In March, Don Walsh wrote in this space about how AI was reshaping the legal industry. Don maintained that while AI certainly had benefits relevant to lawyers (enhancing efficiency, improving access to information), AI ultimately could never replace human judgment.

That remains true with regard to lawyer use of AI. When used alongside seasoned professionals, AI can certainly assist (and is already almost certainly doing so at every major law firm across the country).  

It’s a different matter entirely when AI is used instead of an attorney. When businesses (and even individuals) solely rely on AI, it has been my experience that the forest is often missed for the trees. Consider the following examples:

A business owner asks AI to update his company’s employment agreements and policies. The AI does so, but it doesn’t take into account a state law update because the business owner does not mention in his prompt that the company has recently hired a remote worker in that state.

Negotiations for a commercial lease fall apart when a prospective tenant, relying upon AI, refuses to budge on a term that AI classifies as a “must have.” However, AI isn’t aware of commercial norms in the area and doesn’t have the lived experience of a transactional attorney who has never seen the term at issue cause a significant problem.

An HR professional submits an AI-drafted Position Statement in response to a Charge of Discrimination. AI (as is its wont) includes every factual detail provided to it in the Position Statement response, obfuscating the issues and creating a foothold for the EEOC investigator to demand further information related to what would otherwise bean irrelevant detail.

In all of those examples, the AI-reliant party saved money on the front end by not having a lawyer draft the employment agreement, negotiate the lease, or investigate and provide the position statement. However, in those same examples, the cost savings on the front end are illusory:

When an employment agreement violates state law, the company: (i) loses the protection of the agreement, rendering it worthless; (ii) could be subject to a claim from the affected employee; and (iii) will inevitably use a lawyer on the back end to clean up the problem.

If a lease falls apart over what should be a meaningless term, the prospective tenant loses what otherwise could have been a lucrative opportunity for their business.

The money saved by not having a lawyer draft the position statement could easily be subsumed by company time (and likely lawyer time) responding to EEOC investigations and requests for information that otherwise would not have occurred.

AI is only as good as the information entered into it -- it doesn’t know what it doesn’t know. In the first example, a seasoned employment lawyer will know to ask about recent out-of-state hires. AI will not do so if it is simply told to draft the agreement.

The world is rapidly evolving, and knowing when and how to use AI is already a necessity for most professionals. However, when considering AI as a substitute for legal work, be wary of what it could cost down the road and whether that justifies the immediate savings.

‍