AI, Legal Consumers And The Future Of Dispute Resolution

AI may ironically and ultimately create more litigation, more dispute resolution and more demand for legal assistance. The unresolved issues are responsibility, verification and the difference between AI assisted and AI created legal information and what is construed as legal advice and legal work.

Artificial intelligence is changing how consumers understand their legal rights, assess disputes and decide whether to take legal action and, in some cases, actually do so.

It is also changing when and how lawyers and judges become involved in the dispute resolution and litigation process.

The central unresolved issue in any discussion amongst all this, is about ultimate responsibility, especially when things do not go as planned.

Who bears ultimate responsibility when AI-generated legal information is turned into various legal forms of action by a legal consumer turned client or self-represented litigant, and then goes pear shaped in the legal process?

We are dealing with this dilemma in society right now in our courts, in real time.

The issue is only going to get bigger, more complicated and potentially worse before it gets better.

Banning the use of AI however is not the solution.

AI is here to stay and will only become a bigger and more influential part of our lives.

Blind Faith

The major problem at the moment with consumer self-represented use of AI in dispute resolution is blind faith in AI-generated “legal” material and reliance upon it without any form of external validation before it is used.

AI technology may give a consumer confidence through its legal information that they have a case even where the claim has no proper legal foundation or is legally hopeless.

A lawyer briefed by a client with AI generated material in relation to a dispute may stop it dead in its tracks as it comes before them in their office.

A judge has far less ability to stop it, once a claim has been filed in court by a self-represented litigant inspired by AI-generated legal information.

It is in no one's interest to see the court system flooded with hopeless litigation.

Nor is it particularly helpful for a lawyer's office to be flooded with misconstrued AI-generated legal information or advice in anticipation of some meaningful hope of early dispute resolution.

So we do have a major problem here.

False Confidence

Once AI has provided or reinforced a legal position, the consumer may become increasingly committed to it, sometimes even after consulting a lawyer.

This can mean unnecessary costs are incurred, positions in the consumer's mind become hardened and expectation management becomes increasingly difficult as false confidence builds and builds.

The financial and emotional consequences can also be enormous if the matter is ultimately lost.

I say “if” here above because I do not want to dismiss all AI-generated legal information as useless in the dispute resolution process.

It is not.

The problem for the consumer is that, because of the often seductive nature of the legal information being provided by AI, working out what is right and what is simply wrong can be difficult - quite simply because they are not an experienced lawyer.

The problem is not limited to consumers either.

Solicitors and barristers worldwide have been caught short in court after relying upon AI-generated material without properly checking the authorities, citations and legal reasoning being advanced.

The risk may be even greater for junior members of the legal profession who, not unlike consumers, may not yet have sufficient experience, judgment or confidence to test and push back against AI's persuasive responses.

Under time pressure, legal information that sounds right may be indeed treated as right.

I totally understand why judges are so concerned about courts being flooded with false information confidently presented.

There is also the very real risk of contaminating the common law if false authorities, incorrect legal propositions and AI-generated reasoning are repeated, relied upon or allowed to pass unchecked let alone the unhelpful and useless nature of legal information presented in cases requiring dispute resolution when it is clearly wrong or irrelevant.

The problem, however, is that AI itself is probably not the problem.

Blind faith reliance in the technology is.

AI-Assisted Is Not The Same As AI-Created

There is an important difference between AI-assisted and AI-created legal work.

AI-assisted work uses technology to “help” research, organise and/ or draft material.

Consumers can do this and are already doing so.

My view is that this is where it should stop, before the material is handed over to someone with responsibility and sufficient legal knowledge - namely, a lawyer (I know lawyers are expensive).

“Help” as I said before is the operative word here.

An AI-informed consumer may still be of little assistance to themselves, or to the legal system they are about to enter and traverse, if they cannot properly assess whether the information they have received is legally sound.

AI-created legal work is even more fraught for the consumer.

It involves generating and relying upon material based upon facts entered by the consumer, without adequate identification of the right legal issues, proper checking, professional judgment or the responsibility of review again by a lawyer, an experienced one.

AI cannot take responsibility for whether the law is correct, for whether that law applies to the consumer's particular facts nor can it take responsibility for whether the evidence is sufficient to support the case.

It cannot take responsibility for whether action or proceedings should be commenced at all.

Responsibility must remain with the person producing, filing and relying upon the material.

For lawyers, that responsibility is professional.

For self-represented legal consumers, the position is far less clear and potentially very fraught if even one step in that process is wrong.

So Who Bears Responsibility?

There are a large number of legitimate questions that warrant answers arising from all of the above.

What level of checking and verification should be required?

Should self-represented litigants face the same standards before a court as legal representatives?

What responsibility should fall on AI providers?

How early should courts intervene where material appears legally incoherent or a claim appears legally hopeless?

At what point does AI assistance become legal advice?

How should society deal with people who genuinely cannot afford a lawyer?

AI companies may state clearly that they provide legal information rather than legal advice. The consumer may nevertheless see the product of AI as fast, free and better legal advice - yes, advice, not merely information than they have ever previously been able to access.

Frankly, many consumers may now believe it is all they need to traverse the legal system and find a solution to their dispute. This is a huge issue and problem.

Given the pervasiveness of these issues, the real answer to the question of responsibility may therefore be all of us.

AI providers.

Consumers.

Lawyers.

Courts.

