Artificial Intelligence (AI) is rapidly transforming various industries, and the legal sector is no exception. As AI tools become more sophisticated and integrated into daily practice, they bring both immense opportunities and complex challenges, particularly within the realm of litigation. This article explores two critical facets of AI’s influence on litigation: disputes arising from AI malfunctions, errors or biased outputs; and the evolving use of generative AI by legal professionals.
I. Disputes Over AI Malfunctions, Errors or Biased Outputs
As businesses increasingly rely on AI systems for critical functions — from loan approvals and employment screening to medical diagnostics and autonomous vehicles — the potential for AI failures to cause harm and lead to litigation grows exponentially.
Practical Implications:
- Expanded Theories of Liability: We anticipate a rise in litigation centered on product liability, negligence and breach of warranty claims specifically tailored to AI systems. Determining who is liable when an AI system malfunctions (the developer, the deployer, the data provider or a combination thereof) will be a complex legal question.
- Challenges in Proving Causation and Damages: Unlike traditional disputes, proving that an AI system’s error or bias directly caused specific damages can be incredibly difficult.
- Increased Need for Expert Witnesses: Litigation involving AI will undoubtedly require highly specialized expert witnesses who can explain the technical intricacies of AI systems, identify flaws and assess the impact of biased algorithms.
Forward-Looking Analysis:
The legal framework around AI liability is still emerging. We expect to see legislative and judicial developments aimed at clarifying liability standards, defining “reasonable care” in AI development and deployment, and establishing mechanisms for auditing and mitigating algorithmic bias.
II. Use of Generative AI by Lawyers
Generative AI tools, such as large language models, offer unprecedented capabilities for legal research, drafting and analysis. However, their use also introduces significant ethical considerations and practical challenges for all participants in the legal process.
Practical Implications:
- Increased Efficiency vs. Risk of “Hallucinations”: Lawyers are already leveraging generative AI to summarize legal principles, draft documents and brainstorm arguments. While this can enhance efficiency, a critical concern is the phenomenon of “hallucinations,” where AI generates convincing but entirely fabricated information, including non-existent case law or statutes. The Colorado Court of Appeals has already warned lawyers and self-represented litigants about the risks of submitting briefs containing AI-generated “fake cases,” indicating future infractions may result in sanctions.
- Ethical Duties of Competence and Candor: The Colorado Rules of Professional Conduct impose duties of competence (Rule 1.1) and candor to the tribunal (Rule 3.3). Lawyers using generative AI have an ethical obligation to understand the technology’s limitations, thoroughly verify all AI-generated content for accuracy, and not present “hallucinated” information as fact. Failure to do so can lead to professional discipline and adverse rulings.
- Confidentiality Concerns: Inputting client confidential information into publicly available generative AI tools without proper safeguards poses a significant risk of breaching attorney-client privilege and confidentiality (Rule 1.6).
- Evolving Disclosure Requirements: While no explicit statewide rule currently mandates disclosure of AI use in legal filings in Colorado, the trend is towards greater transparency.
Forward-Looking Analysis:
The legal profession in Colorado, like many other jurisdictions, is actively grappling with how to integrate AI responsibly. The Colorado Supreme Court has established a committee to consider recommendations for amendments to the Colorado Rules of Professional Conduct and the Colorado Code of Judicial Conduct to address AI use. We anticipate the development of clearer guidelines and potentially formal rules regarding:
- Mandatory Disclosure: Specific rules requiring lawyers to disclose the use of generative AI in court filings, outlining the extent and nature of such use.
- Verification Protocols: Clear expectations for lawyers to verify AI-generated content, potentially requiring specific attestations.
- Data Security Standards: Stricter guidelines for law firms regarding the security and confidentiality of client data when utilizing AI tools.
As AI continues to evolve at a rapid pace, Principle Law remains dedicated to staying at the forefront of these legal and technological developments. For any questions regarding AI and its impact on your business or legal matters, please do not hesitate to contact our experienced team.