Sui Generis--a New York law blog

Courts Are Facing an AI Tidal Wave

Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

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Courts Are Facing an AI Tidal Wave

If you haven’t noticed that artificial intelligence (AI) is already impacting the practice of law, then you’re not paying attention. Case in point: Judges are increasingly facing decisions about the admission of AI-created evidence at trial, and this is just the beginning. Courts will face a tsunami of AI-generated evidence, and I’m not sure we’re prepared for what’s coming.

That this is occurring isn’t surprising. The justice system has grappled with digital evidence for decades now. The first big change occurred in 2006 when the Federal Rules of Civil Procedure were amended to explicitly address electronic discovery. Another major trend was social media, which had a significant impact on trials as lawyers and judges struggled to keep up with the rapid influx of evidence mined from new and emerging social media sites.   

AI is the next wave of technology that will leave its mark on trials. The difference is that it’s occurring at a much faster rate, and it has the potential to have far more dramatic impact on the administration of justice than any of the technologies that preceded it.

It’s already cropping up in courts across the country in many different contexts, and this is just the beginning. 

Most recently, earlier this month, at an Arizona sentencing, the deceased victim of a road rage incident provided a victim impact statement from the victim in the form of an AI-generated video. The dialogue was written by his sister. The judge permitted the statement and considered it when sentencing he defendant to the maximum, which exceeded the recommendation of the prosecution.

In April, at an argument in front of the New York State Supreme Court Appellate Division’s First Judicial Department, a pro se litigant whose voice had been impacted by throat cancer attempted to argue his appeal via a video of an AI-generated lawyer. The Court quickly put a stop to it and ordered the defendant to proceed on his own.

In another case, State of Washington v. Puloka, the defense sought to introduce AI-enhanced videos of a bystander’s iPhone video taken of the alleged criminal incident in question. The judge declined to admit the videos into evidence, deeming them unduly prejudicial.

In a California case where the plaintiff was killed while riding in his Tesla set to auto-drive, his family sought to introduce a video of Elon Musk discussing the safety of that feature. The defense objected, claiming that the video could have been a deepfake. The court rejected that challenge.

In January, a Florida judge donned a VR headset in a criminal case in the 17th Judicial Circuit. The headset was provided by the defense in a stand-your-ground case and allowed the judge to “view” the wedding reception where the alleged assault occurred from the “perspective” of the defendant. 

Finally, another notable intersection of judges and AI occurred just last week. It was reported that a newly elected Broward County Judge, Lauren Peffer, faces a judicial ethics complaint alleging that she promoted an AI-generated audio recording during her campaign that falsely depicted her opponent making sexually explicit and inappropriate remarks.

In other words, AI isn’t coming—it’s already here, and it’s changing how evidence is created, presented, and evaluated in courtrooms across the country. From deepfakes to virtual reality to synthetic speech, these tools are influencing decisions in ways we’ve never seen before. 

Ready or not, the volume and complexity of AI-generated evidence will only grow. To maintain the integrity of our justice system, we need to start thinking now about how to address it, both practically and ethically. Otherwise, we risk letting untested, unreliable, or manipulative AI-generated outputs undermine the very system we rely on to deliver fair and just outcomes. 

Nicole Black is a Rochester, New York attorney, author, journalist, and Principal Legal Insight Strategist at MyCase, CASEpeer, Docketwise, and LawPay, practice management and payment processing tools for lawyers (AffiniPay companies). She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].

 

 

Define That Term #323

Last week's term was reading on, which is defined as:

In patent law, describing literally. A patent is infringed if the patent's claims read on all elements of the infringing device.

No one guessed this time around.

This week's term is:

rule of doubt.

As always, no dictionaries, please.

Define That Term #321

The most recent term was dynamite charge, which is defined as:

An judge’s admonition to a deadlocked jury to go back to the jury room and try harder to reach a verdict. The judge might remind the jurors to respectfully consider the opinions of others and will often assure them that if the case has to be tried again, another jury won’t necessarily do a better job than they’re doing. Because of its coercive nature, some states prohibit the use of a dynamite charge as a violation of their state constitution, but the practice passed Federal constitutional muster in the case of Allen v. Gainer. The instruction is also known as a dynamite instruction, shotgun instruction, Allen charge or third degree instruction.

