AI: We Are About to Go Where No One Has Gone Before
The Bencher—July/August 2024
By Kevin F. Brady, Esquire, and Richard K. Herrmann, Esquire
We face two diametrically opposed issues. On the one hand, is it unethical for a lawyer to use artificial intelligence (AI) technology to determine whether a party is lying? The technology currently exists to allow lawyers and judges to analyze micro-expressions and voice stressors from a recorded deposition, without the consent or knowledge of the party. On the other hand, does the failure to use such technology amount to an ethical violation under Rule 1.1, or does it even rise to the level of malpractice if the technology is readily available and not used?
While no court has yet to be confronted with these issues, it is only a matter of time. More than 10 years ago, the Delaware Supreme Court anticipated the bench and bar would be constantly confronted with the impact of emerging technologies on the practice of law. In 2013, shortly after the amendments to the Rules of Professional Conduct, the Delaware Supreme Court created its Commission on Law and Technology. Its mission has been “to address developing technologies and to identify critical technological needs and gaps.” Throughout the past decade, the commission has been studying the impact of technology and educating the bench and bar on its use and the issues associated with its misuse.
The commission is currently chaired by Supreme Court Justice Karen Valihura and Superior Court Judge Sean Lugg. Together, they have emphasized the commission’s “commitment to improving access to justice for all through developing technology and educating attorneys and self-represented litigants in their understanding of and use of technology.”
It is fair to ask, “Why is a decade-old court commission so noteworthy as to warrant an entire article in The Bencher?” The answer is a clear one: we are on the edge of a new age in the growth of technology. The associated legal and practice issues have yet to be imagined. Although machine learning and artificial intelligence have been circling us for a few years, only recently has AI become mainstream, as a result of the release of ChatGPT-3. We now have class actions relating to privacy issues associated with facial recognition, as well as pending federal and state legislation relating to AI. Courts are issuing standing orders on its use in briefing; law firm vendors are now offering new practice tools that may have a greater impact on the practice than computerized research had in the 1980s or electronic filing had in the 1990s.
AI legal issues reach far beyond ChatGPT. The copyright litigations brought by companies such as The New York Times against OpenAI are the first in a plethora of lawsuits. Autonomous vehicle product liability suits have joined the fray, as well as class actions relating to facial recognition privacy violations.
Law firms are holding themselves out as experts in medical malpractice cases involving the improper use of artificial intelligence. Lawsuits have been filed claiming that insurers have been wrongfully denying elderly insured benefits resulting from the algorithms in their AI programs. And, among our growing awareness of racial bias, more and more organizations, public and private, rely on facial recognition.
Of course, the subject of AI is not confined to litigation. The American Bar Association offered eight webinars and virtual meetings this past spring relating to AI. Topics covered AI and consumers, entertainment and sports law, and practice management. A simple online search of “lawyers AI experts” will make you smile when you see how many law firms are already holding themselves out as AI experts. This is not to say that law schools won’t be turning out AI experts. New York University is offering a cyber law master’s program with an emphasis on AI in Cybersecurity. Harvard University, Vanderbilt University, University of Pennsylvania, Georgetown University, and William & Mary offer courses in AI, and University of California, Berkeley offers a three-day executive program with its Berkely Law AI Institute.
The courts are implementing AI as can be seen in the February 2024 “State of the Courts Report 2024” issued by Thomson Reuters. And the courts, as well as all of us, ought to also be concerned with use of AI by hackers. A quick glance online makes it clear that the future of hacking is AI. We need to focus more and more at the law firm and court level on encrypting our information at every opportunity so that the information cannot be held hostage under threat of nefarious use.
Now is the time for more state and federal courts to follow Delaware’s lead. We need to stay ahead of this technological tsunami—far ahead. Historically, advancements in technology have been significant and rapid. In fact, metrics show that the computational capacity of computers has increased exponentially, doubling every 1.5 years from 1975 to 2009.” There is no reason to believe it will slow down.
And, as we become more concerned with AI’s impact on privacy—its use and misuse—the legal issues involving all of this will become more and more complex. This article is a “call to action” for all of us, members of the bench and bar and the American Inns of Court, to rise up to the challenge and engage, rather than react, to the changes to come.
Delaware also has the distinction of having the first Technology Inn of Court, chartered in 2009. Now is the time to study emerging technologies that will have an impact on the law and its practice. The American Inns of Court needs more collaboration and more mentoring when it comes to emerging technology. And with the ubiquitous use of remote meetings, it may be time for the first virtual national Inn, dedicated to AI and other emerging technologies.
The use of these new technologies may very well make our collective lives better, but it will also make our professional lives more complex. We cannot afford to let it get ahead of us.
Kevin F. Brady, Esquire, is senior counsel, e-discovery and records information management (RIM) at Volkswagen Group of America Inc. He is a past president of the Richard K. Herrmann Technology American Inn of Court in Wilmington, Delaware. He received the 2004 American Inns of Court A. Sherman Christensen Award and is a member of the American Inns of Court Leadership Council. Richard K. Herrmann, Esquire, is associate director of research, Center for Legal & Court Technology at William & Mary Law School. He is also a member of the Herrmann Inn. Both served previously as a technology columnist for The Bencher.