AI

I think about AI in the same way I’d think about the ocean if I lived in Tuvalu. Every morning, as I log on to the digital landscape that defines my working world, it’s like stepping out of my home and noticing a few more parts of the environment have been damaged by the salt from rising seas.

Yes, AI has positive uses. So does salt. That doesn’t mean it isn’t weathering everything it touches. It’s hardly a stretched metaphor to describe the world as drowning in a rising sea of AI, or at least in the mania attending it. Every industry sector is feeling the stress.

In response to the rapid innovation of the AI revolution, the position of my profession — law — has been part sanguinity, part inertia-ridden resistance. It will be overcome last of all, and never quite.

Still, AI is aggressively pursuing its infectious path into the legal domain. This is partly conscious. AI startups and monster tech houses are gaining constant financial momentum: the use cases for AI in law are compelling, and there is a lot of money to be made from the theory of streamlining legal process and knowledge.

It’s also largely unconscious. AI piggybacks into law on the choices of both lawyers and clients, who, as humans, are fundamentally changing how they think about the creation and sharing of information with the greedy assistance of proliferating AI tools.

In practice, the consequences are playing out in real time and in really annoying ways. The law courts are scrambling. Their troubles began with lawyers presenting submissions written by ChatGPT, replete with hallucinated references to previous case law. This is still happening, and lawyers are facing severe disciplinary consequences for outsourcing their professionalism to a chatbot that only lives to please. The courts have also had to issue rules about the use of AI in drafting affidavits and other filed documents.

The courts know they’re barely holding back the rising tide of AI. But that’s a small problem compared to the tsunami threatening to drown the justice system altogether: self-represented litigants. These have always existed, in a manageable quantity. But AI’s advent, like a surge of unprecedented electrical power, is creating a Frankenstein’s monster.

All courts are being flooded with claims, filed by self-represented plaintiffs but drafted by AI. The Fair Work jurisdiction has been copping it the worst, but the spread is universal. Many no-cost jurisdictions have been created in recent years, on the principle of not shutting individuals out from justice due to prohibitive cost risk. It wasn’t contemplated this would open the door wide to AI-powered speculative lawsuits, which are now arriving in torrents.

One phenomenon we’re seeing a lot? A litigant asking us to review their claim and advise them on how it can be improved and for tactical advice on how they should run their case. They offer to pay for this advice, but they’re not asking us as lawyers to represent them in court.

What we’re being asked to do here is review AI’s work, as if it were a junior lawyer who’d prepared the first draft.

Similarly, we now often get emails, clearly written by AI, from clients with detailed instructions for the commercial or other advice they seek. Or, after we’ve provided advice or drafted a document (eg, a contract), we get a long email back asking dozens of questions and proposing piles of amendments, this time the product of AI’s review of our work.

This is all fun and a ridiculous waste of everyone’s time and our professional skill, but the infection also has consequences that clients are not considering. We know they’re feeding our advice and their documents into open-source LLMs, asking AI to synthesise it all and do its magic. In the process, they are surrendering any claim they otherwise had to the confidentiality of that material and the lawyer-client privilege attaching to their communications with their own lawyers.

Ultimately, AI will overwhelm such quaint legal constructs as confidentiality and privilege, in the same way that it is destroying (truthfully, has already destroyed) copyright as a legal concept. In the meantime, chaos.

We are as likely to reverse the tide of AI as we are to hold back the ocean’s rise. There are no seawalls high enough. I’m not concerned about the survival of lawyers (we literally outlast everything), but the law itself and our antique conceptions of justice? These I’m not so sure about.

All you can do is move to higher ground.

This article was first published by Crikey.

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