I have been amazed at the knee-jerk and head in the sand reaction of many courts to the use of Gen AI by lawyers appearing before them and the use by judges. Several judges have demanded that lawyers disclose the use of Gen AI and, if so, verify the accuracy of the citations that have been used. One judge even went so far as to demand disclosure of any AI tool, generative or not. And the 5th Circuit is considering not only requiring lawyers to disclose and verify but also requiring non-represented parties to do the same. (Like how are they going to do that?)
Of late, though, there have been more studied reactions to Gen AI in law. There is a welcome recognition of its potential benefit in judicial proceedings by both lawyers and judges.
UK Judicial Council AI Guidance
On December 12, the UK Judicial Council issued its Guidance for Judicial Office Holders in England and Wales for using AI and Gen AI. This document acknowledges the inevitable: judges and lawyers will, and probably should, use these tools. It emphasizes education over edicts. It’s a stance that acknowledges the reality of Gen AI usage and promotes a nuanced understanding of its application.
The Council’s Paper begins by clarifying what Gen AI is and how it differs from broader AI applications. The Council offers definitions to clear up any misunderstanding about the tools. Then, it delves into the mechanics of Gen AI and large language models in a layperson-like manner. It describes in plain language how the models work and what they do.
The Paper discusses the risks and limitations of Gen AI. It notes that the tools are perhaps best used for nondefinitive confirmation rather than to generate new facts. The
