In a recent presentation by Ward and Smith attorney Angela Doughty, in-house counsel received an
overview of Artificial Intelligence (AI), how it can be used for
various legal tasks such as research, discovery, and contract
development, and pitfalls to avoid when implementing the
technology.
Doughty is a Certified Information Privacy Professional
(CIPP-US) and leads the firm’s Privacy and Data Security and AI
groups. She also serves as the Director of Legal Innovation for
Ward and Smith, routinely advising the firm and clients on data
privacy and security, intellectual property, AI, and technology
applications related to the legal field.
In terms of leveraging data to identify patterns, predict
behavior, and display advertisements that are personalized to the
user, AI has been around for decades. The new AI that has garnered
media attention, thanks to platforms like ChatGPT and Bard, is Generative AI (GAI), which simulates human
reasoning by using large language models and a text-based model to
respond to prompts.
“Generative AI is able to create text, code, images,
music…but there has been a lot of discussion about whether this
content is new or original,” Doughty said, “as it is
essentially developing this content based on the creativity of
somebody else.”
Pitfalls of Generative AI for In-House Counsel
Although able to quickly synthesize massive amounts of data and
produce a response that appears to be knowledgeable, GAI lacks the
“mental” capacity to recognize when information is either
unreliable or there is not enough available.
Aside from “hallucinating” occasionally, AI does not
fact-check or Shepardize. Further, unless specifically designed for
a particular use, it does not have industry context or nuance.
“It’s still better to ask a colleague for advice at this
point,” noted Doughty.
Data privacy and security are other concerning issues. The terms
of service in ChatGPT and Bard spell
out that the systems are allowed to keep any information they
receive for training purposes. The stated intent is to improve the
technology and that is an easy sell for many who believe in the
benefits.
Some do not have as much trust in the systems, however. Elon
Musk, a critic and proponent of the technology, recently said in an
interview with Andrew Ross Sorkin on CNBC that OpenAI is lying
about not using copyrighted information.
Similarly, a discussion of AI may be incomplete without
mentioning the recent Hollywood writers’ strike and its goal of
prohibiting the use of AI for screenwriting, or to undermine the IP
rights of a writer.
Automating the Mundane for Legal Departments
AI, and especially GAI, can be an effective tool in the legal
field. Research using AI or GAI does not require the use of
keywords, cite keys, or boolean operators; instead, it is possible
to simply ask the technology a question, similar to speaking with a
colleague.
Worries over citing the wrong statute or sifting through tomes
of irrelevant information may be a thing of the past. Eliminating
the latter is a cause of concern for many veteran attorneys, the
idea being that researching and analyzing is essential for
attorneys to develop a broad knowledge base.
Drafting contracts, analyzing contracts, due diligence and
e-discovery are other areas that GAI has the potential to
streamline for attorneys. “You can give it a word or
timeframe, and it will summarize all the documents related to those
parameters, along with links to relevant items in the
document,” noted Doughty.
Risk assessment for litigators receives a similar benefit.
“The GAI will outline your risks for certain decisions, based
on your strategy and its ability to synthesize vast amounts of
data,” advised Doughty. “It will then provide a
recommendation for implementing your strategy.”
GAI could potentially save countless hours, but there are many
items for attorneys to be aware of in regard to the technology.
Attorneys must have a basic understanding of the technology to
ensure quality legal services and comply with professional ethical
obligations.
The use of GAI does not preclude accountability, as attorneys
will remain responsible for the work that is delivered. This
summer, an attorney in New York delivered legal work formed by
Generative AI where the cited cases were hallucinated, causing tremendous embarrassment.
Safeguarding proprietary company information is another key area
of concern. “When dealing with vendors, it’s important to
review their terms and conditions. Knowing whether they are using
your data to train their systems or if they are putting it into
some sort of AI black box for future use or selling is
essential,” Doughty explained.
“My advice is to not allow the vendor to do anything with
the information you feed into their system, except keep it in the
confines of your company system. Some vendors may refuse, and it
will boil down to how badly you want to work with them,” added
Doughty.
Communicating the extent to which GAI will be used in the
representation process, how it will affect billing, and ensuring it
does not result in biases/unfair practices are other important
factors.
