Generative AI - is it a real threat?

When I started practise, the fax machine was a new invention.  Within a month, every firm in Wellington had a fax, and was grappling with how to charge for it (based on the expense of the ubiquitous telex machine).  Similar trends followed with desktop PC’s, the internet and email.  In the early 1990’s we had a closed gateway system for email within the new airport project team which enabled me to look into other members’ inboxes, see if my email had been read, and to extract it if I needed to change something.  One day, I wondered why the email was down, only to find that our office manager had turned the router off because she thought it “needed a rest”.

This week, at the IBA in Paris, we were addressed by Zack Kass, former head of Open AI marketing. Zack’s message was for lawyers to get on board with technology or get left behind.  I suspect there is little risk of that, but there are some cautionary issues.

The first is that Generative AI (the ability to generate text with a level of autonomy) will depend on the underlying protocols and the quality of the input data.  As UC Berkley Prof. Stewart Russell pointed out in his 2021 Reith Lectures, there is currently little to no agreed standard protocol, let alone regulation, on the limits of artificial intelligent intervention or involvement. This can have alarming consequences in warfare and armed conflict; not least when the AI comes to the conclusion that further human involvement is counter-productive, and disables the On/Off switch!

In legal proceedings, the downside can be far more banal, as in the case of Mata v Avianca, where the submissions for the claimant were generated entirely by ChatGPT, including invented cases and fictitious citations.

While generating sonnets and haiku may provide after dinner entertainment, any pleadings and submissions generated by AI need to be treated with considerable care.

The second point is more positive, and perhaps compelling, in removing much of the drudgery in compiling factual backgrounds, summarising submissions, managing documentation and some research (with the warning of Mata v Avianca fresh in the mind).  But, the reasoning and direction of the parties’ positions should not, in my view, be surrendered lightly!