By Marty Dolan and Karen Munoz
We have all seen artificial intelligence in action in movies like “The Matrix,” “Terminator,” “2001: A Space Odyssey” with HAL 9000, and the replicants in “Blade Runner.” While real-world AI may not be as dramatic, its potential is exciting, especially for our personal injury law practice. No longer a futuristic concept, AI technology provides opportunities to streamline tasks and enhance the ability of plaintiff’s firms to operate more efficiently, which will allow trial lawyers to focus more on client advocacy.
In this article, we will explore how AI can enhance our law firm and practices by examining its potential uses. We will also address the emerging ethical considerations that come with these advancements. While many companies and startups are praising AI’s superpowers, practitioners should be cautious and use common sense before committing to using AI-powered software programs. As the legal profession continues to integrate AI, understanding its applications and limitations is essential for staying competitive and delivering high-quality, ethical service to clients. As we dive into the ways AI can help our trial practices, it’s worth getting familiar with some basics of AI technology.
ChatGPT made waves globally, becoming the most recognized AI tool in 2023. Designed to generate human-like text in conversations and interactions, and trained on a vast array of internet text, it can understand context, generate responses, and engage users in conversations.[1] Recognizing its potential, many companies have developed AI research models tailored specifically for lawyers, such as Westlaw Precision AI and Lexis+ AI.[2]
Ways AI Can Be Used In A Plaintiff’s Practice: From Intake to Trial
From start to finish, what are some practical uses of AI tools out on the market? Potential current and future applications range from e-discovery, discovery drafting, document review and management and comprehensive legal research. Below we will discuss ways AI applications may be able to help Plaintiff’s lawyers and in personal injury law.
AI as an e-discovery tool: Many practitioners know that e-discovery traditionally has been time consuming and an expensive endeavor. AI algorithms can quickly sift through documents, emails, and other records to find relevant case specific information, pinpointing pertinent information based on specified criteria[3] and resulting in time savings. This not only accelerates the discovery process, which is key to moving cases forward, but also enhances accuracy, reducing the risk of human error. For example, in a medical malpractice case, AI can scan medical records to look for things like diagnoses, treatment dates, and treater names, freeing up attorney time to focus on higher-level strategic tasks.[4]
Crafting and drafting—AI in discovery requests: Discovery is where a case can be won or lost, laying the groundwork for gathering information on each element of the case theory, responding to motions for summary judgment and for the disclosure of expert opinions. AI can assist with drafting straightforward discovery to more complex documents for cases such as medical malpractice, or class actions.[5] It can also analyze drafts and give feedback and suggestions on areas to explore that may have been overlooked.
Accelerating document review for time savings: On any given day in a law practice, hundreds, if not thousands of documents are gone through, received, reviewed, stored and categorized by lawyers and staff. Whether these are in paper format or electronically stored, the process requires attention to detail and can be time consuming.
AI technology is able to process, analyze, and accurately review and tag documents, and use machine learning, allowing for more accurate identification of key information, document categorization, and flagging potential issues for further examination.[6] AI can also identify all documents related to a specific medical condition or treatment date, providing lawyers with quick access to relevant information in medical records without manually sifting through numerous files.
AI’s role in legal case research: Platforms like Lexis Nexis and Westlaw have integrated AI, allowing for quicker and more relevant search results. Westlaw’s generative AI enables searches that offer predictive suggestions and can recommend specific searches. It also provides analytics on judges, courts, and case outcomes, offering valuable insights.[7] This integration allows lawyers to spend more time on the refinement of their legal arguments, and less time going down research rabbit holes.[8]
Predictive analytics and forecasting a case’s path: Predictive analytics can provide valuable insights into case outcomes and legal strategies. By analyzing a judge’s past rulings and data on case specifics, AI can provide a probability of success based on the data it reviews. In personal injury cases, this can be helpful in assessing case value, a case’s chance of success at the motion to dismiss stage, summary judgment stage, and likelihood of success at trial.[9]
Navigating Ethical Challenges Raised By Artificial Intelligence
Now that we have touched on how AI can help lawyers in personal injury law, what are the implications to be aware of when a law firm considers using these tools? While AI can offer benefits, it also comes with significant ethical considerations and challenges that trial lawyers should be aware of; specifically, issues surrounding plagiarism, hallucinations, and the accuracy of AI-generated content.
