AI Summit_Sept. 13 2024

9/11/24, 4:57 PM

Navigating a Shifting Landscape | AAJ

The most important thing to do is to read the terms of service. Most of us click through them, and we have no idea what we’ve agreed to. But you need to know when you’re inputting data to the third-party tool if other people will have access to it and for what purposes. If you are purchasing a license for a tool for your law { rm, then you may have negotiating capabilities in the contract to specify how long the prompts are retained, whether the prompts and answers can be used to train the tool, and so forth. Another big area has been “trust but verify,” or “don’t trust and verify.” Some people have written briefs using ChatGPT without understanding that if these tools are not { ne-tuned for the law and trained speci { cally on legal materials, they can make up or “hallucinate” case law. If you ask about Roev.Wade , it’s likely to get the answer about that case right because there’s so much written on the internet about it. But if you ask for any case that says “X,” and if the tool can’t { nd one that’s common, it will just make one up and give you that as an answer. And obviously, citing something like that violates Federal Rule of Civil Procedure 11 and other equivalent state court rules that require candor to a court. It can get lawyers in trouble for not properly supervising—the same way they wouldn’t submit work prepared by a paralegal or new associate without reviewing it. And then you need to know how the people in your { rm are using AI—and have the proper policies and training in place. For example, there’s at least one court in the Northern District of California that requires the preservation of “all prompts or inquiries submitted to [a] third-party AI tool[ ]” in connection with a { ling before that court. If you practice before that court, you need to know how long the prompts are stored in the AI tool you use and how you can get copies of them. Another big issue is fees. How do you charge for work performed using AI? The original brief might take 20 hours to write, but now with an AI tool it might take { ve hours for your time editing it. Can you bill for 20 hours? No, you can’t. You can bill the time it actually takes, or perhaps you can arrange a { xed fee with your client in advance, but your fees have to be reasonable and transparent to your client. I think we’re going to be rethinking these issues as we see more e ~ ciencies from AI. This website uses cookies and tracking technologies to optimize your experience.  Privacy Policy

You mentioned that AI tools might hallucinate answers. What are some other concerns?

It’s really up to the lawyer to know whether the tool they’re using is something that’s reliable for research purposes. It’s a reasonable assumption that if a tool baked into Westlaw or Lexis cites a case, it’s likely to be a real case. That doesn’t mean you shouldn’t read or check it, but I’d be a lot less worried in that circumstance versus asking ChatGPT to { ndacase.

AI Roundtable Page 48

https://www.justice.org/resources/publications/trial-magazine/2024-june-navigating-a-shifting

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