[Editor’s Note: EDRM is proud to publish the Hon. Ralph Artigliere’s advocacy and analysis. The opinions and positions are Judge Artigliere’s (ret.) copyrighted work.]

The Situation: Generative AI and Chat GPT exploded in the past few months causing businesses and legal professionals to reconsider their operational and administrative processes. The race to develop programs and applications using AI for legal professionals is proliferating faster than lawyers, judges, and employers can keep up as they are occupied by day to day deadlines and challenges. Individuals at all levels are asking whether AI is coming to take their job. Worst case scenarios are arising from cases where the use of ChatGPT has gone terribly wrong. Regulators from governments to judges and organization managers who want to keep AI use within safe guardrails are working against a moving target.

The Result: Few relish the role of test pilot for the novel and powerful jet with a mysterious engine and untested potential, so law firms and individual legal professionals are understandably reticent to jump in with both feet. There are unquestionable benefits from use of generative AI, but serious practical and ethical dangers involving hallucinations, bias, and confidentiality cause understandable hesitation. The range of acceptance of Chat GPT in the legal fields spreads from “all-in” to “no way.” Whether we like it or not, AI is here to stay and it will pass the tipping point if it has not already done so already.

The Challenge: Forward thinking legal minds like Ralph Losey predict that “[t]he emergence of super-intelligent Ai could fundamentally transform various aspects of the legal profession, from legal research and drafting to dispute resolution and ethical considerations.” https://e-discoveryteam.com/?s=post+Ai+legal+landscap. This forecast is playing out across the legal spectrum. AI is already useful to legal professionals in appropriate circumstances and with carefully crafted products and applications. Old and new players in the legal industry are in hyper-development phase with improvements to current products and development of new ones. How should non-technical legal professionals and their employers and managers react to the challenges of absorbing technology that is still developing but already infiltrating their workplace? Industry leaders and those who want a competitive advantage and improved professional performance will learn what is necessary, find a way to get in the game safely, and be prepared for the continued advances that will undoubtedly come to the legal profession.

The Path Forward Will be Familiar to Leaders

My personal journey in the profession of law from law school in the mid 1970’s to trial lawyer, judge, and now educator traversed countless technology advances. For example, I was in my final year law school in the mid-1970’s when Westlaw was introduced to the world. Westlaw installed a single portal via telephone landline that was located behind the law school library front desk. Students were introduced to digital research and Boolean logic and provided the opportunity to practice on the Westlaw terminal when it was not being used for instruction. It seemed incredibly important to me that we had a searchable source of thousands of case law decisions back to 1925. There were several hundred law students; but the Westlaw portal was surprisingly ignored, perhaps because Westlaw research was novel and complex, and students had enough on their plate keeping up with all their other classes and busy lives. That created an opportunity for me to practice often on the vacant portal and ask anyone- Westlaw reps, the librarian, and professors- for help in mastering this new technology. My work paid off after graduation when my law firm got Westlaw. As a brand new associate I had an edge as the most experienced Westlaw researcher in the firm. That foundation became a solid framework for broader online research when the internet emerged in the 1990’s. Learning by immersing myself in the technology at the outset was incredibly valuable in the long and short run.

The key to weathering the storms and running with the wind is investing the time to learn enough about new technology to identify issues and make informed decisions. Granted, a paradigm shift in technical advances with potential pitfalls like generative AI appears more challenging to negotiate than gradual innovations. But this new world of generative AI is well worth investing time and effort to master the knowledge needed to use it safely and effectively in law practice or to successfully manage lawyers who use it. Small wonder that legal technology thought leaders like Ralph Losey are encouraging legal professionals to embrace the opportunity to work with AI systems and to leverage their strengths and insights. The solution to enduring today’s powerful advancement is overcoming fear, developing an informed outlook, and learning carefully by using new technology within a safe envelope as described below. Experience gained by using generative AI will yield foundational knowledge, enhance learning, and pay off for future use as the applications become commonplace in law practice.

Using Past Experience and a Commitment to Learn to Gain Useful Insights

I have been teaching lawyers and judges about technology and eDiscovery for more than 20 years now. My learners can range from those with little knowledge of the technical subjects to experienced learners polishing their skills. The audience includes busy professionals who feel so overwhelmed with technical subject matter that they shut down learning. Overcoming this tendency is a challenge for the presenter. In eDiscovery and ESI Admissibility classes, I draw parallels between traditional discovery and admissibility rules and processes to the digital equivalents, and the light bulb turns on when students understand that the policies and purposes behind the rules of procedure and evidence support their application to digital data. In order to master the new material, however, the learners need to understand enough about the culture and technology of ESI to apply known rules and policies properly. And I stress that the amount of technical knowledge needed to learn about eDiscovery and electronic evidence is manageable, even for busy lawyers and judges.

