GenAI can contribute to an increase in efficiency in the nation’s court system and promote access to justice, and judges and attorneys alike agree that is a discussion that should be happening
Courts, litigators, and litigants cannot exist in a vacuum. They must interact with one another in a functional manner to best provide citizens with access to justice. At its core, access to justice requires an evolution of the courts, requiring them to use modern solutions to solve modern problems. Generative artificial intelligence (GenAI) highlights one way for courts to keep up with modern solutions and maximize access to justice.
Efficiency in court
A large part of accessing justice is efficiency and expediency in the courtroom. Much like the use of virtual court hearings which became necessary during the pandemic, you can’t take back the technology when it comes to GenAI. If properly handled, GenAI in courts can be used to expedite processes and make access easier for individuals. The only choice for courts is to find the best way to use it.
For example, chatbots are a popular use of GenAI. They use natural language processing (NLP) to understand user questions and automate responses. These chatbots can enhance litigants’ experiences, especially if they’re seeking answers to basic questions. It would essentially be an expansion of the Frequently Asked Questions pages that are available on many websites. And this can be further enhanced with the use of large language models (LLM) that make such chatbots more user-friendly.
“I am excited about the prospect of self-represented litigants using AI tools to identify, understand, and assert their legal rights,” says Vice Chief Justice Ann Scott Timmer, of the Arizona Supreme Court. “Hopefully, AI will greatly assist ongoing efforts to close the gap in civil justice.” There are LLM that use AI technology and can give help to non-legally trained individuals, Justice Timmer explains. “Imagine being able to type a problem into a computer and have an AI program assist that person in navigating solutions to resolving that problem either inside or outside a courtroom. That’s the dream.”
Ideally the use of LLM and NLP can help today’s courts evolve into a more modern court that better serves its litigants and general citizenry.
GenAI options used by litigators
While looking at the possibilities of GenAI for use by the court to serve individuals, we must also consider the applications of this technology for litigators and how they can use it to interact with the court. This would include the use of GenAI to summarize, research, write, and complete other basic documentation tasks. Of course, the use of GenAI in these tasks opens another set of concerns and requires balance.
“Lawyers are ethically responsible to keep up to date on using technology,” says Justice Timmer. “So, just like a lawyer is ethically required to know how to use some type of computer-assisted research, a lawyer also is ethically responsible for keeping up with other accepted technologies, including AI. If AI can assist a lawyer with more efficiently or accurately representing a client, I think lawyers will have to learn how to use that technology.”
Seth Price, Managing Partner at Price Benowitz, spoke of the litigators use of GenAI as “a tool for an attorney”, and “like many other things, [it] can assist a lawyer in preparing court filings” although “the lawyer is responsible for the results.”
To hear more from Price Benowitz’s Seth Price, you can listen to his podcast here.
This should be looked at the same way a lawyer would look at the work of a junior attorney, support staffer, or overseas cohort who completed these tasks — it still needs to be checked over by a lawyer for accuracy and completeness, Price explains. “The court will not excuse mistakes because the AI messed up.” Attorneys will have to take the time to make sure that what they are submitting it true, accurate, and submitted according to the guidelines, he adds.
As the use of GenAI expands into law firms, it behooves lawyers to remember their fundamental obligations and connections to their work. They need to know how to properly use the technology as a tool, rather than a scapegoat for errors.
Moreover, the use of GenAI improves the efficiency of billing and other work processes and can drastically cut the time used to complete tasks. A 2023 report by the Thomson Reuters Institute, Law Firm Billing Efficiency & Write-Downs, notes that the vast majority of law firm partners said that they believe that the amount of non-billable work time that lawyers currently perform needs to be reduced. This indicates that there is a large appetite for creating greater efficiency within attorney workflows.
This also means that the use of the newer GenAI tools could be a potential benefit to the litigators and the litigants as well.
Ethical considerations in GenAI use
Price says he thinks more deeply about GenAI in the hands of litigators, noting that courts have already seen high-profile examples of unchecked AI in which lawyers submitted nonsensical documents and then blamed AI for the results. “To me, while it is salacious, it doesn’t address the fundamental issue with AI,” he adds. “The issue is allowing unredacted and privileged documents to be used to produce results that may be a violation of attorney/client privilege. This needs to be considered with public documents and with tools that are only enterprise wide.”
Justice Timmer says she has a similar concern. “There are other ethical issues I’m not sure lawyers have thought much about,” she explains. “For example, putting client information into a cloud-based AI model like ChatGPT makes that information public. The lawyer may breach the privilege of confidentiality by using such models. And in closed-loop or enterprise models, AI may use client-confidential information to train itself and to assist other clients. Do clients need to consent to that use? These are among the questions that should be answered before adopting AI into a practice.”
While the efficiency in the use of GenAI seems like almost a perfect solution, it is important to know that there are still many additional ethical questions to be asked. Modern courts, litigators, and litigants need to work closely with each other and tech specialists to come up with the proper way to use this technology in a way that promotes ethical use, improves efficiency, and ensures privacy.
You can access the Thomson Reuters Institute report, “Law Firm Billing Efficiency & Write-Downs” by filling out the form below:
