Photo Credit: u/Der_Ist, Terminator lawyer, Reddit (Dec. 6, 2023, 10:21 AM), https://www.reddit.com/r/Terminator/comments/18c7lqy/terminator_lawyer/.
Authored by Dorris (Trey) E. Jernigan III
A scene in the James Cameron 1991 classic, Terminator 2: Judgment Day, where the villain of the movie, an artificial intelligence named Skynet, drops a nuclear bomb over Los Angeles, eviscerating the entire city.[1] It is a fearful, awful (yet iconic) scene meant to show the dangers of AI if we allow it to go too far. Recently, as AI has advanced and become more prevalent in the legal community, that is how many attorneys have felt, fearing the possibility of AI taking over legal jobs. For over two centuries, litigators across America have been combing through cases in books and on the internet, looking to find that golden nugget, that crucial line from a case that could be the turning point in winning the case for their clients. These nuggets are notoriously tricky to find, with hours upon hours of research required to find some of the most on-point cases. As the years have passed, legal research has turned into an art form, with some of the most skilled researchers priding themselves on quick and accurate results. With the introduction of AI, these skills have been brought into the modern age, and many people have access to them through their computers. Whether we like it or not, the AI train is coming, and there is likely nothing that will derail it off the tracks. That is why attorneys and litigators alike must learn to embrace AI rather than fear it, as it brings many positives regarding legal research and writing, and its overall pros far outweigh the cons. Throughout the remainder of this article, I want to briefly mention the background of legal research technologies all the way through the implementation of AI in the legal community today. As the cliché goes, “you can’t know where you are going unless you know where you’ve been.”
The practice of legal research began back in 1765, with Blackstone’s publication of Commentaries on the Laws of England.[2] However, modern case law research did not begin for over one hundred years, when in 1876, John B. West published the Syllabi, which reported on all of the year’s Minnesota Supreme Court Rulings.[3] The publication quickly took off, with other states wanting a similar legal reporting system of their own. All of this commotion culminated in 1879 when West released two innovations that still have massive influence today: the National Reporter System and the Key Number System.[4] The National Reporter System introduced the first nationwide U.S. judicial decision reporting, which changed the game when compared to the often very slow state reporting system. The National Reporter System provided attorneys nationwide access to cases from all U.S. state and federal jurisdictions, allowing them to craft stronger arguments than ever before.[5] The Key Number System was the first indexing system introduced to the legal world. It organized cases by topics and subdivisions, allowing attorneys to access cases relevant to the issues they were facing quickly.[6] The Key Number System revolutionized the world of legal research and writing, so much so that it is still an instrument that lawyers today value highly.
Fast forward approximately one hundred years to the digital era, and the legal research landscape transitioned to resemble the system we use and see today. Throughout the 1960s, state bar associations began evaluating ways to streamline the legal research process by using newly introduced computers.[7] By the time the 70s rolled around, Lexis (now LexisNexis) launched their online platform and changed everything in the world of legal research and writing.[8] Gone were the days of flipping through pages of books and dusty legal tombs; now lawyers everywhere had unheard-of access to even the most recent judicial decisions, and the cherry on top, they were searchable by keywords![9] A few years later, West followed suit, creating Westlaw, and the legal research platform arms race was off and running.[10] Nearly fifty years later, these advancements are still the foundation many attorneys use in their practice daily.
That brief history of legal technologies leads us to today, the era of artificial intelligence (AI). AI has revolutionized legal writing and research by providing unprecedented access to vast amounts of information and enhancing the efficiency and accuracy of legal processes. Through natural language processing algorithms, AI platforms can swiftly sift through immense volumes of legal documents, statutes, and case law to extract relevant information. This capability expedites legal research, enabling lawyers to spend more time analyzing complex issues rather than conducting tedious searches. Moreover, AI-powered tools assist in drafting legal documents by generating structured, coherent, and tailored content based on input parameters. These tools not only save time but also reduce the likelihood of errors. However, while AI streamlines many aspects of legal writing and research, it also presents challenges, such as the need for lawyers to adapt to new technologies and the potential ethical implications of relying solely on algorithmic outputs in decision-making processes. Thus, while AI offers tremendous benefits to the legal profession, it requires careful integration and oversight to maximize its advantages while mitigating risks.
