How is AI changing the skills expected of professionals in your jurisdiction?
Presently, the availability of AI tools has not changed the skills expected of litigation attorneys in California. Some attorneys may be using AI for drafting and editing to improve their writing abilities. Others may use it in research to identify authorities they were not able to locate, or to locate more quickly what they could find using the many legal research and writing tools already available. AI usage among litigators appears to have increased rapidly within a very short period of time, but it has not replaced the varied skills and experience needed to be an exceptional litigator. In other words, it may assist with speed and organisation, but cannot replace advocacy, courtroom instinct or the ability to understand how a judge may react to an argument.
Litigators are expected to have superior skills without the use of AI tools. However, as of the past year or so, attorneys are expected to also have an awareness of the misuse of AI by themselves, colleagues, opposing counsel, and the courts. AI usage currently creates a heightened need to identify fake citations, misquotes, hallucinations and omissions. These errors can easily find their way into research, written work, court filings or advice if outputs are not checked carefully. Outputs must be verified in order to practice law without facing court sanctions, professional misconduct and harm to clients. This includes misuse within a law firm, by opposing counsel, possibly by clients and especially by court personnel, including judges. The monitoring of AI abuse has added further worries about professional liability risk and requires additional effort by everyone involved to ward off the many possible pitfalls of misusing AI tools in litigation.
There is a deep concern in the profession that future reliance on AI tools by inexperienced attorneys will result in much lower levels of skills, personal experience and strategic judgement than what is required to obtain the best results possible for clients. While junior attorneys will become savvier about the use of AI tools through their law school curriculum and personal interests, that knowledge does not take the place of the experience and judgement needed to win in court or advise clients in complex and contested matters. Much of litigation skill is developed through the repetition AI often removes: reviewing records, drafting arguments, testing authorities and learning from mistakes under supervision. To any extent that law firms replace junior attorneys with AI time-saving tools, they run the risk of losing the next generation being ready to step up to the challenge of litigating against accomplished opposing counsel.
What governance or supervision structures are firms and businesses putting in place to manage AI responsibly?
Most employers in white collar businesses, including law firms, should have already put in place a carefully considered AI usage policy and trained, and retrained, employees on the availability and proper use of AI tools at work. An adequate AI usage policy is not an off-the-shelf template circulated among employees or something added without fanfare to the employee handbook. Furthermore, training should continue to be repeated regularly, because both the available tools and the risks associated with them are changing quickly.
Based on knowledge of the AI tools available for the business as well as the ones their employees are already using to shortcut work, management should develop carefully considered policies in light of existing and future technology, with an eye to how to detect and address misuse of AI. This should include clear guidance on what tools may be used, what information may be entered into those tools, who is responsible for reviewing outputs, and what steps must be taken when misuse is suspected. The policy should be circulated with intentionality, emphasised through training, enforced systematically, abuses discovered, and employees counselled on misuse.
With respect to law firms in particular, the misuse of AI risks public exposure of attorney-client privileged information, attorney work product, and confidential and proprietary information of clients that attorneys are bound by ethical rules to protect. It may also create avoidable risks in court filings, client communications, internal work product and regulatory compliance if AI-generated material is relied upon without adequate review.
What liability or risk issues arise when professionals rely on AI-generated analysis or advice?
There are numerous examples of attorneys throughout the US who have been publicly reprimanded and sanctioned by state and federal court judges for their imprudent reliance on AI. These have involved AI-generated analysis, citation of erroneous legal authorities, mistaken facts, or all three. All examples have made it clear that courts will not excuse inaccurate filings simply because AI was involved in preparing them.
Litigators risk losing at court, being dumped by their clients and harming their own reputation by misusing AI to try to shortcut the process of analysing complicated legal issues and providing sound client advice. The damage can extend beyond a single case, particularly where sanctions or judicial criticism become part of the public record.
As attorneys increase their reliance on AI tools without careful monitoring and checking results, the risk of liability will increase and with it the expense of insurance for professional liability. Firms may also face greater scrutiny from clients, insurers and regulators regarding the controls they have in place. A deeper understanding of how AI technology actually works, along with the time-saving tools coupled to AI engines, is one of the best ways to stay on top of the many changes ahead and the increasing pressure to implement AI into the practice of law.
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