You can’t swing a stick these days without seeing another article or discussion about ChatGPT and other generative artificial intelligence (genAI) tools and how they are reshaping legal practice. The reality for many of us, though, is that we and our law firms are too engaged in our day-to-day responsibilities to spend much energy or time focused on a “new digital tool.” But writing genAI off as just another “new digital tool” sets us up to miss a dramatic opportunity. The opportunity of what genAI offers to law firms was made clear during July's Professional Development Consortium Conference in Charlotte, North Carolina.
Over the course of an engaging and dynamic lunchtime presentation and discussion, attendees had the opportunity to learn about genAI, see it in action, and discuss some of the ways this “new digital tool” is going to reshape the practice of law. Here, we want to briefly recap the broad state of confusion around genAI in the legal community, summarize some of the use-cases suggested during the Conference, offer another powerful vision of how genAI will change the future of our practice, and, importantly, offer a serious caution that should temper and inform your law firm’s response to and adoption of genAI.
First, a genAI explainer, courtesy of ChatGPT.
Generative AI, a facet of artificial intelligence, operates through advanced algorithms that analyze vast datasets to comprehend patterns and generate new content in a manner similar to human output. It utilizes deep learning models, such as Generative Adversarial Networks (GANs) or Transformers, to synthesize text, images, or other types of data, which means it can create new content that did not exist in the original dataset. For instance, in text synthesis, the AI system can generate coherent and contextually relevant paragraphs, articles, or even stories by learning from a diverse range of existing text. Similarly, in image synthesis, AI can generate new images, artwork, or graphics based on patterns it has learned from a large collection of existing images. This capability to produce original content from existing data makes generative AI a powerful tool with various applications, including document generation in the legal domain, where it can create contracts, legal briefs, and memos, taking into account specific contextual information and language intricacies. The system's ability to learn from large datasets and imitate human-like creativity holds immense promise in enhancing the legal practice and other creative endeavors.
Given this broad capability description, it may be hard to appreciate what his can mean in real life, and the conference was shown a powerful live demonstration to drive home the power of genAI to assist users. Using a prompt that essentially asked ChatGPT to draft an email to a lawyer that delivers constructive, but firm, performance review feedback, ChatGPT returned an appropriate, well-written, multi-paragraph email that captured her intent. Drafting of the prompt and receipt of the output email took about 90 seconds. Even with redrafting (e.g., asking ChatGPT to rewrite the email in more/fewer words, with a more terse tone or more empathy, or expanding to include a specific example), getting to the first draft of this sort of sensitive communication can take five minutes or less instead of 30-45. In the abstract, this may not seem like a time savings worth getting worked up over. Compounding this time saving across dozens of performance evaluations, however, quickly shows the power of genAI.
But what about the practicing lawyers, not just the HR, professional development, and non-legal staff? A few practical use cases are useful.
- Imagine asking your genAI tool to read correspondence from opposing counsel requesting to meet and confer about a particular topic at a particular time. Instead of personally reviewing all of your past correspondence, consulting calendar availability for you and your co-counsel, and re-examining pleadings and other court documents – and assuming your genAI tool had access to the appropriate matter-related information – attorneys could simply ask the genAI tool to draft a response, in a firm but professional tone, suggesting a meeting at least 8 days in the future, when all counsel are available, and suggesting the meeting focus on the most recent issue in contention between the parties.
- Imagine asking your genAI tool to review a 300-page contract proposal in a complex intellectual property licensing and partnership arrangement and instructing it to cite to any paragraph that creates client obligations or responsibilities outside of certain pre-set parameters.
- Imagine receiving from the court an order to respond to opposing counsel’s eve-of-trial filing seeking disqualification of counsel for alleged conflicts of interest arising from the firm’s past representation of a witness in an unrelated, but similar, matter.
In each of these examples, the speed of communication goes up, efficiency goes up, client costs for attorney time and attention go down. The floor of minimum quality drafting comes up. The attorneys’ attendant stress decreases knowing they can rapidly produce the required materials, and they are more intellectually engaged because they can focus on the higher-order work of crafting litigation strategy, client engagement, and interface with the court, rather than the mechanics of first-drafting.
There are other possibilities, too. With the right foundational data and well-crafted prompts, genAI can be a ‘thought partner,’ suggesting potential arguments, helping outline client proposals, and creating after-action summaries. Beyond the written word, certain genAI tools also work with sound, images and video. These can be used to create specific recreations or demonstratives for use in trial or presentations. We think, though, that one of genAI’s superpowers will be its ability, in the near future, to create dynamic, live, infinitely configurable training scenarios that law firms and individual attorneys can use to develop practical legal skills, as well as nuanced interpersonal, managerial, or leadership capacities.
We imagine a digital training sandbox in which genAI can play the rule of opposing counsel and an expert deponent witness in order to improve deposition skills. Or a judge, counsel, and reluctant witness to train examination and cross-examination. Or belligerent opposing counsel intent on delivering an opening statement full of argument, in order to develop a sensitivity for when to object in such a situation. Or six colleagues preparing for a significant client engagement event, where each has a slightly different understanding of the goals of the engagement and different personal interests that might shape their preferred scope of work. Or a poor-performing associate to whom a new partner needs to give constructive (negative) feedback. GenAI’s ability to respond dynamically, and uniquely to every interaction, means this sort of skills training no longer relies on scripts or multiple-choice scenarios. Even running the same scenario consecutively will produce slightly different results.
