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Artificial Intelligence: Judge Slams Attorney for Not Using AI in Court

March 21, 2023 (4 min read)
judge hits gavel

Updated November 20, 2023


At LexisNexis, we have not been subtle about our views regarding the impact artificial intelligence (AI) is having — and will continue to have — on the practice of law. We’ve discussed a myriad of AI-related topics, including:

While we believe we are an authoritative source for all things legal, we understand that attorneys give considerable weight to the opinions of judges. So, when we heard that Justice A.C.R. Whitten of the Ontario Superior Court of Justice mentioned artificial intelligence in a decision, we were intrigued.

The decision concerned a request for attorneys’ fees and expenses by defendant, Port Dalhousie Vitalization Corporation (PDVC). The court granted summary judgment in PDVC’s favor against a woman who sued PDVC after she slipped and fell at an Ontario bar for which PDVC was the landlord. The bar, My Cottage BBQ and Brew, defaulted in the case. In his ruling, Justice Whitten mentioned that the use of AI in legal research would have reduced the amount of time one of the attorneys for the defendant would have spent preparing his client’s case.

So, how should attorneys respond to this statement?

We'll help you answer that question by:

  • Providing an overview of the case (which occurred in 2018)
  • Discussing how the presence of AI in the legal industry has increased since then 
  • Offering solutions for incorporating AI into your practice 

Excessive Attorneys’ Fees: Recap of the Case

Justice Whitten was not impressed by PDVC’s request for fees. He began his analysis by asking why two attorneys represented PDVC in a lawsuit that was “not so complex that there would be any need for a division of labour.” He challenged the need for the attorneys to spend 26.5 hours defending a pro forma motion to amend a pleading. He further questioned why an attorney requested a fee for two court hearings that were handled by a law student. And, he thought the 80 hours spent preparing a summary judgment motion was excessive, noting that 20 to 30 hours would have been more acceptable.

Justice Whitten was similarly unimpressed by the defendant’s request for about $24,000 in expenses. He trimmed a reimbursement request for a medical opinion by 50 percent (from $10,000 to $5,000).

A Call for AI in Legal Research

Next, Justice Whitten turned to the defendant’s request for $900 in research-related expenses. And that’s where we encounter the topic of AI. The judge questioned the need for the legal research given the nature of the case and what was being researched. He ultimately denied the $900 request. But not before he said the following:

“If artificial intelligence sources were employed, no doubt counsel’s preparation time would have been significantly reduced.”

He then moved on to address (and ultimately reject) the defendant’s request for reimbursement of $5,500 in costs awarded against the defendant earlier in the litigation for questionable litigation behavior.

What is most striking — and most promising — about Justice Whitten’s reference to AI is how matter-of-fact it was.

Justice Whitten’s nonchalant reference to using AI in legal research, and his choice to not go into further detail about AI, is exactly how a lawyer would expect a judge to speak about a well-established legal tool for which no further explanation is necessary.

What's Next for AI

When we first discussed Justice Whitten's 2018 remarks, artificial intelligence was just beginning to take the industry by storm. While his words could be taken as a passing statement, experts felt they indicated an overall awareness from judges regarding emerging technologies. After all, AI-enhanced research platforms like Lexis+ were on the horizon, and ABM would pay a specific focus to AI in their annual Legal Technology Report the following year (reporting that only 8% of attorneys were using AI at the time!). 

AI didn't stop there, however. The past several years have witnessed a rapid increase in the availability and capabilities of AI. Most notably, generative AI (such as ChatGPT) has taken the world the by storm — and some experts feel attorneys have a professional responsibility to become familiar with the technology. At the same time, experts recognize there are ethical considerations to bear in mind when using something like a GPT-powered chatbot; furthermore, the "bots" flooding the market can't replace lawyers (at least, not in the foreseeable future). 

So what does all of this mean?

At the very least, attorneys should become familiar with AI-enhanced research technology, answering Justice Whitten's call for increased efficiency (and client satisfaction). Additionally, all legal professionals should seek out opportunities to learn about what's next for legal research and the industry as a whole. 

  • Click below to get access to the first report on the legal industry and generative AI 

Access the Report

Prepare for the Courtroom with AI-Enhanced Technology 

Artificial intelligence can be an invaluable tool when you learn to use it to the best of its capabilities. With a range of reliable AI offerings, LexisNexis is here to help you advance your firm's legal research to the next level. Learn more about Lexis+ AI