A Revolutionary Tool for Legal Departments
The hype surrounding GAI may not be overblown. To illustrate the
effectiveness of the technology, Doughty shared a number of
real-world examples, including how she used it to create a summary
of Fahrenheit 451, with the top five points and character
information, in order to be able to discuss the book with her
daughter for school projects.
Having a blog written by AI can be achieved by providing it with
a topic, a target audience, and a few links. Although the speed and
accuracy of AI-created blogs are amazing, it may be worthwhile to
review whether the copy was plagiarized from said links, as
Musk’s claim may not be complete paranoia.
Similarly, it’s important to understand that any content
developed by AI is likely to contain embedded code or links. Aside
from the ethics involved, this makes it inadvisable to claim the
content is an original creation.
Also, the quality of the work is often bland and substandard.
Doughty advised that working with GAI should not be a
copy-and-paste type of situation and everything should be reviewed
thoroughly both for facts, accuracy, and for tone.
Doughty recently used GAI to help her fix a broken toilet. For
background, Doughty explained that her husband is a contractor and
mentioned her lack of experience troubleshooting household issues.
“The guidance provided by the AI far surpassed the
instructions on the back of the tool, and I was able to solve this
problem in a shorter timeframe than I thought possible,” she
said. “Score one for Generative AI!”
Problem-solving is another area where AI technology excels. In
the past, figuring out how to generate additional website traffic
might have required a few hours spent reading how-to articles. Now,
the AI is able to provide actionable recommendations in
seconds.
Summarizing lengthy white papers, writing emails and translating
documents are other examples of the technology’s potential.
AI Best Practices for In-House Counsel
Considering that technology can quickly develop memos,
presentations, or evaluations, the potential for time-saving is
significant. “Obviously, it’s not perfect, but it’s
generally going to get you 60 to 70 percent there. It’s easier
to edit and rewrite than starting from scratch,” commented
Doughty.
Leveraging the technology is different from inputting keywords
into a Google search. Instead, users should imagine they are
working with an assistant or paralegal. To save time and attain the
maximum possible benefit from the technology, it is advisable
to:
- Ask clear, specific questions with details and context
- Offer background/target audience information and space
constraints - Use prompts that encourage detailed responses, opinions, and
explanations - Experiment with different prompts and tones
“The tech is especially useful when responding quickly is a
necessity. We’ve all gotten those late-night requests where we
need to respond and know the answer, but our brains are tired from
working all day. Recently, I asked the AI to summarize the damages
available under the
Lanham Act in bullet points with a business executive as a
target audience, and it was a very helpful starting point,”
added Doughty. The key, however, is to be sufficiently familiar
with the topic to be able to fact-check the AI’s responses.
Questions from In-House Counsel
The large number of questions indicated there is a substantial
amount of interest in the technology. One audience member wondered
whether copyright law is an issue.
Copyright concerns:
In response, Doughty referenced a similar case involving a
monkey that took a picture. Those in favor of the monkey being able
to own a copyright argued the animal did not use the creativity of
another entity to create the work. The courts ultimately decided,
however, that a monkey cannot own a copyright.
“I would only ask the AI to update material I already
owned,” Doughty said. “You have to be careful with this
from a copyright perspective because there are significant
penalties. Our advice to clients is to only put in content you
actually own if you plan to use whatever the AI makes for a
business or commercial purpose.”
Adoption of AI by Legal Departments:
Another audience member asked about the level of implementation
Doughty has witnessed across different business segments. Most
legal departments have been reluctant to implement the technology
based on concerns over accuracy.
Sales and marketing teams have been early adopters, using AI to
develop marketing collateral. “It’s hard to see where
marketing content came from, so it’s kind of like the Wild
West, but my thinking is that a conservative approach is best,
i.e., do not use it unless the technology has been licensed by the
company and you have been trained on it,” Doughty
explained.
Advice on Adoption:
Doughty was asked what advice she had for people who may need to
encourage their managers or leaders to adopt the technology.
Doughty explained it is important to outline how the technology
is going to benefit the organization and augment existing
processes. “It may also be important to let them know the
potential costs of ignoring the technology, not conducting
trainings or implementing it appropriately,” noted
Doughty.
The interaction between AI and social/moral issues formed the
crux of a final question. “Especially with social media, the
divisiveness and sheer amount of opinions can result in biases, as
the technology is usually pulling information from everything
available. This is why it’s so important to draw a line around
the data set that can be used and be very particular about your
training,” concluded Doughty.
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