Regulators.

Governments.

All of us have some part to play.

That however also creates the uncomfortable possibility, that responsibility for managing and resolving, becomes so dispersed that no one, in particular, is seen as ultimately responsible.

That is the issue we are going to have to confront.

The Consequences For The Legal System

The increasing use of AI in dispute resolution and litigation is likely (sorry, but it is already) to produce more claims, more complicated proceedings, legally defective pleadings and unrealistic expectations about prospects of success.

In the first instance this will place further demands on court officers, registrars and judges.

It will create additional stress and expense for represented parties and greater pressure on lawyers acting for the other side to assist the court.

The represented party may win and still be left substantially out of pocket.

The self-represented litigant may face financial ruin after pursuing and losing a case, including legal costs awarded against them.

Court time may also be wasted on matters that have no proper legal foundation while cases genuinely requiring judicial attention take longer to resolve.

Courts cannot be expected to solve the underlying problem alone.

Governments will need to consider funding for legal information, public education, early legal assistance and court and tribunal triage.

This entails serious resources as well as costs serious money.

It cannot simply be left to the legal profession, courts and other legal institutions within existing frameworks to absorb.

Ironically, AI May Be Both The Problem And The Solution

AI is getting better and better.

AI is not going away.

These are both givens.

Improved use of AI may have to become part of the solution through earlier court administration processes, pre filing legal triage, greater access to legal information and earlier identification and outside resolution of the genuine issues in dispute.

There is, however possibly a circular argument here.

Better AI in the solution to the problem may make producing legal information and documents even faster, cheaper and easier for consumers.

That may lead to greater use of courts and tribunals, creating an even greater need for AI-assisted triage, legal review and court administration.

One feeds off the other, and all of this is happening in real time.

There may be what is called a Jevons-style paradox emerging here.

As the cost and difficulty of producing legal material falls, the amount of litigation, dispute resolution and demand for legal assistance may increase rather than decrease.

Ironically, AI may result in more litigation, more dispute resolution and more work for lawyers, whether that work is provided in an unbundled, assisted, additional or traditional form.

Every response to the problem we are currently facing has its potential benefits, drawbacks and costs.

What This Means For Lawyers

AI is already changing the work and role of lawyers.

Clients are increasingly arriving with AI-generated research, correspondence, advice, pleadings and proposed strategies.

Some of it as we said earlier will be useful. Some of it will be wrong, and the client may be outright misinformed.

The problem is that the client may already have accepted the AI-generated position as correct before speaking to a lawyer.

They may have sent correspondence, made allegations, rejected reasonable offers or commenced proceedings based upon the AI information. This in itself is not novel for lawyers and especially those who practised when the internet era first began.

The lawyer’s job will increasingly however now involve separating useful information from the false and invented and legally persuasive but outright wrong.

That role will continue throughout the retainer as the legal client checks the checker more and more.

Don’t get me wrong, AI can and does assist with drafting, organisation and identifying of legal ideas and the raising of novel and interesting issues.

However strategy and judgment should remain firmly within the lawyer’s domain.

The Opportunity For Unbundled Legal Services

The problem remains in dispute resolution that most legal consumers cannot afford traditional full-service representation throughout a dispute.

What may happen, is that many however may increasingly choose to pay for a defined review of AI generated information, in the form of perceived advice, letters, potential pleadings and draft submissions.

I think lawyers will start to see more unbundled legal work, on a scale never seen before - on steroids.

There is a clear role for lawyers as trusted advisor providing limited or unbundled legal assistance. That may include advising whether a claim is legally hopeless, checking authorities and citations, fixing things, identifying missing stuff, reviewing a pleading before filing or providing advice at critical stages of the dispute resolution and litigation process.

The scope of legal work under a limited retainer must be very clear however for both parties and it is here where the lawyer is starting to carry huge risks

Another problem is the seductive confidence of AI and the expectation that a lawyer can quickly approve, repair or assume responsibility for large amounts of AI-created material - because in the client’s eyes, most of the work has been done already.

The issues here are retainers, costs and risk as well as potentially even more false confidence to the legal client that their legal information has been vetted by AI and a lawyer!

Lawyers will also encounter AI-created claims when acting for the other side.

A professionally presented claim may require considerable work to unravel, even where it has no proper legal basis.

That means additional time, cost and stress for the represented party.

Those costs may never be recovered, even if the case is ultimately won.

Where Do We Go From Here?

AI may give people who have never had proper access to lawyers a greater understanding of their rights and a greater ability to participate in the legal system.

That is a significant opportunity, what I call both a sword and a shield.

The same technology that helps one person identify and exercise a genuine legal right may give another the confidence to pursue a case with no proper legal foundation.

The answer is not to discourage legal consumers from using AI. That will not assist, and it will not stop them.

The immediate task is to develop better training and education for consumers, lawyers and judges as well as earlier assistance, better triage, limited legal review and clearer responsibility lines within the legal and court systems, without destroying the accessibility that makes the technology valuable.

Lawyers are and will continue to deal with this problem daily.

Court rules and case management deal with the problem once it has entered the legal system.

Consumers also need protection from themselves.

The harder question is what governments, the profession and society choose to do before all that happens.

The dilemmas, opportunities and problems belong to society as a whole.

The legal profession alone cannot deal with an issue of such consequence.

Paul Ippolito is a legal futurist and Principal of Ippolito Advisory