Be mindful of ethical rules: The ethical integration of AI into legal practice requires an intentional understanding of both the capabilities and limitations of these tools. Under the Illinois Rules of Professional Conduct, lawyers have a duty to provide competent representation to their clients; this includes being able to use technology efficiently. Competence, as defined by Rule 1.1, requires legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.[10] When integrating AI-powered tools into practice, lawyers should ensure that the technology aids rather than hinders their ability to meet these standards.
Also be mindful of Rule 1.6, which pertains to confidentiality. [11] Exercise caution when deciding what data to input into AI tools, to ensure that client confidentiality is not breached. Additionally, Rule 5.3 requires lawyers to supervise the use of non-lawyers, including case managers, and that oversight extends to the use of AI technology and tools.[12] Be careful of data protection, ensuring the necessary security precautions are in place to mitigate data breaches. Lastly, ensure software is HIPAA compliant if using it to review sensitive medical records or information.
Navigating potential plagiarism issues: The potential for plagiarism commonly arises in AI usage. AI can inadvertently produce content that closely mimics existing sources, raising concerns about plagiarism. Rule 8.4(c) of the Illinois Rules of Professional Conduct prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation.[13] Be vigilant to ensure that AI-generated content does not inadvertently lead to plagiarism.
The ABA recently released its first formal opinion regarding the use of generative AI in the legal profession.[14] Key highlights include ensuring client confidentiality, understanding AI’s limits, and the setting of clear workplace policies to ensure a lawyer’s usage is ethically compliant[15]. The ABA’s guidance reminds us to use common sense, stay up to date on bar association opinions, and court orders to ensure adherence to ethical standards[16].
Safeguarding for accuracy: AI technology can hallucinate, leading to false results. AI hallucinations result from AI generating information that appears plausible but is factually incorrect or entirely fabricated.[17] This poses a pronounced risk for lawyers using AI. The duty of competence under Rule 1.1 requires lawyers to verify the accuracy of information used in their practice.[18]
While AI can be a valuable tool, lawyers should carefully review AI-generated content to ensure its accuracy. Since AI’s relatively recent introduction to the practice, many attorneys have been called out publicly for using AI without care, leading to fines, and reprimands by disciplinary boards. In 2023, a federal judge in New York fined personal injury lawyers for submitting a legal brief written by ChatGPT, which contained fabricated court opinions and quotes.[19] This is a cautionary story that reinforces the need for careful oversight when using AI. Always verify your research.
AI for Personal Injury Lawyers and All Lawyers Requires Vigilance
AI should be viewed as a tool that enhances, rather than replaces, the lawyer’s expertise. The Illinois Rules of Professional Conduct, along with the new ABA formal opinion, emphasize the lawyer’s responsibility to ensure that all work product is accurate and ethically sound.
Ultimately, the plaintiff’s bar has both a responsibility and an opportunity to lean into learning about AI’s potential uses, and to also make sure any use complies with ethical rules and court orders. But just as with any new technology, we should remain clear-eyed and careful in using it. Respect the technology’s intelligence, but also know it can be wrong. Double-check AI-generated material you intend to use. Keep up to date on the new applications that can enhance your practice, and the services provided to clients. Do not shy away from AI but remember, we are in the people business, and it is our ability to connect and emphasize that sets us apart. Our humanity distinguishes us from artificial intelligence, and clients are always best served when the relationship with their lawyers is embodied by trust, respect, and transparency.
Marty Dolan is the owner of Dolan Law in Chicago. With over 30 years of experience in complex litigation, he handles catastrophic injury, wrongful death, and crime victim cases. He also serves on the Illinois Supreme Court Rules Committee and the ITLA Board of Members.