Do you want to know how easy it is to utilize AI in your writing? Well, I used ChatGPT to write the entire preceding paragraph (after the first sentence).[11] As you can see, AI such as ChatGPT, LexisAI, and Westlaw Precision with AI can create well-written content, and I actually agree with all of the positives the AI outlined in the paragraph above. However, many pitfalls come with using AI to write legal briefs and to conduct research, such as data privacy concerns and the danger of attorneys becoming overly reliant on AI, weakening their writing and argumentative skills. Still, the number one issue yet to be ironed out is that AI has been known to make up cases out of thin air.[12] Several attorneys have been quick to rely on the copy-and-pasting of AI-written briefs straight into their court briefs and memoranda, and this reliance has come back to bite them as it did not take long for courts to catch these fabricated cases.[13]
In Mata v. Avianca, the first case involving this issue to gain widespread attention, a young attorney (working under a supervising partner) copied and pasted a ChatGPT written memorandum into a court filing.[14] Quickly after, the opposing party filed a memorandum stating that Plaintiff had not cited any existing authority that supported their proposition and that seven of the purported “decisions” cited by Plaintiff’s counsel could not be located.[15] The court conducted its own search for these clandestine cases and could not locate them either.[16] Upon being confronted about these cases that nobody could find, the supervising partner was shocked to learn that they were not real, as he had not checked the cited case law the young attorney had copied and pasted.[17] When questioned, the young attorney stated that he was “operating under the false perception that [ChatGPT] could not possibly be fabricating cases on its own[]” and that “ChatGPT is finding that case somewhere . . . [m]aybe it’s unpublished . . . [or] appealed . . . [or] access is difficult to get . . . I just never thought it could be made up.”[18] Regardless of what he thought, the court sanctioned him and the supervising partner and fined them $5,000.[19]
Green attorneys are not the only ones susceptible to this sort of blunder, however. Even the most seasoned and famous lawyers (or a non-lawyer, in this case) can get caught in the trap of AI’s fake cases. In 2023, Michael Cohen, Donald Trump’s former lawyer, unknowingly presented his attorney with fake, AI-fabricated cases in an effort to help his attorney out with Cohen’s case, which the attorney later used in a motion filed with the court.[20] Once again, this was a failure by an attorney to double-check the cases supporting his argument; Cohen asked that the judge give his attorney mercy for the mishap, calling it an “honest mistake” and “a product of inadvertence, not any intent to deceive.”[21] Ultimately, the judge declined to impose sanctions on Cohen and his attorney, calling the incident “embarrassing and unfortunate” while accepting Cohen’s explanation that he did not understand how the AI worked.[22]
While these attorneys may have been caught misusing AI to their detriment, those who have read this article will not make this same blunder. Here are several ways in which you can incorporate artificial intelligence into your research and writing to hopefully improve your writing and save you time, all the while keeping your briefs within the realms of reality.
1. Check, Double Check, and Triple Check Those Cases.
This one should be easy. Don’t get caught using fake cases like the lawyers above did. Check those cases! It should be as simple as inputting the case it gives you into your search engine of choice. I have also run into the issue of AI giving me real cases, but they are not on the topic I asked for at all. Always be wary of the cases AI is feeding you, and make sure to check them for accuracy.
2. Consider What Type of Argument AI Can Craft, but Never Copy and Paste That Argument.
Legal AI tools have reached the point where a person can say, “Write me a summary judgment on X issue with Y facts,” and it can craft a pretty decent argument in your favor. However, AI-written pieces are known to be overly wordy and very choppy.[23] That’s where you can come in, humanize the writing, and pick and choose the parts of the argument you want to use, if any. Even if you don’t end up using anything out of the brief the AI wrote, it may still inspire you on the way to structure an argument or may give you ideas on arguments you have not previously thought of. Just remember, you have an obligation to your clients and the courts to ensure that any argument you make is sound in law and logic and that you are not missing out on any arguments that could help your client’s case.[24]
