AI’s Radical Impact on the Legal Standard of Care: How AI is reshaping the practice of law

"The technological tides are turning, and with them, the practice of law is set to be revolutionized. Artificial intelligence, with its unparalleled speed, unerring accuracy, and unflappable consistency, will redefine the contours of legal service delivery. Given these seismic shifts, the legal profession's standard of care is on the cusp of a significant evolution." -Mitch Jackson

The Legal Standard of Care is Changing

Envision a new era where artificial intelligence revolutionizes the legal profession, promising unprecedented speed, accuracy, and consistency. AI's capability to automate tasks, process vast data, and deliver consistent outcomes hints at a future where these tools aren't just advantageous—they're necessary.?

As legal issues tied to AI and technology multiply, I believe the standard of care for lawyers will soon mandate AI proficiency. The legal fraternity must therefore understand and embrace this digital transformation to continue providing competent legal counsel in our increasingly tech-dominated world.

Meet Larry the Lawyer

Without AI

Once upon a time, there was a seasoned lawyer named Larry. Larry was gearing up for a high-stakes trial, one that had the potential to make or break his career. Trusting his traditional methods, Larry spent countless nights poring over legal texts and case files, trying to build an impenetrable case he can present at trial including a memorable opening statement and closing argument.

The courtroom was filled with palpable tension as Larry presented his carefully crafted statements. However, despite his meticulous preparation, he found himself faced with unexpected legal precedents and counterarguments that he had not come across in his research.

His failure to identify crucial case precedents weakened his arguments, and despite his fervent efforts, Larry lost the case. The aftermath of the trial left Larry questioning his methods and contemplating the evolution of the standard of care in legal practice. It also left his clients asking him, "Did you use AI to help get our case ready for trial?. If not, why not?"

With AI

In an alternate universe, Larry chose to embrace the dawn of AI technology in his legal practice. He was preparing for the same high-stakes trial, but this time, he chose to leverage the power of AI.

Using an AI-powered legal research tool, Larry was able to sift through vast volumes of case law at lightning speed. The AI system identified crucial precedents and subtle connections between cases that would have been nearly impossible to find manually.

AI also helped Larry craft his opening and closing statements. The AI system analyzed successful past statements, suggested persuasive language based upon his jury pool, and even predicted potential counterarguments based on the opposition's historical strategies.

Armed with this AI-enhanced preparation, Larry presented his case in court with newfound confidence. His opening and closing statements were compelling, comprehensive, and impervious to counterarguments. Thanks to his decision to leverage AI, Larry won the case, thus illustrating the power and potential of AI in meeting the new standard of care in the legal field.

The Standard of Care

Dive into the universe of legal practice, and you'll find an unspoken rule – a hidden commandment that lawyers across the globe adhere to with unflinching commitment. It's a concept known as the "standard of care."

The standard of care for a lawyer is a secret recipe. Picture it as the DNA of the legal profession - every bit as unique, intricate, and vital. It shapes the very essence of how lawyers and law firms provide legal services, shaping a pathway that balances professionalism, ethics, and client satisfaction.

The ABA standard of care canon for lawyers is a set of ethical principles and rules that guide lawyers in their professional conduct. For example, ABA Rule 1.1 is titled Competence and states, “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

The ABA standard of care canon for lawyers is important because it helps lawyers to uphold their duties and responsibilities to their clients, the courts, the public, and the legal profession. The canon also helps lawyers to avoid or resolve conflicts of interest, maintain confidentiality, communicate effectively, charge reasonable fees, provide competent and diligent representation, and avoid misconduct.

In California, our Standard of Care jury instruction reads:

Most states have similar rules and cannons.

This is a good place to point out the article I read about a recent highly publicized New York case where a judge slapped lawyers each with a $5,000 fine for filing a brief authored by the artificial intelligence tool ChatGPT. The brief contained references to imaginary court rulings. This experience didn’t turn out well for the lawyers or their clients.

Now what the article didn’t mention is that every single day lawyers unintentionally file legal briefs citing bad law or out of date or overruled cases. It’s not OK but it happens all the time.

Lawyers aren't perfect. They make mistakes.

The difference between the AI example and what is already happening in the legal system is that AI trains itself to get better and better. It learns, it develops and it becomes more accurate with its responses.

I’m not totally convinced that the lawyer citing bad law in his brief is going to take time out of her day to do the same thing. The bad cites made by a human lawyer are more of a reflection of a lawyer being lazy than anything else. With AI, it’s all about the training and development of the underlying dataset.

Maybe I'm wrong, but I don't think that I am based upon what I've observed while practicing law over the last 37 years.

But let’s continue our conversation about the standard of care in the real world.

At its core, the standard of care sets the minimum level of competence that a lawyer must demonstrate when delivering legal services. It's the baseline, the foundation – a lawyer's ABCs if you will. Anything less is seen as a violation of professional conduct, a line that no lawyer dares to cross.

Now, this doesn't mean that all lawyers should be clones, possessing identical levels of knowledge and expertise. Rather, the standard of care sets the basic level of knowledge, skill, and judgment that one reasonably expects from a lawyer under similar circumstances. It's a fluid construct, ebbing and flowing with each case's complexities, intricacies, and nuanced variables.

In the digital age, the standard of care has evolved. It now includes a reasonable understanding of the technologies that influence legal practice. This doesn't mean every lawyer needs to be a tech wizard. But they do need a working understanding of relevant technologies to protect their client’s interests, whether that's eDiscovery platforms, blockchain contracts, or the due diligence use of AI tools.

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Hello Artificial Intelligence

We’re living in the dawn of a new era in legal practice. The gavel strikes, echoing not just in a courtroom, but also across the vast expanses of digital space. This is the age of AI, and it’s reshaping the landscape of the legal profession, including the hallowed ground of the standard of care.

