AI and Attorneys: An Enhancement, Not a Replacement
This month features a conversation with Tripp Scott associates Paul May and Manooch Thomas Azizi.
Does artificial intelligence (AI) have the potential to enhance attorneys’ work product? You betcha. But can AI replace attorneys? Not so much – at this juncture, at least.
We all know Murphy’s Law – “if anything can go wrong, it will” – and that it has the tendency to rear its ugly head at the least opportune times. There is altogether too much that can still go wrong with this emerging technology to risk a potentially painful and expensive legal outcome resulting from its limitations.
Let’s explore some of the issues.
Bill Davell: Aren’t there simple legal tasks that can be taken on by AI without the expense of an attorney?
Paul & Manooch: It’s possible that there are limited, simple cases where using AI to draft a straightforward legal document could be appropriate. The problem: “simple” and “straightforward” are in the eye of the beholder, especially in the legal context.
AI is good at giving direct answers to questions. But in the words of one expert recently quoted in the Harvard Business Review, “The answer to most questions is ‘It depends.’”
Using an AI application places an immense burden on the end user to independently know, understand and input any and all relevant information necessary for AI to generate the intended result.
The skill of an attorney is not to come up with the “right” answers, but rather to listen discerningly and ask thoughtful questions to precisely:
Determine the parties’ intent
Ferret out the underlying facts, complexities and conditions of a particular business transaction, industry circumstances or family situation
Anticipate the relevant “what if” scenarios and zero in on potential risks and liability
Maximize rights and remedies under the applicable laws of the jurisdiction in question, and
Navigate and mitigate potential issues or discord.
All of which requires an adaptive human intelligence, coupled with training and experience, that is notably distinguishable from that of the AI available today. For all the knowledge and information gained from “scraping” vast reaches of the Internet, AI lacks the nuance and judgment to explore and address any of these issues even in “simple” cases.
Bill Davell: You’ve focused on drafting documents. Don’t other legal tasks come into play?
Paul & Manooch: Yes, and the gap between AI and experienced attorneys is even wider in those areas, which include:
back-and-forth negotiations of terms, conditions and covenants, requiring the ability to respond, often creatively, to changing and even novel circumstances while zealously acting in the client’s best interest
developing targeted written discovery, the exchange of information and records required in preparing for litigation or settlement
performing effective voir dire (questioning of potential jurors) taking a pointed deposition (pretrial questioning of possible witnesses), or examining a witness at trial
analyzing expert witness testimony, in particular to prepare a motion to dismiss unqualified evidence
determining new arguments or challenges to existing law,
dealing with ethical issues – a concept current AI especially struggles to grasp, let alone replicate.
Bill Davell: Are those the only issue with AI in the legal context?
Paul & Manooch: Perhaps the biggest concern, according to another authority interviewed by HBR, is that bots’ direct answers “Direct answers may be convenient, but they are also often incorrect, irrelevant, or offensive.” Bots are known to “hallucinate,” that is, outright fabricate responses – including a mistake that cost Google $100 billion in stock value in a single day, and, even more on point, a New York case in which an AI app depended on by lawyers to write a brief was caught “making up cases out of whole cloth.”
These challenges are so acute that HBR and its experts conclude that “(e)ssentially, we—the users—are now doing the work of testing this technology for free” and that “(w)e’re all guinea pigs at this point.”
When clients’ businesses, property, careers or legal rights are on the line, they can’t afford to be “guinea pigs” for developers and face the costs of correcting or litigating issues or disputes that could and should have been anticipated, much less outright errors.
Bill Davell: So is there any way AI as it is currently configured can be of service in the legal context?
Paul & Manooch: While AI will continue to evolve and support attorneys and their clients, to go back to the beginning, apps should, for the time being, be understood as potential enhancements to, not replacements for, attorneys’ work product, leveraged in limited, direct applications in their skilled hands and subject to their judgment and review.
Specific areas in which AI can currently support clients include data-driven decision-making and streamlining legal research and writing, with careful safeguards and checking to protect against mistakes, or missteps such as ambiguous, wrong, insufficient or omitted information or terms, or the violation of ethics and best practices.
As we all continue to navigate and learn from and about AI, this innovative tool undoubtedly offers a significant opportunity to enhance legal services to clients. But for now, individuals pursuing business or personal objectives through the law or the court system would be well-advised to leave its use in the hands of attorneys with the skill, experience and judgment to ensure that it complements—not jeopardizes—their work.
