With gen AI’s potential growing in the e-discovery space, legal experts warn that a balance between understanding AI’s risks and accepting its increasing popularity is crucial.

During Tuesday’s “Balancing Ethics and Efficiency in GenAI and Legal” webinar hosted by Electronic Discovery Reference Model (EDRM), legal and tech experts explored the implications of adopting gen AI while simultaneously protecting clients and their information.
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Gen AI’s Current Impression

Experts noted that despite gen AI becoming mainstream fairly recently in 2022, it’s gained a lot of momentum in the legal world ever since.

“I'm seeing the green light now,” said Reed Smith partner and board of project trustees chair David Cohen. “We're actually starting to use this stuff in our real cases and it does some things very well: It's a great research starter, it's great for summarizing long documents or groups of documents.”

Speakers also noted that they’ve observed legal professionals who might have been hesitant toward the technology at first starting to turn around.

“We've been using AI tools in incident response for a few years … attorneys who have hesitated to use it and were very cautious and didn't really want to go down that road, started to accept the fact that AI is here and it's going to be helpful and it's going to be efficient. So I think the last few months have brought on quite a bit of acceptance and more curiosity,” said Anya Korolyov, the vice president of cyber incident response and custom solutions at HaystackID.
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Proceeding With Caution

Although gen AI can streamline work for legal professionals, issues like hallucinations are still at the forefront of many lawyers’ minds.

“We as attorneys are still responsible for the work product that comes out and we know that one of the issues with AI is its tendency to hallucinate,” said Cohen.

He added that even after Mata v. Avianca in which a counsel’s citations turned out to be fabricated by a ChatGPT bot, similar mistakes using gen AI have been made.

“We've had at least a half dozen more incidents where lawyers relied on fake citations in court filings,” he said. “We're responsible for our filings, we need to check everything.”
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Transparency

Throughout the conversation, experts pointed out that to navigate the risks of gen AI, transparency between lawyers and clients should be prioritized.

“I think a lot of lawyers and legal teams would want their clients to know they're on the cutting edge of technology use … yes, we're not having gen AI try this case for you, but we're using it as a very effective tool to increase the quality of our representation,” said Relativity discovery counsel and legal education director David Horrigan. “The cover-up is usually worse than the crime—candor immediately if you run into an issue is so important, that [Avianca] case would've turned out far differently if there'd been more of that.”

Cohen added that it's important for legal professionals leveraging this technology to document their use in order to explain their process in court. This not only builds trust between counsel and clients but also helps judges understand how lawyers drew their conclusions and prevents opposing counsel from creating holes in arguments.

“Document how you use [AI tools] so that you can defend the use of these tools down the road,” he said. “Somebody can say, oh, this gen AI is just as good or better than predictive coding and human review, but there are ways to prove that, you need to create that proof, you need to take samples of what you've used it for and validate it.”