The same approach applies to generative AI. Most judges and lawyers in my audience have not yet tried Chat GPT, let alone mastered it. But legal professionals do not need to know how to code or what algorithms are applied or even specifically how the large language models are trained in order to understand the power and limitations of Chat GPT for use in law practice. What they need to know is enough about how LLM’s work and what the potential pitfalls are to use it or manage those who use it. Beyond that, they need to understand the proper use of the product. For Chat GPT in general, that means understanding the way to interact or prompt the application in a skillful manner while keeping out private or confidential information. Providing context for Chat GPT to generate useful product takes some learning and some practice, which can be done safely and ethically with practice and forethought.

Reading about generative AI or listening to blogs is not enough to fully understand it. As a former helicopter pilot in my life before law school, I learned that flying is not mastered in ground school alone. It takes practice and experience in the seat of an aircraft to truly know what flying is and to become a safe pilot. The same goes for learning to use AI products. There is no substitute for practical experience interacting with Chat GPT on top of the “ground school” elements of how-to and tips on improvement.

Understanding How to Learn and Use AI Safely and Ethically

The internet provides ample instruction on how to get started and safely use AI, and the providers of Open AI, Bing, and Claude, and other generative applications include basic instruction on their platforms as well as free versions for practice. In addition to receiving updates from EDRM and JD Supra on AI, I personally use a twice a week blog from a law professor named Josh Kubicki called Brainyacts found at https://thebrainyacts.beehiiv.com/. In addition, users can just ask Chat GPT how to do it well and safely, and the answers do a surprisingly good job of overcoming roadblocks. True learning occurs by using the product yourself on your real life activities.

Safe uses abound, and you can make Chat GPT a readily available legal assistant. Lawyers or staff can start with administrative tasks like drafting emails or preparing a CLE or client presentation. For writing tasks, Chat GPT provides more than checking for grammar, spelling, and punctuation errors. Chat GPT will outline a paper or email, suggest alternative wording or phrasing to make the content clearer and more concise; or, upon proper prompting, critique logical arguments or provide alternative approaches. Undertaking professional tasks like summarizing documents, preparing an outline for a deposition or hearing argument, role playing a negotiation, and much more are within reach without breaching confidentiality. Caution must be taken to safeguard private information by understanding the application’s privacy settings, but all of this is safely doable now for free use or minimal cost. Always provide your own human touch to make the product your own and check behind anything Chat GPT suggests like you would any assistant or law clerk. Do not use Chat GPT to create anything for publication to your attribution without considering potential copyright issues.

The use of generative AI offers the ability to save time for repetitive tasks, increase efficiency, and enhance creativity safely when used with a proper understanding of the risks and safety measures. Different products have different characteristics and capabilities, but an understanding of the basics through practice now allows the informed professional to identify issues, create guard rails, and stay within the acceptable use of the product or application. Learning about how Chat GPT works has the added benefit of being able to understand the potential misuse or improper use of AI by others, including persons under your supervision or opposing counsel.

Using generative AI products from Bing, Open AI, or Claude will provide experience that will pay off when assessing tailored products that are currently on the market or will be soon. And countless products are in the offing. Lexis, Westlaw, and Caselaw are all investing in and offering AI enhanced versions of their products with potentially powerful advances. Entrepreneurs and current players in the legal field are competing to create AI-enhanced products for lawyers to use for supercharging law firm administrative and professional tasks in specialized areas and ways. In the eDiscovery and document management area, tried and true performers like Reveal, Relativity, Merlin, and others are introducing generative AI enhancements to their products. Smart people are working on solutions to the potential downsides of AI (confidentiality, bias, and hallucinations), while allowing legal professionals to safely access the enormous power of large language models and generative AI.

Demonstrations and trials for products in all the foregoing spheres are available for those who want a taste or are ready to shop. The more informed a consumer is about how the technology works and its potential benefits and risks, the better the search will go. Practical insights and knowledge gained by actual experience will lead to better questions to providers, more informed understanding of how products can actually work in your practice or job, and better selection of products that will actually work for you. There is no substitute for time behind the wheel or in the cockpit to cap off your acquired knowledge from reading or listening to descriptions or opinions from others, especially those selling a product.

