AI Is Adapting, and Lawyers Should, Too

By Marc E. Gustafson

We’ve all been there – negotiating with opposing counsel over a nuanced situation, only to get a run-of-the-mill response. These types of conversations can be frustrating, if not downright maddening. More importantly, they have the potential to spell a hard road ahead for our profession.

Over the last year, there has been a fair amount of gnashing of teeth by lawyers and law firms over ways Artificial Intelligence (AI) tools like ChatGPT and the like will affect the legal profession. If your head has been anywhere but buried in the sand, you’ve likely seen examples of articles and briefs, with varying degrees of accuracy, composed using some form of AI. And these tools are going to get better.

Put simply, AI allows computer systems to learn from massive amounts of data and to recognize patterns in it to perform tasks more efficiently and (potentially) more effectively. Put another way, if a task is constantly occurring or easily replicated, it is likely to be performed by a computer sometime in the very near future. Many fear, at minimum, that this could lead to the performance of tasks typically performed by humans to be performed by processors like ChatGPT.

But before we stop paying bar dues and start surrendering our law licenses, maybe we should pause for a moment to consider how AI is likely to affect the practice of law. Things like incorporation, written discovery, document review, and contract drafting all seem susceptible to computer generation. Much of legal research (and not just that performed on Google) has employed artificial intelligence for decades already. On the other hand, tasks that require unique approaches, sympathetic responses, and emotional intelligence seem harder to replicate via algorithms. (I understand that this might be an oversimplification, but I refuse to believe humans will not always exceed computers in certain situations.)

Which brings me back to my opening example. If lawyers fail to recognize unique patterns or to employ emotive tools, we run the risk of being replaced, or at least underpriced, by technology. For that reason, among others, we should consider ways lawyers can use AI to augment our practices.

If we are looking for silver linings in the onset of AI, instead of resisting it, there are at least a few ways we could be early adopting AI technology in our legal practices. From the beginning of electronic communication, electronic discovery (e-discovery) has been the bane of associates’ existence. And while much of discovery continues to be reviewed by human eyes, likely in part due to the profitability of such work, electronic tools exist to review, sort, organize, and summarize terabytes of data in nanoseconds.

Likewise, AI can be used to draft contracts and other documents. Coalescing data from millions of publicly available contracts, form libraries, case reporters, and statutes, AI can already review and suggest language for contracts, if not draft them entirely.

To put this to the test, I asked ChatGPT to draft a non-compete provision that would be enforceable under North Carolina law. The result earned what one of my partners and I agree was a solid C+, maybe a B- on a curve. I then asked ChatGPT (with some apprehension) to draft an argument that the non-compete provision I employ for many of my clients was invalid and unenforceable. To my relief, the arguments it returned included a comprehensive list of the usual suspects – duration, territory, scope, vagueness – but missed many of the details that allow the covenant to pass scrutiny. Nonetheless, at least for now, I can see ChatGPT as one place to start when starting off on any legal analysis.

Legal research should also become faster, more accurate, and less expensive, which can and may be expected to increase lawyer productivity. At minimum, utilizing AI to perform these tasks can help to eliminate potential mistakes but also allow lawyers to focus on higher-level tasks like strategic thinking, client management, and bias detection. Of course, the creative process, the part lawyers should revel in exercising, remains critical to the use of AI, including selecting a particular approach, making the appropriate inputs, or identifying the expected outcome.

In the short term, lawyers who do not shy away from the use of AI will have a hand in training it. (Look no further than my examples regarding non-competes.) In the long term, lawyers who learn to best utilize AI in their practice of law will be not just more productive, accurate, and efficient, but able to focus on tasks that are fulfilling, stimulating, or even profitable.

So, we can choose to either be one-trick ponies, responding to every situation in the same way, or we can adapt, take advantage of our uniquely human skills, and employ the best tools, including AI, to serve our clients. In my view, lawyers who do not accept the role that AI will play in our profession are likely to go the way of the Pony Express.

Marc Gustafson is a partner at Bell, Davis & Pitt in Charlotte. His practice focuses on employment and complex commercial litigation. He is also a certified mediator.

*This article was not written with the assistance of AI.