Use of Generative AI in Civil Litigation: A Judge's View

By: Ronald J. Hedges, Esq. (FORMER U.S. MAGISTRATE JUDGE (D.N.J.)), RONALD J. HEDGES LLC

This article provides a judge’s insights into the use of generative artificial intelligence (GAI) in civil litigation and covers topics such as potential uses of GAI, ethical concerns, how specific rules apply to GAI, discovery issues, and key takeaways.

Artificial Intelligence (AI) Overview

AI is the term used to describe how computers can perform tasks normally viewed as requiring human intelligence, such as recognizing speech and objects and making decisions based on data.

Machine learning is an application of AI in which computers use algorithms (rules) to learn from data. Machine learning adapts with experience. In other words, the algorithm can change as more data is fed into it.

Attorneys and their clients already use AI and machine learning for various purposes. Here are some uses of AI available to attorneys:

• Contract review. AI can review proposed text, flag potential issues, and suggest changes in text.
• Document drafting. AI can fit data into a template and prepare a document.
• Predictive analytics. AI can analyze data and predict results prior to commencement of a civil action.
• Legal research. AI can search and review large volumes of data and provide insight for arguments.
• Risk management. AI can identify legal risks, such as those related to data privacy and intellectual property.

In other words, AI can assist attorneys in the practice of law.

GAI is a type of AI that uses machine learning algorithms to create new and original content such as images, videos, text, and sound. GAI hit the news in late 2022, when ChatGPT became available from OpenAI, an AI research and deployment company with a stated mission to “ensure that artificial general intelligence benefits all of humanity.”¹ ChatGPT uses data to generate text. Other GAI, such as DALL.E2, another product of OpenAI, can create images and art from a description in natural language.

GAI might be used by attorneys in litigation to, among other things, draft pleadings and engage in discovery. Attorneys should understand that reliance on the output of GAI in a specific instance might be problematic.

Ethical Implications

Before we delve into the uses and potential abuses of GAI, it would be worthwhile to think about the ethical duties of attorneys that might come into play. In August 2019, the House of Delegates of the American Bar Association adopted the following resolution:

[T]he American Bar Association urges courts and lawyers to address the emerging ethical and legal issues related to the usage of artificial intelligence (‘AI’) in the practice of law including: (1) bias, explainability, and transparency of automated decisions made by AI; (2) ethical and beneficial usage of AI; and (3) controls and oversight of AI and the vendors that provide AI.²

At the least, the resolution implicates several Model Rules of Professional Conduct (Model Rules). First, there is the attorney’s duty of competence under Model Rule 1.1. More than 30 states have adopted a comment to the rule providing that “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”³

Second is the duty to maintain client confidentiality under Model Rule 1.6.⁴

These duties go together. An attorney must:

• Understand the technology that they or the client use
• Take reasonable steps to protect information “given” to the technology

Moreover, assuming you are working with a vendor or vendors, you might have supervisory duties under Model Rule 5.35 which, in turn, relates back to understanding the relevant technology.

Substitute GAI for the word technology to drive your ethical duties home.

For additional guidance related to how the Federal Rules apply to AI, Gen AI created court documents, and possible causes of action, please follow this link to read the complete article in Practical Guidance.

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Ronald J. Hedges, Esq. was a U.S. Magistrate Judge for the District of New Jersey from 1986 to 2007. He is currently the principal in Ronald J. Hedges LLC. He is a nationally recognized former federal judge with extensive experience in e-discovery and in the management of complex litigation.

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Related Content

1. Planning for AGI and Beyond, OpenAI (Feb. 24, 2023). 2. Resolution 112 (ABA August 2019). 3. MODEL RULES OF PROF’L CONDUCT, R. 1.1 cmt. 8 (2023). 4. MODEL RULES OF PROF’L CONDUCT, R. 1.6 (2023).