AI in practice: How new technology is affecting litigation practice

Summary

• Sean Carnathan uses AI for document review and brief enhancement
• Nicole Benjamin pilots multiple AI tools while cautioning on remote depositions
• Howard Goldberg emphasizes lawyer duty to understand AI technology
• AI shifts skill priorities for new litigation hires in massachusetts firms

The spread of artificial intelligence through the daily work of litigators, from legal research and document review to drafting and discovery, is among the changes lawyers say they are watching most closely.

What AI helps most with is the time-intensive work: document review, legal research, first-draft pleadings and motions, and managing discovery, said Sean Carnathan, a trial lawyer at O’Connor, Carnathan & Mack.

For now, litigators are treating these tools as a starting point, not relying on them for a finished product. Carnathan feeds briefs from opposing counsel into AI, along with his own draft, and asks it to make his work more persuasive, He’ll also run a deposition transcript through a summary tool like Clio.

“It’s a great check on your work,” he said, “but it’s not a replacement for having a human brain that knows how the law works.”

For example, he said, AI doesn’t always grasp how a decision applies, pulling a quote out of context and handing it back as the rule of the case.

“It will divine which side of the ‘v’ you’re on,” Carnathan said, “and tell you what it thinks you want to hear.”

Nicole Benjamin, a trial and appellate litigator at Adler, Pollock & Sheehan, noted that products like Lexis Protégé, CoCounsel, and Harvey are trained on legal material and designed to keep client data out of public models. Her firm uses one of these tools and is piloting five more.

Benjamin is a proponent of the new technology but is resistant to using it in some aspects of practice, such as remote depositions.

A litigator has to size up a witness in person to read their demeanor, she said.

And, Benjamin added, the technology comes with new risks. She recently caught evidence that had been fabricated by AI. She spotted it, she said, because she knew the technology well enough to ask the right questions. But a lawyer without that background might have let it pass as authentic.

Authenticating your own exhibits and challenging your opponent’s has always been part of litigation work, Benjamin noted, but now lawyers also have to weigh whether a document, a photo, or a video was generated rather than taken.

Client expectations and other concerns

The growth of AI has shifted client expectations, and that could change the way work is billed.

Clients will not pay for 20 hours of document review when software can do it in seconds, said Carnathan. He has one client who kept sending back AI versions of his work, asking why he paid an associate for what a machine did in two minutes. Carnathan ultimately offered a flat fee rather than arguing over the bills.

He’s not convinced the billable hour is finished, noting that its death has been predicted for decades. But now, he said, “we might finally have a technology that’s going to corner lawyers into changing.”

Pricing for new AI tools is still unsettled, said Howard Goldberg, a trial lawyer at MG+M and chair of the firm’s e-discovery committee. Costs can range from a modest expense for a general-purpose AI assistant to $1,200 a seat for sophisticated enterprise systems.

A larger concern, said Goldberg, is how AI affects lawyers’ professional responsibilities.

The duty of competence has always required lawyers to keep up with developments in their field, he said, and that now includes AI.

“AI is exciting and holds enormous promise for the profession,” said Goldberg. “However, attorneys who use AI are required to understand the technology, educate themselves about it, and ensure that its output is accurate.”

Adapting to AI is no different from adapting to e-discovery a generation ago, he added. It isn’t optional.

“Your duties to your client and the court have not changed,” Goldberg said. “If you use AI, you must educate yourself on how the software works and where it may fall short.”

Effect on new litigators

The increased use of AI has also led to a shift in the skills firms prize most in their newest lawyers.

“It’s not replacing anybody, but it’s very much changing the skill sets that we rely upon,” said Benjamin.

Carnathan agreed. The work is changing, he said, and lawyers will either ride the wave or get “crushed on the beach.”

With AI, Benjamin said, anyone can produce clean prose. “You can become, with the benefit of AI, a very good writer,” she noted. But that changes what a firm looks for in its new litigation hires.

For example, Benjamin says she looks for interpersonal skills, such as the ability to manage client expectations, know when to push a settlement, and deliver news clients don’t want to hear. She also focuses on analytical skills like making sense of the volume of discovery and spotting the weakness in an opponent’s argument.

These used to be skills that new lawyers could develop over time. “Now it’s really critical that you have that coming in,” Benjamin said.