In the ever-evolving tableau of legal services, AI acts as both a protagonist and an antagonist. On one hand, it is a potent tool, a digital assistant that lawyers can harness to boost efficiency, enhance accuracy, and provide value-packed service to clients. On the other hand, it's a minefield, a landscape strewn with ethical, professional, and standard of care concerns that legal practitioners must deftly navigate.

To understand how AI influences the standard of care in legal services, consider its applications. AI can automate routine tasks, conduct lightning-fast legal research, and even predict legal outcomes based on historical data. These capabilities can significantly enhance a lawyer's performance, elevating the standard of care by allowing them to deliver faster, more accurate, and cost-effective services.

However, these benefits come with strings attached. Just like a ship's captain must understand the mechanics of his vessel, a lawyer using AI tools must have a fundamental understanding of the technology to meet the standard of care. This doesn’t mean they should be coding AI algorithms in their spare time. However, a working knowledge of AI’s strengths and weaknesses, how it works, and its potential biases and errors is vital.

So, how do lawyers navigate this digital terrain without breaching the standard of care? A compass comes in handy - a compass called 'competence'. A lawyer must be competent not only in law, but also in understanding the risks and rewards of AI.

In essence, the introduction of AI into legal practice has infused new hues into the portrait of the standard of care. It presents both exciting opportunities and formidable challenges. Lawyers must understand and embrace these changes to uphold the standard of care in the AI-augmented legal landscape. A blend of tech-savviness, continual learning, and unwavering commitment to ethics can act as their guide in this exciting new era.

AI Will Make Lawyers Better

In addition to making lawyers better, AI will also allow the legal profession to provide a faster, more efficient and consistent client experience. I believe this to be the case for several reasons.

Let's start with speed. Today's legal practice is a high-paced environment, where time is often the most valuable resource. AI can streamline many legal processes, taking over mundane tasks such as document review, due diligence, and contract analysis. By automating these tasks, AI allows lawyers to focus their time and energy on more strategic, high-level work, increasing overall efficiency and reducing the time it takes to resolve legal issues.

Now, onto accuracy. While human brilliance is at the heart of the law, we must acknowledge our innate fallibility. We are prone to error and oversight, especially when overwhelmed with information. This is where AI shines. With its ability to process and analyze massive amounts of data with pinpoint precision, AI can uncover insights and detect patterns that would otherwise go unnoticed, minimizing errors and enhancing the accuracy of legal work.

Consistency, the third ace in the AI deck, is equally pivotal. AI algorithms, once trained, can deliver consistent results across multiple cases, providing a uniform standard of decision-making. This leads to more predictability in legal outcomes and greater fairness in the application of law, fortifying the legal system's integrity.

Now, let's delve into the future, a future where the standard of care for lawyers could well include a competency in AI. As AI permeates every corner of our lives, legal issues linked to AI and technology are skyrocketing. From data privacy concerns to AI bias and accountability, the legal challenges are complex and ever-evolving.

Moreover, as clients become more tech-savvy, their expectations from their lawyers are evolving. They are increasingly expecting their lawyers to leverage technology, including AI, to deliver faster, more accurate, and cost-effective legal services. In such a climate, lawyers may need to incorporate AI into their practice to meet the changing standard of care.

Conclusion

To sum up, the technological tides are turning, and with them, the practice of law is being revolutionized right before our eyes. Artificial intelligence, with its unparalleled speed, unerring accuracy, and unflappable consistency, will redefine the contours of legal service delivery. Given these seismic shifts, the legal profession's standard of care is on the cusp of a significant evolution.

It's not just about embracing the future anymore; it's about crafting it. Soon, the proficiency in and use of AI will not be an optional add-on but an integral part of the standard of care for lawyers. As legal issues grow more entwined with technology and clients demand smarter, faster, and more cost-effective services, lawyers will be required to integrate AI into their practices.

The future of legal practice is clear to me: the use of AI will transition from a cutting-edge advantage to a fundamental expectation, the new standard of care. This future heralds a landscape where artificial intelligence becomes an indispensable ally in the practice of law, and lawyers who can adeptly wield this tool will define the gold standard of legal services. So, ready or not, the AI-enhanced era of legal practice is on its way, poised to redefine the standard of care in law.

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Until next time, enjoy the journey and never stop making each day your masterpiece.

Mitch Jackson, Esq.

More about Mitch

Mitch Jackson is an experienced trial lawyer and private mediator. He is a 2009 Orange County Trial Lawyer of the Year and also a 2013 California Litigation Lawyer of the Year. With over 70 trials and three decades of legal experience under his belt, Mitch brings a wealth of knowledge to the table as he helps clients navigate traditional civil litigation matters and also new business and legal issues in the digital dynamic landscape found at the crossroads of law, business, and technology.

In addition to speaking at major events including several times at Tony Robbins Business Mastery events before audiences of thousands, Mitch is the author of six books, “How To Create AI, Web3 and Metaverse Branding and Licensing Opportunities,” “The Web3, Metaverse and AI Handbook,” “From AI to Blockchain: 14 Technology Trends Every Lawyer Must Know,” “The Mediator’s Handbook: Turning Conflict into Collaboration,” “From Courtroom to Boardroom: A Trial Lawyer’s Guide to Winning Negotiations,” and “The Ultimate Guide to Social Media for Business Owners, Professionals and Entrepreneurs”

Mitch is also a consulting expert to the book, “Shame Nation,” written by Sue Scheff with the foreword by Monica Lewinsky and, a contributing expert to the California Continuing Education of the Bar (CEB) “Effective Introduction of Evidence in California- Chapter 54 Electronic and Social Media Evidence.”