The Legal
Lawyers and judges should familiarize themselves with generative AI tools and consider the risks and benefits.
BY MEGAN E. BOYD
What Is AI?
AI, short for artificial intelligence, is "technology that enables computers and machines to simulate human intelligence and problem-solving capabilities."[1] That extremely broad definition includes everything from GPS to smart cars to Google Pay to facial recognition software. People have been using AI for more than 70 years—Alan Turing's bombe machine, which helped crack the German enigma machine codes, is one of the earliest examples.[2]
AI is also everywhere in the legal world and has been for decades. Microsoft's Editor, which checks for spelling and grammar errors, is one example of AI that lawyers use (or should use) daily. Many lawyers swear by Brief Catch, software that functions like Microsoft's Editor but is designed specifically for lawyers and can identify errors that arise exclusively in a legal context. Westlaw and Lexis use AI to make legal sources available at lawyers' fingertips.
What is new in legal AI—and what many lawyers and judges express extreme discomfort about— is generative AI (GenAI), the most well-known of which is ChatGPT.[3] Other popular GenAI programs include Claude, Bard and Microsoft Copilot. LexisNexis has developed Lexis+ AI Assistant, a GenAI program designed specifically for lawyers and legal professionals, and Westlaw offers AI-Assisted Research, GenAI aimed at speeding up the research process.
What Is GenAI and How Does It Work?
GenAI "refers to deep-learning models that can generate high-quality text, images and other content based on the data they were trained on."[4] GenAI does just what you would think: it generates content based on a user-provided prompt. When that content is text, the text is created by a large language model (LLM). LLMs have learned to produce human-like writing from gathering data. This data comes from colleges and universities, the federal government, publishers, data repositories and even social media user-generated content (like Facebook or Twitter/X posts). LLMs have learned how to write by, among other things, "scraping" internet websites, which involves using programs to extract massive amounts of information from websites and process it.[5]The GIGO principle (garbage in, garbage out) is extremely important in understanding how LLMs work—they are only as good as the data sets they rely on.
How Can Lawyers Use GenAI?
GenAI has many uses, but in its most basic form, it can answer questions or write things for the user. For example, when asked, "When is Presidents' Day?" Chat-GPT 3.5 responded:
"Presidents' Day in the United States is typically celebrated on the third Monday of February. This holiday honors the birthdays of George Washington, the first president of the United States, and Abraham Lincoln, the 16th president. It's often seen as a day to celebrate all U.S. presidents."
That is obviously correct, but what I really wanted to know is when is Presidents' Day in 2025. So I modified my prompt to tell ChatGPT more clearly what I was asking. When prompted with the question, "When is Presidents' Day 2025?" ChatGPT 3.5 responded: "In 2025, Presidents' Day in the United States falls on Feb. 17." It answered my precise question and intuited that I wasn't asking for more general content.
GenAI can be a nightmare in academic settings—it can literally write a paper for the user. Lawyers are not students, though, and GenAI can be an extremely beneficial tool when used properly. For example, to learn something about slip-and-fall law in Georgia, I prompted ChatGPT 3.5 with the question: "What are the elements of a slip and fall in Georgia?" It responded:
In Georgia, a slip and fall case typically involves premises liability law. To establish liability in a slip and fall case in Georgia, several elements need to be proven:
1. Duty of Care: The property owner or occupier owed a duty of care to the injured person. This means they had a responsibility to keep their property reasonably safe for visitors.
2. Breach of Duty: The property owner or occupier breached that duty of care by failing to maintain safe conditions on the property. This breach could include hazards like wet floors, uneven surfaces, inadequate lighting or obstacles in walkways.
3. Causation: The dangerous condition on the property directly caused the slip and fall accident. This means there must be a clear link between the hazardous condition and the injury suffered by the plaintiff.
4. Notice: The property owner or occupier either knew about the hazardous condition and failed to address it or should have known about it through reasonable inspection. Constructive notice may also apply, meaning the condition existed for a sufficient length of time that the property owner or occupier should have discovered and remedied it.
5. Injury: The slip and fall resulted in measurable harm or injury to the plaintiff. This can include physical injuries, medical expenses, lost wages, pain and suffering, and other damages.
In Georgia, comparative negligence may also be a factor. If the plaintiff is found to be partially at fault for the slip and fall accident, their compensation maybe reduced based on the percentage of fault assigned to them.
It's important to note that premises liability laws can vary by state, and the specific circumstances of each case will determine the outcome. Consulting with a qualified attorney who specializes in personal injury law in Georgia would be advisable if you're involved in such a case.
This summary is generally correct, but I notice a few issues with it. The summary is not supported by any authority (which is, I suppose, better than being supported by non-existent authority). While Chat-GPT 3.5 did provide a general overview of Georgia slip-and-fall law, it did not produce a cut-and-paste-worthy summary that could be included in a memo or brief. And, importantly, while Chat-GPT 3.5 did recognize the comparative negligence issue, it failed to note that Georgia is a modified comparative negligence state, meaning that the plaintiff may not recover any damages if the plaintiff is deemed to be 50% or more at fault.[6]1 am no slip-and-fall expert, but the modified comparative negligence issue seems like an important caveat.
LexisNexis's AI Assistant promises to provide "links to hallucination-free legal citations covering common legal tasks including asking a legal question, document drafting and summariz[ing] a case."[7]"A hallucination refers to an output that is either incorrect or entirely fabricated."[8]AI Assistant has the potential to provide content that could be copied and pasted into a brief or memo, so I asked it the same question that I asked Chat-GPT 3.5: "What are the elements of a slip and fall in Georgia?" AI Assistant responded:
In Georgia, a slip and fall case is a type of negligence claim that requires the plaintiff to establish four...