This can change how a law firm practices its business of delivering client service and also how it develops its attorneys and staff.
But the future is not just a utopia of efficiency, and we have already seen examples of lawyers’ blind reliance on genAI without understanding its risks and of courts reacting in ways that may stifle innovation, increase client costs, and create additional barriers to access to justice. There are critical concerns—ethical imperatives—that lawyers need to be mindful of as they consider adopting genAI into their practice.
The first of these concerns centers on the tools themselves. As described above, generative artificial intelligence is, basically, a very sophisticated language predictor. When asked a question, it surveys its body of data and predicts, word by word, an answer that would likely be true. Note, however, that it is not predicting truth, only a prediction of what truth might be. Given the right data set and the right prompt, the answers provided are likely to be suitably and reliably accurate. But not always.
Where the data, the model, or the prompting are lacking, genAI tools will generally ‘try their best’ to answer a question. This predisposition to answering a question, satisfying the user, makes these tools susceptible to “hallucination.” This is the possibility of creating a pleasing but factually inaccurate string of words.
The tool may ‘make up’ an answer. Hallucination may occur as quotes or citations that do not exist, and this is, obviously, dangerous for attorneys. They must understand, broadly, how genAI works and what the risks are to using it, not just its benefits. It is (or should be) a standard of practice that attorneys fact-check and cite-check material produced by genAI. Attorneys in a supervisory capacity—which includes any attorney working with another lawyer, paralegal, legal assistant, secretary, investigator, intern, or expert—should understand their obligation to oversee the work of those they supervise. Attorneys in a managerial capacity should ensure the practice groups, offices, and firms they manage have the training and are creating the culture necessary to use genAI effectively and ethically.
These concerns can lead to fear and anxiety on the part of attorneys and employees who do not understand genAI or see only the risks and not the potential. This means managers and leaders will have increased challenges in fostering engagement, trust, and loyalty across their organizations. This sea change in the practice of law will require professional development staff to operate and advocate with greater detail and nuance if they want to position their firms and their attorneys to be successful, even in the near future. The genAI revolution is not a ten-years-from-now challenge. How, then, to take advantage of the opportunity it presents?
The playbook is simple: knowledge, structure, and curiosity.
Everyone involved in the practice—from attorneys and paralegals to professional development and HR professionals—must learn as much as they can about genAI. For some, though, that imperative is more important. The best professional development teams (even it you are a team of one) are not only responding to attorney development requests, but they are also looking around the corner at what the future of the practice will require, and the future of legal practice will require an understanding and appreciation for genAI. The nuts and bolts of how a firm or practice incorporates genAI will differ because of any number of factors, but at the root, lawyers and firms that do not understand and appreciate genAI will suffer for that ignorance. Legal organizations can obtain the requisite knowledge through study, collaboration, hiring, etc. The method is largely immaterial so long as the requirement of learning is satisfied.
With learning in place (and continuing), firms need to create a structure around its use of genAI. Because of the rate of change in the world of genAI, this structure should be clear, but flexible. Rigid rules will stifle opportunity, send genAI ‘underground,’ and hamstring client service. An appropriate structure will set a few hard limits, primarily around ethical obligations and the firm’s core values. Beyond that, guidance should be flexible enough to give attorneys and staff the room to ‘play’ with these tools and to explore the edges of their utility.
Most importantly, everyone involved should stay curious about how genAI can support their practices. That means actually using— ‘playing with’—selected genAI tools. A vendor’s capabilities brief should be the beginning of a dialog with both the vendor and the tool. Without that curiosity, lawyers and firms will be stuck in their caves, hiding from fire because they might get burned and forget how easily that fire might feed and sustain them.
Article originally posted on the Professional Development Consortium blog, PDC Link.
 The generic term “genAI” is used to include the broad category of apps and services that leverage machine learning and large language models to provide new and unique responses to queries rather than returning particular terms or data via search.  For simplicity, we refer to “law firms” with the intent of capturing all forms of legal services providers, including corporate general counsel offices, government legal offices, and non-profit legal providers. The issues benefits and issues discussed here are relevant to every form of legal service delivery.  The AI-generated text is provided verbatim. Record of generation is available here - https://chat.openai.com/share/00fa1c55-82a5-4883-af5d-9e3bace1b969.  The incorporation of genAI tools into self-service legal resources may significantly expand access to justice by lowering the bar to legal services.  See, American Bar Association Model Rule of Professional Conduct 1.1, cmt  (“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”).  Id, Rule 5.1 (Responsibilities of a Partner or Supervisory Lawyer) and 5.3 (Responsibilities Regarding Nonlawyer Assistance).  Id.  See, e.g., OpenAI Terms of Service (relevant to use of ChaptGPT), available at https://openai.com/policies/terms-of-use ("We may use Content from Services other than our API (“Non-API Content”) to help develop and improve our Services.).  See, ABA Model RPC 1.6.  See, Cheat GPT: The hidden wave of employees using AI on the sly, https://www.businessinsider.com/chatgpt-secret-productivity-work-ai-technology-ban-employees-coworkers-job-2023-8.