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Must Lawyers Use AI in 2019? According to One Judge, the Answer is “Yes”

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Must Lawyers Use AI in 2019? According to One Judge, the Answer is “Yes”

Many of the lawyers I encounter are intimidated by technology. Rapid technological advancements have left them bewildered, and thus unwilling to even attempt to catch up. For those lawyers, turning a blind eye to technology and practicing law as if it were still 1995 seems like a viable option. After all, it’s worked so far, so who can blame them?

Of course, despite their chosen course of action - intentional ignorance - the steady beat of technology marches on. First it was the internet and email, then came social media and cloud computing, and now even newer technology trends are emerging, the most notable of which is artificial intelligence. And, like it or not, each of these is impacting the practice of law and the legal industry as a whole on a daily basis.

That’s why 35 states have now adopted the ethical requirement of technology competence, including New York. And, 2 states - Florida and North Carolina - now require that lawyers obtain legal technology credits as part of their CLE requirements. No doubt more jurisdictions will follow in their wake, since the effects of technology on the practice of law are inescapable and unavoidable.

If you remain unconvinced, then consider the judge’s opinion in Cass v. 1410088 Ontario Inc., 2018 ONSC 6959. At issue in this Ontario Superior Court personal injury case that was handed down in November was, in part, whether the fees billed by the defendant’s counsel were excessive.

One of the fees in dispute was a $900 fee for “legal research.” The judge did not look very kindly upon this fee, explaining that “$900.00 for legal research is problematic.”

The judge did not mince words when he opined on this issue, concluding that legal research is a basic skill and the topic allegedly researched was one with which the attorney for the defendant should have already had familiarity: 

“One assumes that counsel graduated with the basic legal knowledge we all possess.  This matter was unlikely his first blush with the world of ‘occupier’s liability’, and specifically the liability of landlords.  Counsel no doubt was familiar with the focus on the degree or control and access exercised by the landlord on the subject area.  So given all the base experience and knowledge, the need for ‘research’ by some anonymous identity is questionable.”

Next, the judge turned to the length of time that was purportedly required to conduct the research at issue, and importantly, this is where technology competence comes in. The judge notably asserted that had the attorney used an unnamed artificial intelligence research tool, far less time would have been needed to research the issue at hand (emphasis added):
"All in all, whatever this ‘research’ was would be well within the preparation for the motion.  There was no need for outsider or third party research.  If artificial intelligence sources were employed, no doubt counsel’s preparation time would have been significantly reduced.”

Although the judge failed to note which AI legal research tool he had in mind, one example of an AI-powered legal research product that might fit the bill is Casetext’s CARA which is an AI-enabled brief analyzer. CARA allows you to upload a brief or memorandum into CARA A.I., and it will then analyze the content of the document and provide you with relevant authorities.

Mark my words: When judges start reducing fees due to counsel’s failure to use AI-powered legal research, it’s yet another sign that the tide is turning. Technology is here, it’s impacting the practice of law, and, in the words of the all-knowing Borg (a race of aliens from Star Trek for those of you who aren’t Trekkies), resistance is futile.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.