artificial intelligenceAlthough artificial intelligence (AI) has been used in the e-discovery space for more than 10 years, AI is now capable of more complex litigation tasks, such as legal research, drafting pleadings, and predicting judicial decisions, in a fraction of the time it would take a human lawyer to do the same tasks. If AI can help lawyers and law firms more quickly process and analyze large amounts of data, and in turn, make the litigation process less expensive, faster and more efficient, why have litigators been so slow to adopt the newest technologies and capabilities? Understanding and demystifying what AI can and cannot do (i.e., it can help automate the more mundane, repetitive legal tasks and analyze large amounts of data, but it cannot negotiate, advocate, or provide sophisticated legal advice) might help litigators not fear, but rather, embrace AI as a way to access larger pools of data, make more informed strategic choices in their advocacy, and provide better and more efficient legal services to clients.

In simplified terms, AI is essentially highly advanced software that can simulate human thought processes to complete basic, time consuming tasks and produce relevant and accurate results in much less time. Machine learning is a form of AI that employs statistics, pattern matching, and inference to perform a task, as opposed to using explicit procedures. Perhaps that sounds threatening, but using AI tools as an aid to law practice is not just having a moment; it is here to stay and will soon become an indispensable part of practice for all lawyers. Yet lawyers, and litigators in particular, have been slower to embrace and adopt new technology than other professions. According to a survey conducted last year by the American Bar Association, only 10 percent of lawyers used AI-based tech tools for their legal work in 2018 (though those usage rates are higher for respondents working at larger law firms). (The ABA's "2018 Legal Technology Survey Report" included 900 respondents from across the nation and at firms of various sizes.) A 2019 Bloomberg Law survey indicates that only one in four people in law firms and legal departments use AI-based legal technology. (Bloomberg Law Legal Operations & Technology Survey included 500+ in house and law firm practitioners.)

Why Is Adoption Essential?

Litigators should be aware of some of the powerful AI and machine learning tools, which can quickly access and analyze large amounts of data and help us make better informed strategic decisions and improve the quality of our advocacy. The time spent slogging through data and documents and repetitive tasks can instead be allocated to providing sophisticated legal analyses and more effectively shaping the narrative we ultimately provide the judge or jury. This is not only good for clients, but also for job satisfaction and attorney development and training, especially at the junior level. As other factors are driving change in the legal industry, including growing pressure on in-house corporate law departments to increase effectiveness and efficiency, investing the time and effort to understand and adopt AI technology, especially as a litigator, is essential.

However, making sense of the myriad of AI tech products in the market can be overwhelming and confusing, especially to a profession that is naturally risk-averse. Indeed, much of the technology that claims to do more advanced legal work is still emerging. In recognition of these barriers, some of the larger law firms for instance have opted to collaborate with Reynen Court, which, much like an "app store," provides law firms with a single platform to access new legal tech products from a variety of vendors. The hope and idea is to remove the friction involved in exploring, comparing, and using various AI technologies available from many vendors—a small but significant step in the right direction.

How Can AI Be Helpful in Litigation?

Putting aside AI use in e-discovery and document review, which is probably the most prevalently used AI among litigators, there are at least three other major areas in which AI can best help litigators specifically to be more effective and efficient: (1) legal research; (2) data analytics and legal outcome prediction; and (3) automatic pleading and document discovery generation.