Written Advocacy Handbook – Prologue – On AI and Advocacy

Anyone with an internet connection over the past two years has seen, heard of, or perhaps personally felt the tidal impact of artificial intelligence across almost every industry. In the legal services industry, there has been a near-constant conversation about the role of AI in the future of legal services (and the residual role of human lawyers in the provision of legal services).

Lerners Appellate Advocacy Practice Group has been part of that conversation. We’ve been wondering whether AI, including AI language models like ChatGPT, might be on the path to taking over one of the most important tasks of appellate advocates: effective written advocacy.

To help answer this question, our very own Jordan McKie put the tool to the test, asking the AI program: “Should I use GPT-4 to draft a factum for me?”

The answer we received is reproduced in full without edits or redaction below:

Answer:

As an AI language model, GPT-4 can assist you in drafting a factum for a court appearance, but there are several important reasons why it may not be suitable to rely solely on AI for such an important task:

1. Lack of Personalized Knowledge: AI does not have access to your specific case details, the nuances of the situation, or the full context, which are crucial for writing an effective factum.

2. Lack of Legal Expertise: While GPT-4 can generate text based on a broad range of knowledge it has been trained on, it does not have true legal expertise or a human lawyer's ability to analyze, strategize, and apply legal knowledge.

3. Inability to Interpret Laws: AI cannot interpret or understand laws in the way humans do. Laws are often subject to interpretation and require a deep understanding of legal precedents, local statutes, and legal principles that AI cannot fully grasp.

4. Ethical and Legal Considerations: It's worth mentioning that legal advice should only be given by a qualified legal professional. Depending on the jurisdiction, providing legal advice may be considered practicing law and would be subject to licensing and ethical standards, which an AI cannot satisfy.

5. Updating Limitations: As of my last update in September 2021, AI models like GPT-4 are not continuously updated. This means they cannot provide information on changes in the law or important court decisions after that time.

6. Lack of Creativity and Strategy: While AI can generate coherent and structured text, it cannot provide the creative legal strategies, negotiation tactics, and experience-based wisdom that a human attorney can.

For these reasons, it's crucial to consult with a qualified legal professional when preparing a factum for a court appearance. AI can be a useful tool to assist in certain tasks, but it cannot replace the need for expert human advice and judgement.

More than just a reassuring nod to lawyers everywhere, GPT-4’s answer offers some cogent reasons why a human lawyer who is an effective written advocate is essential to advancing a client’s position in any case, particularly on appeals.

For this reason, over the next 12 weeks, we will be sharing a weekly article on effective written advocacy and compiling those posts into a “Written Advocacy Handbook” – a quick reference guide for the legal writer. Stay tuned!