3. Make Sure to Comply with the ABA Rules of Professional Conduct.
Finally, using artificial intelligence in legal writing comes with a slew of different ethical concerns. The Model Rules of Professional Conduct require that every attorney provides “competent representation to a client,” including understanding “the benefits and risks associated with relevant technology.”[25] Whether you mean to or not, misusing AI can lead to disaster and sanctions for yourself or, at the very least, a tarnished reputation. There are also issues when it comes to client confidentiality, as some AI models run the risk of “reveal[ing] information related to the representation of a client” without the client’s “informed consent,” violating Model Rule 1.6.[26] Many experts have stated that “open source” AI technologies like ChatGPT could violate the duty of confidentiality by including specific case information that is then shared with an “AI trainer.”[27] Do not fret, however, as AI products such as CoCounsel and Harvey contain confidentiality controls to negate these disclosure risks.[28]
Now, this is not an exhaustive list, nor are these all the considerations an attorney should take before dipping their toe into the AI water; however, it is a good start. AI is the way of the future, and while right now, some may think of it as a cheat or an ethical violation, it may soon reach a point where not using it will be an ethical violation, as litigators, trial attorneys, and transactional attorneys alike who do not use AI are putting themselves, and therefore their clients, at a disadvantage. Until that time comes, however, do something the AI cannot do: use your brain. Check those citations. Let the AI be a guide and not a crutch. As John Connor says, “The future is not set. There’s no fate but what we make for ourselves.”[29]
[1] Terminator 2: Judgment Day (Carolco Pictures 1991).
[2] From Dusty Tomes to Artificial Intelligence: The History and Future of Legal Research, Blue J, https://www.bluej.com/blog/from-dusty-tomes-to-artificial-intelligence-the-history-and-future-of-legal-research (last visited Mar. 20, 2024).
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] I used the prompt “Write me a paragraph discussing how AI has changed legal writing and research” and entered it into ChatGPT 3.5 on chat.openai.com.
[12] Benjamin Weiser, Here’s What Happens When Your Lawyer Uses ChatGPT, The New York Times (May 27, 2023), https://www.nytimes.com/2023/05/27/nyregion/avianca-airline-lawsuit-chatgpt.html.
[13] See generally, Mata v. Avianca, 22-cv-1461 (PKC), 2023 WL 4114965 (S.D.N.Y. June 22, 2023); Park v. Kim, 91 F.4th 610 (2nd Cir. 2024); J.G. v. New York City Dep’t of Educ., 23 Civ. 959 (PAE), 2024 WL 728626 (S.D.N.Y. Feb. 22, 2024).
[14] Mata, 2023 WL 4114965, at *2-3.
[15] Id. at *3.
[16] Id.
[17] Id. at *2.
[18] Id. at *3.
[19] See id. at *17 (stating that the $5,000 was “sufficient but not more than necessary to advance the goals of specific and general deterrence”).
[20] Larry Neumeister, Ex-Trump lawyer Michael Cohen says he unwittingly sent AI-generated fake legal cases to his attorney, The Assoc. Press (Dec. 29, 2023, 2:10 PM), https://apnews.com/article/michael-cohen-donald-trump-artificial-intelligence-777ace9cc34aa0e56398fd47a1d6b420.
[21] Id.
[22] Benjamin Weiser, Judge Won’t Punish Michael Cohen for Relying on Artificial Intelligence, The New York Times (March 20, 2024), https://www.nytimes.com/2024/03/20/nyregion/michael-cohen-artificial-intelligence.html.
[23] Ivy B. Grey & Danielle Cosimo, Why AI-Generated Text Sounds Wordy and Choppy, Wordrake, https://www.wordrake.com/blog/wordy-choppy-generative-ai (last visited March 25, 2024).
[24] Kate Rattray, Should Lawyers Use AI for Briefs?, Clio, https://www.clio.com/blog/ai-brief/ (last updated Mar. 8, 2024).
[25] Model Rules of Pro. Conduct r 1.1 cmt. 8 (Am. Bar Ass’n 2012).
[26] William A. Ryan et al., Practical Lessons from the Attorney AI Missteps in Mata v. Avianca, Ass’n of Corp. Couns. (Aug. 8, 2023), https://www.acc.com/resource-library/practical-lessons-attorney-ai-missteps-mata-v-avianca#; Model Rules of Pro. Conduct r 1.6(a) (Am. Bar Ass’n 2012) (“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent…”).
[27] Ryan, supra note 26.
[28] Id.
[29] Terminator 2: Judgment Day (Carolco Pictures 1991).
American Journal of Trial Advocacy 