trained to persuade judges and jurors to see their clients’ point of view.

· Lawyers are trained to counsel their clients and provide them with appropriate legal advice and explain complex legal concepts to them in terms the client can understand. AI is incapable of providing the same level of personal advice as a lawyer.

· Lawyers are trained and skilled in the art of interviewing witnesses and extracting information from them.

· One potential pitfall of AI is that lawyers may become lazy, relying too heavily on what AI churns out rather than using their own independent judgment, training, and experience. The time-constrained lawyer facing a rapidly approaching deadline may be tempted to turn to AI and mainly or wholly rely on its output, without performing an independent review and verification of the document for factual accuracy, real and correct citations and any quoted material therewith, persuasiveness of arguments, etc.

While AI may perform research, draft complaints, motions of various types, review and summarize lengthy documents, perform due diligence, it cannot console the parents of a 14-year-old daughter who was killed in an automobile accident, nor can AI pick a jury or make an impassioned plea in summation to spare a defendant from the gallows.

AI lacks the passion and zealousness of a lawyer fighting for the rights of his or her client that has been aggrieved. To get an idea how AI can never truly and completely replace the passionate advocate who believes in the client and the client’s cause, you are advised to view two classic movies – “To Kill a Mockingbird” and “Inherit the Wind”; they are prime examples of how AI can never take the place of the dedicated lawyer who is a champion for his or her client.

Undoubtedly, AI will play a significant role in the future of the practice of law and its advocacy. Indeed, as per Comment (8) to Rule 1.1 of the ABA’s Model Rules of Professional Conduct, a lawyer has the duty to “to maintain the requisite knowledge and skill, [and] should keep abreast of changes in the law and it’s practice, including the benefits and risks associated with relevant technology . …”

But remember that when it comes down to the bottom line, AI is not a panacea, or do-all and be-all; it is only one of many tools the modern lawyer has at his or her disposal to faithfully and zealously represent clients. To paraphrase a great president, “Ask not what AI can do for you, ask what AI can do for your clients.”