Guiding Judges in Navigating AI Advancements

Judges need to understand the technology of AI well enough to recognize that it has pitfalls and potential issues and how to establish standing policies or guidelines and issue rulings that do not impede the appropriate use of AI by lawyers and litigants. Lawyers are already ethically obligated to understand and use technology properly. Creating additional roadblocks or limitations or requirements to disclose the use of AI through standing orders has a chilling effect on proper use and may invade work product protections. See Grossman, Grimm, and Brown, IS DISCLOSURE AND CERTIFICATION OF THE USE OF GENERATIVE AI REALLY NECESSARY?, Author’s Copy of Aug. 11, 2023, to appear in Vol. 107, Issue 2 of Judicature (Oct. 2023) found at https://www.jdsupra.com/legalnews/is-disclosure-and-certification-of-the-2071688/. Judges need to know this, and they can do so by learning the basics of AI and its advantages and hazards by using it themselves. Beyond awareness, use of AI can provide judges a handy law clerk and useful assistant.

Empowering Individual Lawyers to Harness the Potential of AI

Lawyers can save money and time through the use of AI, not to mention the potential creative advantages AI brings to the table in advocacy, persuasion, and negotiation. Ethical requirements nationally implicating AI are competence in the technology used by lawyers and by those they supervise and the duties of confidentiality and candor to the courts. As long as lawyers are informed and careful in using technology like generative AI, the competitive advantages are potentially limitless and within ethical bounds. Once AI passes the tipping point, it is likely that not being conversant in AI will become an ethical issue for lawyers because AI will be unavoidably pervasive in legal work. Gaining an early foundational and functional understanding of generative AI is a worthy investment of time.

Assisting Law Firm Leaders in Managing AI Integration

Those who employ or manage lawyers and other legal professionals are understandably concerned about the use of generative AI. The path forward for managers is the same as the lawyers they manage. Learn the technology well enough to identify issues and place reasonable requirements on those you employ or designate a responsible person with such knowledge. Create policies and procedures based on informed and measured standards on what types of products can be used and the tasks for which they can be used. Require the legal professionals to have sufficient knowledge and skills to use AI products properly and safely. This includes an understanding of potential limitations of the applications and specific safeguards on confidential and private information. Require accountability and transparency from legal professionals under your control and management. Maintain sufficient oversight on the types and uses of products to meet quality and information safety standards. Ensure that there is constant human input by the legal professional to all products of efforts using generative AI. Human and machine efforts should complement, not replace each other.

Advising Clients on AI Collaboration with Legal Counsel

Organizational clients and in-house counsel can benefit from a foundational understanding of AI enhanced lawyer performance. As always, communication between lawyer and client is crucial, and it is beneficial to learn from each other about AI because the emerging products and uses are so diverse. Ask your lawyers if they use AI and how they insure it is used ethically and safely. Learn about new technology together. Transparency is important, which requires the lawyer to demonstrate an understanding of the technology. Learn enough about AI capabilities and potential issues to clearly express expectations of counsel and your needs. Develop reasonable protocols for security and confidentiality during AI use. Ensure that your lawyers effectively use AI by weighing economical and creative advantages against risks. Client and counsel will gain better insight on the areas in which human insight and specialized knowledge need to be applied. Feedback and collaboration will maximize strengths and minimize risks. Stay informed about issues and advances in AI technology in the legal field and require your counsel to do the same.

If this sounds like a familiar formula, you are an excellent manager. Tried and true past frameworks may successfully be applied to the newest technology but only with a solid understanding of what the technology does and how it does it.

CONCLUSION

Knowledge through experience is the key to thriving in a technology-rich environment. Big changes and sea-change products are particularly daunting. Lawyers busy with deadline driven tasks should invest the time to learn about potentially time saving, economically friendly, and competitively advantageous generative AI tools that will improve rather than complicate their lives. Learn about it before you run from it. Managers in the legal profession will also benefit from understanding ways to encourage the proper use of AI rather than stifling innovative and productive use. As I have learned over and over, being among the first to master new innovations pays off exponentially down the road. That is what leaders do. They thrive rather than survive.

Invest time each week to read up on generative AI legal applications, and if you have not experimented with it, take the plunge. You will be glad you did.