On AI-assisted arguments.

By now, you would have heard of 2 lawyers likely to get into trouble thanks to ChatGPT.

I won't rehash other commentators' views.¹

But I suggest that this incident provides insights into:

(a) how lawyering is done; and
(b) how lawyering should be done, in the age of AI.

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First, how is lawyering done?

Let's consider, specifically, written submissions to the Court.

Here's one possible approach.

The lawyer starts with the end goal - what exactly is the order they want from the Court?

The lawyer then considers how to persuade the Court that this is the right order to be made. They then prepare written submissions addressing, in no particular order:

(a) the facts giving rise to the dispute;
(b) the parties' respective positions;
(c) what is the evidence that proves, or disproves, each party's factual position; and
(d) based on that factual position, what the law says is the right outcome.

And "the law" includes² previously-decided cases that (a) set out legal propositions; (b) apply these propositions to the facts of those cases; and (c) explain why, when these propositions are applied to these facts, the Court should order a certain outcome.

Now, in a perfect world, lawyers would be able to go into some legal search engine, and find, with minimal effort, a previously decided case:

(a) in which the Court considered the precise same issue;
(b) involving facts identical to those in the present case; and
(c) in which the Court ordered the exact outcome which the lawyer wants.

Alas, we do not live in a perfect world.

The reality is that lawyers often spend hours, even days, trying to track down such cases. And they may well end up empty-handed even after an extensive search.

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Now, say you're a busy lawyer. You've heard of a new tool called ChatGPT, which is apparently the bee's knees. You can ask questions and get answers, like some magical genie!

You've got submissions to be filed. You know the order you want. You've got the facts. You know the legal proposition that you want the Court to apply. But you haven't had the chance to find cases supporting this proposition, and your hoped-for conclusion.

So you give ChatGPT a shot. You ask ChatGPT to provide some cases that prove your point. It obliges. You list these cases in your submissions, and file the submissions without actually retrieving these cases.³

Of course, we now know that this won't end well.

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I am not completely unsympathetic to the predicament of overworked lawyers.⁴

But.

I have no sympathy for those who ignore their duties as officers of the Court.

Because, surprise, that's what lawyers are, first and foremost.⁵

So does it mean that lawyers cannot use ChatGPT and AI?

I suggest that this approach would be too simplistic.

So how can lawyers use AI in the course of their profession?

I'll explore this in more detail, in the next few posts.