Years ago, I put together a presentation called “The Client-Centered Law Practice.” It focused on the irony that while law firms focused on serving clients and appropriately addressing their legal needs, clients sometimes had an impression that differed from that. To those (hopefully few) clients, it seemed that the law firm was busily engaged doing important work for other, very important people, while their matter was not a priority.

In fairness to lawyers, that was often the perception rather than reality. But in the legal world, your client’s perception often is your reality. Certainly, it is your reality where concerns such as client retention and clients referring others to the firm are involved. So client service improvement is important – even though lawyers understandably focus more on the legal work.

Designing a law practice that provides exceptional client service should be the goal of every lawyer. But this goal requires an understanding that accomplishing great results for the client’s legal problem differs from providing good client service.

Suppose the lawyer settles a claim for $10,000.00 more than anticipated. The lawyer is thrilled by the accomplishment. The client, however, may have their assessment of the lawyer’s performance clouded by the number of times they waited several days for the lawyer to return a telephone call or the in-person office appointment that started 15 minutes late and was then cut short because the lawyer had a court appearance.

What about receiving a better-than-predicted settlement? Once a client is critical of a lawyer’s performance, it is easy for the client to assume the lawyer was just “low-balling” that initial estimate. Weak customer service practices impact every aspect of a lawyer’s representation of a client, including weakening the client’s confidence and trust in the lawyer.

A MAJOR CHANGE IN LAW PRACTICE: THE TYPE OF CLIENTS SERVED

In 1967, businesses constituted 39% of U.S. legal services, and individuals made up 55%. By 1992, it was 51% businesses and 40% individuals. By 2012, the percentages were businesses 72.5%, individuals 23.9% and government 3.6%.

That means that 75% of legal work now involves a client representative who is a general counsel, a government lawyer or a business owner who is knowledgeable about their legal needs. It is understandable that law-firm-to-client communications developed into more like lawyer-to-lawyer communications. Larger law firms may handle more than 90% corporate work, while rural or small-town lawyers may have the opposite ratio, which requires different strategies.

If you haven’t read my thoughts about the practice of people law, I’d encourage you to do so. “The Practice of People Law” was published in the May 2022 Oklahoma Bar Journal. The ABA published my piece, “The Changing Dynamics of a People Law Practice,” in its July/August 2023 Law Practice Magazine “Big Ideas” issue. This is now behind the ABA member’s only paywall, but an earlier piece, The Practice of People Law, was published in the Oklahoma Bar Journal.

AN EMPATHETIC APPROACH

We are all consumers of goods and services. We can all empathize with poor consumer service, whether it is being stuck in a waiting room for too long after a scheduled appointment or providers not doing things as they said they would when they said they would.

Empathy is an important lawyer skill. Having others in control of very important and personal aspects of our lives is inevitably personal. Being forced to discuss your marital problems or an arrest with a stranger is hard. Clients may be embarrassed to discuss some things and will be more likely to be more forthcoming when they sense an empathic listener.

IDEATE  

The design challenge for the law firm is delivering legal services effectively and affordably in a way that assures the client that their matter is being handled diligently and professionally while they are kept informed.

Invite everyone who works in the law firm to participate in brainstorming creative solutions that might improve law office operations. The lawyer’s view of what is most frustrating to clients during the representation process may differ from the law firm receptionist, who may have great input on what they hear.

Post-representation surveys, exit interviews and other techniques can solicit input from your past clients to improve future clients’ representation. One wants to encourage clients to pass along any criticism or frustration they experienced. One good way to solicit these responses is to ask questions like “What is the best thing that our law firm did during your representation?” and “What is an area where we can improve?”

Now let’s discuss some of the major areas that are often ripe for improvement.

MANAGING CLIENT EXPECTATIONS

It is important to appreciate that different types of clients have different expectations. Using your initial interview with the client to set expectations for the representation is important, especially regarding how long it may take to resolve the matter.

A key to representing someone unfamiliar with the legal process is to provide them with understandable and clear explanations of exactly what the situation is and the possibilities for the future. It may become more common to have clients watch a brief video before meeting with the lawyer to gain familiarity without billing them the lawyer’s hourly rate.

Many clients have no appreciation for how much time certain legal processes involving courts and government agencies can take. This is particularly true if their main exposure to the law is watching television dramas where the crime, investigation, arrest and trial all occur within the same episode.

Law firms appreciate the dockets in their jurisdiction, and it should be an important part of the client intake process to help establish the client’s expectations as to how rapidly their legal matter may take to be resolved.

CLIENT COMMUNICATIONS  

No matter how much energy is devoted to planning law firm improvements, it is likely that many improvements will be related to attempting to improve the law firm’s client communication. Some challenges in the attorney-client relationship are caused by poor communication practices. Even if they are not caused by poor communication, the primary way to address the challenges is often through improved communication practices.

