Like everyone else in the legal community, this year we read an enormous amount of writing on the impact of artificial intelligence on the practice of law. We noticed how initial reports predicting catastrophe for the legal profession gave way to discussions of the many ways that artificial intelligence will create efficiencies and empower lawyers to achieve better outcomes and deliver greater value to clients. Artificial intelligence, as the current thinking goes, is a time saver and insight generator rather than a destroyer of legal careers.

That’s certainly the case in our corner of the legal community – litigation – where personal integrity, preparation, advocacy and cross-examination skills, storytelling ability, and strategic thinking are the coins of the realm. Artificial intelligence does not excel in any of these crucial trial lawyer characteristics. Not yet, at least.

Artificial intelligence and so-called “generative AI,” which has the ability to create legal documents, are technologies that are very good at analyzing contracts, materials produced during pretrial discovery, as well as case law and statutes. Artificial intelligence also improves the quality of legal outputs by automating proofreading and document presentation functions. Artificial intelligence technologies even have the ability to draft complaints, discovery materials, and draft responsive pleadings and legal briefs.

Artificial intelligence technologies are unquestionably more efficient than human lawyers at all of these tasks; whether or not they are better than human lawyers is debatable today, although it is easy to imagine a not-too-distant future when computers will dominate these and other routine lawyering functions.

Litigators Need Not Fear AI

Artificial intelligence technologies can aid in deposition and trial preparation, but they’re no substitute for an experienced litigator. In one often-cited article, federal district judge Mark W. Bennett listed the leading traits he observed among winning litigators in his courtroom. Leading Judge Bennett’s list of successful trial lawyer attributes was the ability to tell a compelling story for the judge or jury. ” All great trial lawyers are great storytellers,” he observed.

Rutgers Law School professors Brian J. Foley and Ruth Anne Robbins expressed the same idea in a 2001 article on the power of stories to persuade juries. “To learn how to win cases, lawyers need to learn about persuading people, an art that has always dealt more with emotion than with reason,” they wrote.

Emotion is not something that artificial intelligence technologies can detect or create.

The remainder of Judge Bennett’s list of winning trial lawyer attributes are these:

• “Grit,” defined as the perseverance and passion for long-term goals
• Virtuoso cross-examiner
• Thoroughly prepared for trial, a trait widely admired by judges and jurors
• Courtesy, akin to professionalism, a quality that enhances credibility
• Great listener, to witnesses and to the court
• Sound judgment and professionalism
• Reasonableness in all aspects of preparation and trial (“Unreasonable lawyers are the first to create additional obstacles to resolution, even for easy-to-resolve problems.”)

As far as we know, no technology has been invented that possesses these winning traits. Perhaps “artificial efficiency” is a better term for what artificial intelligence provides the experienced litigator. Artificial intelligence today does not make decisions about which cases should be filed, which witnesses should be deposed, or which litigation strategies should be pursued on the client’s behalf. And generative AI (e.g., ChatGPT) draws insights from existing legal materials, meaning that (so far) its ability to be creative and advance the law is limited.

“Artificial intelligence technologies are unquestionably more efficient than human lawyers at all of these tasks; whether or not they are better than human lawyers is debatable today, although it is easy to imagine a not-too-distant future when computers will dominate these and other routine lawyering functions.”

Today, at least, the tasks that artificial intelligence is good at are, at best, only a small subset of the qualities that make a good trial lawyer.

Instead of providing true legal judgment, artificial intelligence automates those legal tasks that lawyers have already decided – in their professional judgment – are necessary to accomplish. This is no small matter. Artificial efficiency frees the litigator’s time for creative thinking and business development. And it may drive the cost of legal services lower, for the benefit of large institutions that expect their law firms to be using technology and for the benefit of the unserved legal market in the form of lower-priced legal services.

What Does the Future Hold?

Casting an eye further out in the future, it is not difficult to imagine ways that artificial intelligence might someday have an even greater impact on the lives of litigators. Will artificial intelligence eventually produce a less litigious society, reducing the demand for trial lawyers? Will laws be rewritten to facilitate computer-driven dispute resolution instead of traditional trials in courtroom proceedings? Will courts admit into evidence insights generated by artificial intelligence?

Will depositions become shorter, more efficient, when artificial intelligence identifies for litigators the few outcome-determinative facts actually in dispute? Will litigators allow their clients to be deposed with technologies that assess their body language and credibility in real time? Will judges make use of AI to quickly decide motions and bench trials? How will courts react to thousands of “robo-complaints” written by artificial intelligence and electronically filed across the country?

The answers to these questions promise to bring about a true transformation of the legal profession, one that can only be glimpsed today. For now, artificial intelligence can only leverage – but not replace – the abilities of an experienced litigator.