NY Law Guy got it right and Vickie Pynchon's guess was pretty close as well.

Today's term is:

reading on.

As always, educated guesses are welcome-dictionaries are not.

Define That Term #320

Last week's term was utility patent, which is defined as:

A patent issued for inventions that perform useful functions. Most inventions fall into this category. A utility patent lasts for 20 years from the patent application's filing date.

No one guessed this time around.

This week's term is:

dynamite charge.

As always, no dictionaries, please.

Define That Term #319

Last week's term was offensive collateral estoppel, which is defined as:

A doctrine that prevents a defendant from re-litigating an issue after it has been lost. For example, if your neighbor sues you for putting up a fence on his land and the court rules that your fence extends beyond your property line, you can't later file your own lawsuit seeking a declaration that the property line is incorrectly drawn.

No one guessed this time around. 

This week's term is:

utility patent.

As always, no dictionaries, please.

Define That Term #318

Last week's term was estoppel by silence, which is defined as:

A type of estoppel that prevents a person from asserting something when she had both the duty and the opportunity to speak up earlier, and her silence put another person at a disadvantage. For example, Edwards' Roofing Company has the wrong address and begins ripping the roof from Betty's house by mistake. If Betty sees this but remains silent, she cannot wait until the new roof is installed and then refuse to pay, asserting that the work was done without her agreement.

No one guessed this time around.

This week's term is:

offensive collateral estoppel.

As always, no dictionaries.

Define That Term #317

Last week's term was promissory estoppel, which is defined as:

promissory estoppel
A type of estoppel that prevents a person who made a promise from reneging when someone else has reasonably relied on the promise and will suffer a loss if the promise is broken. For example, Forrest tells Antonio to go ahead and buy a boat without a motor, because he will sell Antonio an old boat motor at a very reasonable price. If Antonio relies on Forrest's promise and buys the motorless boat, Forrest cannot then deny his promise to sell Antonio the motor at the agreed-upon price.

(2) A legal doctrine that prevents the relitigation of facts or issues that were previously resolved in court. For example, Alvin loses control of his car and accidentally sideswipes several parked cars. When the first car owner sues Alvin for damages, the court determines that Alvin was legally drunk at the time of the accident. Alvin will not be able to deny this fact in subsequent lawsuits against him. This type of estoppel is most commonly called collateral estoppel.

Edward Wiest got it right!

This week's term is:

estoppel by silence.

As always, no dictionaries, please.

Define That Term #316

Last week's term was estoppel in pais, which is defined as:

equitable estoppel: A type of estoppel that bars a person from adopting a position in court that contradicts his or her past statements or actions when that contradictory stance would be unfair to another person who relied on the original position. For example, if a landlord agrees to allow a tenant to pay the rent ten days late for six months, it would be unfair to allow the landlord to bring a court action in the fourth month to evict the tenant for being a week late with the rent. The landlord would be estopped from asserting his right to evict the tenant for late payment of rent. Also known as estoppel in pais.

No one guessed this time around.

Today's term is:

promissory estoppel.

As always, educated guesses are welcome, but dictionaries are not.

Define That Term #315

Last week's term was specification, which is defined as:

In patent law, the narrative portion of a patent application, which includes descriptions of the purpose, structure and operation of the invention, as well as a discussion of any relevant prior art. Essentially, the specification must provide enough information about the invention so that a person proficient in the area of expertise involved in the invention could build and operate it without having to be overly creative.

No one guessed this time around.

Today's term is:

estoppel in pais.

As always, no dictionaries.

Define That Term #314

The most recent term was jus cogens, which is defined as:

Principles of international law so fundamental that no nation may ignore them or attempt to contract out of them through treaties. For example, genocide and participating in a slave trade are thought to be jus cogens.

NY Law Guy got it right!

Today's term is:

specification.

As always, no dictionaries please.