AI Won’t Be the Death of Lawyers; It Will Weed Out the Lazy
For lawyers (and the legal industry), generative AI evokes two feelings: fear or elation. Many fear that since one of the more recent forms of ChatGPT passed the bar exam, lawyers will cease to exist in the future. Some law schools banned the use of ChatGPT on their application essays.
However, for every “We’re not allowing AI/ChatGPT!” article I found online, I also found an article with the counter-argument of “We can and should teach/use AI/ChatGPT ethically in law!” Here’s one from Columbia Law School’s blog.
Generative AI Already Used in the Legal Industry
We know generative AI is an active component within the legal industry. I’m not referring to tools such as Lawdroid Copilot. I’m strictly referring to the use of OpenAI, Bard, Bing, Perplexity AI, and similar tools. These generative AI tools possess the ability to search and create content for anyone, regardless of their industry. That’s great…and terrible.
It’s great because we can use it to enhance our searches, create outlines, and find more information on practically anything. Once I began using Bing’s AI after test driving OpenAI, Bard, and Perplexity, I discontinued my paid membership to Rytr (an AI based writing tool I used to help create outlines from time to time; I liked it for multiple reasons and I highly recommend it. Note that I did not include an affiliate link!). Bing’s AI tool did a better job than any of the others for what I do.
One key point with Bing and Perplexity (my second favorite tool) that kept me hooked is the list of sources it includes when I use them. And what do I do? Well, as any good paralegal would do (although I’m not working as a paralegal), I check my sources.
How AI Weeds Out the Lazy Lawyers from the Good Ones
Imagine that you’re looking for a lawyer to represent you. Let’s pretend you’ve never been involved in a lawsuit, and there’s something substantial on the line for you. Maybe it’s a large sum of money because of a catastrophic injury or maybe it’s your freedom. You believe you’ve found the perfect lawyer for you. They’re reasonably priced, you feel heard, they are responsive to you, and you really believe that the Judge will find in your favor. You are SO optimistic!
The petition/motion/response on your behalf is filed by your wonderful attorney. And it’s time to go to court! You have butterflies, of course, because you’ve never been through any of this.
Then the Judge has something to say to your attorney…and it’s not good.
The cases in the document they filed on your behalf are non-existent.
What?
Yes, that’s right. Those cases don’t exist.
It turned out that your attorney relied on generative AI to
“find” case law to support your position or to “destroy” (wait for it…Futurama reference coming) OC’s position.
To make matters worse, your lawyer blames generative AI for giving them imaginary case law. Just like this lawyer did. Brazos County, Texas (85th District Court) experienced the same thing (And that is posted with permission of Judge Ferguson).
Lawyers Know Better…and It Starts in Junior High
How many of us (regardless of what we do for a living) slept through junior high? I enjoyed sixth grade and eighth grade. Seventh grade…was…special. Anyway, junior high is when we get down and dirty in basic grammar and learn the basics of writing essays.
I know. I’m reliving it now with my 13-year-old special needs son. He is on the spectrum with pervasive developmental delays. We just finished sixth grade. We wrote several essays together, and we wrote a simple book report. He types (some). His handwriting is that of a four-year-old (literally). His English class (Language Arts) focused on finding sources, checking them, and using them in his writing. Just like my sixth grade year…and I suspect many of you did that as well.
We know that junior high and high school requires learning and refining the mechanics of basic research and writing skills, including and not limited to sourcing and checking your sources.
I started college when I was 27 years old. That was 2005. I graduated in 2008 with a BS in Paralegal Studies, Summa Cum Laude. During my undergrad, I took Legal Research and Writing I and II for Paralegals along with CALR. I recognize these courses are less intensive than the same courses for attorneys. However, we learned to find cases and ensure that they were good laws for whatever pretend scenarios we dealt with. For the papers we worked on, we had to use APA citations.
Grad school was a nightmare (for me). I experience nightmares over one class to this day (received a B): Qualitative and Quantitative Statistics. Yes, it was a required class. I wrote one of my final diagnostic papers of Casey Anthony. I was in Orlando during her trial (with my oldest children — vacation at Universal). I had to cite the DSM-V and whatever else I used at that time.
I taught and directed a Paralegal Studies program at Vatterott long before they shut down. I taught Legal Research and Writing I and II, CAL-R, Advanced Communications, US History, Intro to Law, and all of the other Paralegal Studies courses. I also tutored other students. Do you know what they all had in common? Finding, reviewing, and citing their sources. The keyword in all of this is: reviewing. These students were in HVAC, electrical, nursing, paralegal studies, criminal justice, and I think we had business management.
Before the lawyers who used generative AI to create non-existent case law took filed their documents with the court, they went to college, graduated, went to law school, graduated law school, took and passed the bar, and collected extensive experience working with a legal research system of some kind (I used mostly WestLaw but a few years back, I worked with Penn Foster to redo their Paralegal Studies course and partnered with LexisNexis Canada for help with the walk-thru of how to use Lexis because it had been forever since I last used it).
So, it’s not the fault of generative AI for doing what generative AI does: researching or making things up. It’s the fault of lazy attorneys for not following protocol: reviewing their sources and ensuring that they’re using good case law. In Westlaw, that was/is known as Shepardizing. If you’re not familiar with legal research, it means looking at the case history to determine if the law is still good.
TL, DR
Lawyers, if you’re lazy and don’t check your case law, what happens to you in court for using non-existent case law is what you deserve. It’s not anyone’s fault but yours. You were taught in junior high, high school, undergrad, and law school to research and review your sources. Do your job and you’ll be fine. If you can’t be bothered to do your job and review your case law, hire an associate or an experienced paralegal to review the case law to at least make sure it exists before you file it. Play stupid games, win stupid prizes.
