One of the most talked about issues last year facing the legal industry was the emergence of artificial intelligence (AI). Courts and firms have wrestled with the appropriate response to AI with varied approaches. Accordingly, we wanted to revisit the industry’s response to a similar technological change: the advent of digital legal research platforms such as WestLaw and Lexis.
Beginning in the 1970s and culminating in the late 1990s, legal research providers such as LexisNexis and Westlaw introduced digital research. From first accessing it via research terminals to personal computers and high-speed at-home internet, the transition had a longer life cycle than what we are witnessing with AI. Regardless, in the end, these legal research platforms transformed the practice of law.
What lessons can be learned? We asked two individuals for their thoughts. Richard K. Herrmann, Esquire, long considered one of the leading technologists in the bar, was a managing partner of his law firm during the early days of digital research and was among the first Delaware attorneys to introduce personal computers to his firm. Kevin F. Brady, Esquire, was in law school when digital research emerged and has since had experience at large law firms and in house at large corporations. Here’s our conversation:
Q: When digital legal research was first available to the bar, did your firm have concerns about its use?
Brady: Yes, when electronic legal research first became available, law firms were very cautious. There were several concerns regarding the accuracy and comprehensiveness of the research databases. Additionally, there was skepticism about the reliability of the technology and whether it would be viewed by judges as a trusted approach over traditional methods.
Herrmann: I believe our firm was the first to have electronic research through Lexis in Delaware. I was involved in a case dealing with the defense against the family of a 15-year-old boy who was severely injured when he dove into an above-ground swimming pool. I’d been manually researching for an assumption of the risk defense through the West key index system. I could find nothing. We had a Lexis sales representative displaying her product in our conference room. She asked for something she could research and I gave her the search terms “above-ground swimming pool,” “injury and/or accident,” and “Delaware state or federal.” Instantly, she found a case in the third circuit, Colosimo v. May Department Store. It was directly on point dealing with assumption of the risk and above-ground swimming pools. We signed up for Lexis that day.
Q: Did your firm enact any policies in response to digital legal research?
Brady: Yes, law firms enacted policies to ensure the effective and responsible use of electronic legal research tools. There were guidelines on when and how to verify the information obtained from electronic databases, including cross-referencing with traditional hard-copy sources. Training sessions were conducted to familiarize attorneys with the new technology and to ensure they were using it efficiently. Additionally, there were protocols established for documenting and citing electronic research to maintain the integrity of the legal research.
Herrmann: I don’t believe our firm had any policies regarding electronic research. However, at the time, best practices were to consider electronic research as secondary and manual research as primary.
Q: Looking back, would you have done anything differently?
Brady: In hindsight, I would have advocated for more “early adopters” for the bench and bar to facilitate a more rapid and enthusiastic adoption of electronic legal research tools. While the approach was cautious and methodical, the legal community could have benefited from embracing the technology sooner.
Herrmann: I would have required all lawyers using electronic research in our firm to have undergone significant training. We did a test with associates researching a fact pattern against Lexis and Westlaw trainers. Associates spent hundreds, if not thousands, of dollars more doing the research.
Q: Based on your experience with the transition to electronic legal research, do you have any recommendations for firms and courts dealing with the advent of artificial intelligence?
Brady: I would recommend that firms and courts approach the advent of AI with an open mind and a critical eye. It is important to invest in training and education to ensure that legal professionals understand how to use AI tools effectively and, most importantly, ethically. Establishing clear guidelines and protocols for the use of AI in legal research and practice is crucial. Additionally, continuously evaluating and updating these policies as the technology evolves will help maintain the integrity and reliability of legal work.
Herrmann: I think the primary danger of artificial intelligence will be related to lawyers who are attempting to use free or inexpensive versions for business purposes rather than spending the money to use the products offered by Lexis or Thomson Reuters.
Looking Ahead
As 2025 begins, it is likely that AI will continue to dominate discussions within firms and courts. If history repeats itself, artificial intelligence will transform the legal industry. But as with digital research, understanding what tools are being employed and having the requisite training will ensure a successful transition.