The AI Advocate: Tracking the Impact of Artificial Intelligence on Trial Advocacy
Browning, John G.
Abstract
In his annual State of the Judiciary address on December 31, 2023, Chief Justice John G. Roberts chose to focus on the use of generative AI. He cautioned that while AI "has great potential to dramatically increase access to key information for lawyers," its use "requires caution and humility" because of the risk of "dehumanizing the law." Chief Justice Roberts' timely warning, made at the height of concerns nationally about lawyers relying on fabricated case citations caused by the "hallucinations" of generative AI, could have just as easily been targeted not only to the legal profession generally, but to trial lawyers in particular. As this Article discusses, AI is being used by trial advocates for a wide variety of tasks beyond the legal research and drafting chores that have gotten some lawyers in ethical hot water. Trial lawyers are using AI for everything from jury selection to the preparation of closing argument. As with AI's use in other facets of legal practice, this presents not only great opportunities and benefits for trial lawyers and their clients, but also significant risks. The Article discusses these benefits and pitfalls across different stages of trial practice. AI tools can offer heightened efficiencies in jury research and case preparation, but they also present privacy concerns and may make inappropriate generalizations. Furthermore, the lack of transparency with AI decision-making raises important questions about the exercise of an attorney's independent professional judgment, as the right to a fair trial and the integrity of our legal system are too important to be left to the inscrutable decisions of a "black box" algorithm. Modern trial lawyers are practicing in a shifting evidentiary landscape where AI-generated content poses new challenges for the presentation and authentication of evidence. This Article provides helpful guidance for trial lawyers and judges navigating these evolving technological and ethical considerations.