Karen Munoz is a plaintiff’s personal injury attorney at Dolan Law representing survivors of traumatic injuries and events. Learn more at DolanLegal.com.
[1]Palmer, Mike C. (2023). Getting Started With ChatGPT for Lawyers. 2Civility.org. 24 August 2023. https://www.2civility.org/getting-started-with-chatgpt-for-lawyers/ Retrieved 29 August 2024.
[2] Black, Nicole. (2024). Legal Research Tools In The Age Of Generative AI. ABA Journal. 25 March 2024. https://www.abajournal.com/columns/article/legal-research-tools-in-the-age-of-generative-ai Retrieved 29 August 2024.
[3] Relativity aiR. 2024. https://www.relativity.com/data-solutions/air/. Retrieved 29 August 2024.
[4] “AI Tools for Lawyers: A Practical Guide.” Bloomberg Law, June 10, 2024. https://pro.bloomberglaw.com/insights/technology/ai-in-legal-practice-explained/.
[5] Hanzo. 2024. https://hanzo.co/spotlight-ai/. Retrieved 29 August 2024.
[6] Aguilera, Adrian. “How AI for Legal Documents Helps Lawyers.” MyCase, July 1, 2024. https://www.mycase.com/blog/ai/ai-for-legal-documents/#:~:text=In%20document%20management%2C%20AI%20tools,manage%20large%20volumes%20of%20documents.
[7] “Thomson Reuters Unleashes the Power of Generative AI in Westlaw Precision.” World Litigation Forum. Accessed July 17, 2024. https://worldlitigationforum.org/news/thomson-reuters-unleashes-the-power-of-generative-ai-in-westlaw-precision/.
[8] Schwarcz, Daniel and Jonathan H. Choi. (2023). AI Tools for Lawyers: A Practical Guide. 108 Minnesota Law Review Headnotes 1 (2023), Minnesota Legal Studies Research Paper. 14 April 2023. Revised 27 October 2023. https://ssrn.com/abstract=4404017. Retrieved 28 August 2024.
[9] Health, Ryan. 2023. AI Tells Lawyers How Judges Are Likely To Rule. Axios.com 12
September 2023. https://www.axios.com/2023/09/12/ai-judges-trials-predictions. Retrieved 29 August 2024.
[10] Ill. S. Ct. R. 1.1 https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/a6dcb9d0-59c0-4ffd-87b9-d610d8eeac93/RULE%201.1.pdf
[11] Ill. S. Ct. R.1.6 https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/10d7b59d-8133-4cd6-b088-8e85c3004e21/RULE%201.6.pdf
[12] Ill. S. Ct. R. 5.3 https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/cb39eea7-9ab0-4179-bc55-9200fa2efb23/RULE%205.3.pdf
[13] Ill. S. Ct. R. 8.4(c). https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/930b5341-8cf9-4b21-9650-5db4fa645c5a/RULE%208.4.pdf.
[14] American Bar Association Standing Committee on Ethics and Professional Responsibility. (2024). Formal Opinion 512. 29 July 2024. https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-512.pdf
[15] Id.
[16] Id.
[17] Magesh, Varun, Faiz Surani, Matthew Dahl, Mirac Suzgun, Christopher Manning, and Daniel Ho. “Ai on Trial: Legal Models Hallucinate in 1 out of 6 (or More) Benchmarking Queries.” Stanford HAI. Accessed July 17, 2024. https://hai.stanford.edu/news/ai-trial-legal-models-hallucinate-1-out-6-or-more-benchmarking-queries.
[18] Ill. S. Ct. R. 1.1 https://ilcourtsaudio.blob.core.windows.net/antilles-resources/resources/a6dcb9d0-59c0-4ffd-87b9-d610d8eeac93/RULE%201.1.pdf
[19] Cozewith, Stacey and Matthew Eichen. 2024. What Should We Know About AI And How Should We Use It? ALM Law.com 26 June 2024. https://www.law.com/njlawjournal/2024/06/26/what-should-we-know-about-ai-and-how-should-we-use-it/?slreturn=20240729100140 Retrieved 29 August 2024.