THE LEGAL WRITING
CORNER The New ( ish ) Kid in Town : AI-enhanced legal research and writing
By Jennifer Cook , Denitsa Mavrova Heinrich , and Jenny Samarzja
There is a new ( ish ) legal researcher and writer in town . You might already know the newcomer if you frequent platforms like Westlaw or LexisNexis . These platforms have already incorporated artificial intelligence ( AI ) into their products , resulting in a more effective and efficient legal research process .
Beyond the legal sphere , ChatGPT , an AI-enhanced web platform created by OpenAI , has dominated recent news headlines for its ability to respond to users ’ queries with swiftly drafted , although often inaccurate , 1 composition . A university , for example , had ChatGPT write a consoling email to its students in response to a campus gun violence incident . 2 High school and college students use ChatGPT to complete writing assignments , sparking concern from educators about cheating and the future of teaching and learning critical thinking and writing skills . 3 The platform is widely hailed for its revolutionary processing and writing proficiency . But it is also criticized for its misleading or downright false content , potential to eliminate jobs , and subvert long-held principles of privacy and humanity . 4 Nevertheless , AI-enhanced platforms are rapidly becoming omnipresent and the way of the future . So , what is a writer to do ? Use the technology competently and ethically .
What is AI ?
Computer and technology experts define AI in different ways – from incredibly complex to oversimplified . To avoid the pitfalls of both , we define AI here as “ the capability of a machine to imitate intelligent human behavior ” or “ machine learning ” that results in a computer program that attempts to “ derive meaning out of [ large amounts of ] data ” to make decisions , predictions , or “ automate human thought .” 5
AI-Enhanced Legal Research & Writing
Every lawyer is already using AI-enhanced platforms to research a client ’ s legal issue . For example , any natural language query a lawyer performs in Westlaw or LexisNexis is supported by the platforms ’ AI . AI uses key search terms to predict and suggest relevant statues , rules , and warn against overruled or outdated law .
And now , both Lexis Context and Brief Analysis and Westlaw Quick Check and Drafting Assistant suggest authority that aligns with content in a brief draft , identify or predict winning arguments , and insert legal rules and case explanations into a brief draft .
AI-Ready Lawyers – Competency , Confidentiality , and Supervision
The oft-used adage , “ with great [ AI ] power , comes great responsibility ,” is appropriately modified and suitably applied to a lawyer ’ s duty to use AI . The Model Rules of Professional Conduct require lawyers to “ keep abreast of changes in the law and its practice , including the benefits and risks associated with relevant technology .” 6 AI use triggers numerous ethical obligations . Chief among them are competency , confidentiality , and the duty to supervise non-lawyers . A lawyer might avoid running afoul of these ethical requirements by adopting an information literacy approach to integrating the use of AI technology in their practice .
Here are some key considerations :
• Know when a legal writing or research tool uses AI ;
• Access relevant information using the appropriate AI-enhanced tool ;
• Evaluate results provided by AI-enhanced tools to critically access its limitations ( credibility or bias ) and strengths ( efficiency and relevance );
• Use information provided by AI-enhanced tools ;
• Document when AI-enhanced tools are used to replicate or discontinue future use as appropriate ; and
• Recognize privacy and confidentiality issues might result when sharing client data with AI-enhanced tools and take steps to secure or limit shared information . 7
Whether you employ LexisNexis or Westlaw ’ s AI-enhanced tools to help write a brief , research a potential defense , or call on ChatGPT to compose an initial draft of a bar journal article , these key considerations will help you harness the power of AI competently and ethically .
1 . Chris Glorioso , Fake News ? ChatGPT has a Knack for Making Up Phony Anonymous Sources , NBC News – New York , ( Feb . 24 , 2023 , 6:14 a . m .), https :// www . nbcnewyork . com / investigations / fake-news-chatgpt-has-a-knack-for-making-up-phony-anonymoussources / 4120307 /.
2 . Will McDuffie , Vanderbilt University Apologizes After Using ChatGPT to Console Students , ABC News , ( Feb . 21 , 2023 , 4:35 p . m .), https :// www . abcnewsgo . com ./ US / vanderbilt-universityapologizes-after-chatgpt-console-students / story ? id = 97365993 .
3 . Matt O ’ Brien , EXPLAINER : What is ChatGPT and Why are Schools Blocking It ?, Associated
Press , ( Jan . 6 , 2023 ), https :// www . apnews . com / article / what-is-chatgpt-ac4967a4fb41fda31c 4d27f015e32660 .
4 . Alison Arden Besunder , Not Your Parents ’ Robot , N . Y . ST . B . J ., Mar ./ Apr . 2018 , 90 APR . N . Y . ST . B . J . 20 .
5 . Id .; Hon . John G . Browning , Real World Ethics in an Artificial Intelligence World , 49 N . KY . L .
REV . 155 ( 2022 ). 6 . MODEL RULES OF PRO . CONDUCT r . 1.1 cmt . 8 ( AM . BAR ASS ’ N 1983 ). 7 . Erica Friesen , The Artificial Researcher : Information Literacy and AI in the Legal Research Classroom , 26 LEGAL WRITING : J . LEGAL WRITING INST . 241 , 250 ( 2022 ).
Jennifer Cook , Denitsa Mavrova Heinrich , and Jenny Samarzja are faculty members in the Lawyering Skills Program at the University of North Dakota School of Law .
28 THE GAVEL