AI can be a valuable tool, but relying on it without professional legal advice can create serious and costly problems. In this article, Michael Gossage, Senior Associate Solicitor, looks at the risks individuals and businesses should consider when using AI to bring or defend a legal claim, and explains why seeking advice at an early stage remains so important.
AI can be a valuable tool, but relying on it without professional legal advice can create serious and costly problems. In this article, Michael Gossage, Senior Associate Solicitor, looks at the risks individuals and businesses should consider when using AI to bring or defend a legal claim, and explains why seeking advice at an early stage remains so important.
There is no doubt that AI can be an extremely helpful tool when used responsibly. This article isn’t intended to discourage its use; far from it. In my view, any litigation solicitor who does not use AI appropriately risks putting themselves and their clients at a significant disadvantage.
However, AI is still developing and is not without its flaws. Users may have encountered “hallucinations”, where false or misleading information is presented as fact. In the legal world, phantom – or non-existent – case law being presented at court continues to make headlines. Spoiler: judges do not like it.
Our firm is embracing the responsible and ringfenced use of AI. Our internal feedback is a healthy mix of colleagues sharing helpful new ways of working, while taking care to ensure that any AI-generated content is checked at a basic factual level and against our professional experience. We see AI as a tool to assist legal teams, not replace them.
The risks of handling a court case with AI
What I have noticed recently, particularly over the past six months, is an increase in enquiries from individuals and businesses who have managed court cases themselves with the help of AI, then approached us at a very late stage seeking formal representation at the final hearing.
In the main, these cases use sound fundamental legal principles and, from that basic perspective, may be in better shape than if an unqualified individual had simply ‘had a go’ without using AI. However, I am noticing three negative trends associated with an over-reliance on it.
1. Incorrect or non-existent legal authorities
The first is the incorrect use of legal authorities – the legislation, regulations and decided cases relied upon to support an argument. Recently, I have seen parties cite regulations from Canada, domestic legislation which has long since been replaced and cases which simply do not exist.
Presenting authorities may appear to make your position more credible, but if they have not been checked, it can have the exact opposite effect, particularly if you must concede to an opponent or a judge that you have relied on an incorrect or non-existent authority.
2. Overconfidence and poor conduct
Secondly, using AI to present legal arguments can give unrepresented parties confidence which sometimes spills over into poor conduct. I am increasingly seeing very robust correspondence, dismissals of invitations to mediate and rejections of serious settlement offers. People may do this confidently, and sometimes impolitely, without understanding the potential consequences. A court can order you to pay the opponent’s legal costs for poor conduct, or for rejecting an offer which ought to have been accepted, even if you still “win” the case.
3. Important omissions from claims and defences
Finally, while AI-generated claim forms and defences can use sound fundamental legal principles, I am seeing worrying omissions in how cases are presented. Examples include claims which do not put forward alternative arguments, and defences where a counterclaim or a right to deduct one sum from another has not been formally included or properly set out when it should have been. These omissions can be fatal to a case.
Why early legal advice matters
It is problematic when cases involving a mixture of these issues are presented to us at a very late stage. An application to the court shortly before the final hearing for permission to rewrite a case may be refused. Even if it is allowed, it can come at enormous cost because the case may effectively need to restart, with the formal statements of case and witness statements rewritten.
The purpose of this piece is not to scaremonger. AI is a tool which should be embraced responsibly. However, at present, it remains a tool to assist litigators rather than a replacement for legal advisers – and it may never become one.
The conversations I have with these enquirers have a consistent theme: once the problems with their case and conduct are explained, they wish they had obtained advice from an experienced litigation solicitor at an earlier stage. Failing to do so can be a very costly mistake. Although legal advice and representation can be expensive, the cost may be a fraction of what is required to rework an entire case after the event.
If you’re considering bringing or defending a claim, taking advice early can help you use AI appropriately while avoiding mistakes which may be difficult or costly to correct later.