Clients are entitled to receive communication in a method that is appropriate and useful to them. But it can also be important to explain how many digital methods of communication are insecure and the consequences of confidential information being exposed to help the client appreciate why the law firm insists on using secure communications tools. Online client portals are a primary tool for accomplishing this. Once you explain the challenges, clients may feel better about logging in and posting queries to the portal as opposed to using email or phone.

The client intake process should cover lawyer client communications and create expectations on how quickly responses to inquiries will occur. Client input is required when important decisions affecting the matter are made. Retaining records of those important communications protects the law firm.

AUTOMATION

Automation wouldn’t have ranked high on lists of law firm needs a few years ago. But today, a law firm should incorporate current automation tools to facilitate client services without needing as much law firm staff time. Your client portal should be configured so that when new documents are uploaded, a notice of the new document availability is automatically sent out to the client. Templates should be created for important client communications that happen regularly just as templates should be created for legal documents frequently used.

TRANSPARENCY

The need for greater transparency is often associated with governmental entities.

It is unnecessary to sketch out every aspect of how representation might proceed during the initial interview. But once the client has retained the firm, it is important to provide a clear road map to understand the steps involved. Many legal matters will deviate from standard process as unanticipated developments occur. If a client is upset about “delays,” it may help to review the original road map initially provided where this type of delay was suggested as a possibility. It is also appropriate to note in a nonjudgmental way when the client’s actions or inactions have contributed to a delay. Transparency should apply in both directions.

RESPECT THE CLIENT’S TIME

No one likes waiting in the waiting room 20 or 30 minutes after their scheduled appointment. Once, clients were more tolerant of this. But today, the law firm must exert great effort to make sure that clients are seen at their scheduled appointment time or within a few minutes afterward.

People today have a more limited attention span for reading lengthy material. If it is necessary to provide the client with a lengthy document or memo explaining a legal position or theory, perhaps the firm should consider beginning these documents with a short executive summary.

ACCESSIBILITY

Lawyers need to appreciate that meeting a client’s preference for receiving information today may require flexibility.

Recently, a colleague talked to a person who was upset about how her 80-year-old father was being treated by his law firm. He was frustrated with his lawyer due to all the emailing, printing, scanning and getting documents notarized he had to do for himself relating to a real estate transaction. When the person tried to discuss her concerns with the lawyer, he became defensive. The father believed he had signed up for full legal representation and was receiving a do-it-yourself experience. Here, expectations were not in line between attorney and client. When we go to a convenience store, we expect to pay a higher price for the convenience. Those with a legal problem have options ranging from online legal information websites to limited-scope services to full-service legal representation. Even though lawyers believe our services are the high-quality option, we must appreciate some clients are hiring us as the easiest, most convenient option.

WHAT IS YOUR EXCEPTIONAL CLIENT SERVICE MODEL?

Every law firm is different. A law firm that serves mainly consumers differs from a firm that serves mainly businesses and corporate clients. A firm in a particular geographical region will reflect the values and culture of that region. Some things that might work for other law firms may not work for yours. Therefore, every law firm must seek its own path forward.

Jack Newton, CEO and co-founder of Clio spoke via video at the 2020 OBA Annual Meeting about this subject. His book, The Client Centered Law Firm, identified five major values of a client-centered law firm approach:

  • Developing deep client empathy
  • Practicing attentiveness
  • Providing ease of communications between lawyer and client
  • Demanding effortless experiences
  • Creating clients for life

What are the values you want your client-centered law firm to prioritize? Improving customer service should be a continuing project for the law firm. But don’t let the scope of this nonbillable task prevent your law firm from taking action. Your clients deserve your best, and less anxious clients make things better both for the clients and those working in your firm.

Originally published in the Oklahoma Bar Journal, October 2023

2023 cast a huge spotlight on Artificial Intelligence tools. That means it is a great year to attend ABA TECHSHOW, which will be held in Chicago February 14 – 17, 2024. But it is time to decide now! The Early Bird registration ends on Friday, January 11 Update: The ABA TECHSHOW website now says the Early Bird Deadline has been extended to January 19. There is a price increase after that deadline.

 

Those who have previously attended an ABA TECHSHOW know what a great event this is. If you have been thinking about attending TECHSHOW previously, then this year provides a great opportunity to learn from technology experts on subjects ranging from AI to Automated Document Assembly to using Microsoft Word more effectively. I encourage you to spend a few moments looking at the schedule of programs. I’m certain you will find something of interest.

The Oklahoma Bar Association Event Promoter code is: EP2403. This code will allow Oklahoma lawyers who are not ABA members to receive a significant registration discount.

It’s that special time of year. By that I mean it is time for the Tech Toys for the Holiday episode from the Digital Edge podcast. Sharon Nelson and I both agree that it is our favorite podcast of the year and many of our listeners tell us the same thing.

This year we have a wide range of tech toys to add to your shopping list, even if you are just shopping for yourself. Our show notes has links to all of the items featured. So even if you don’t want to listen to the entire podcast you can still see the list of items featured for your online shopping. From dash cams to web cams, from a digital microscope to a personal bug and hidden camera detector, you will learn about a lot of devices that you perhaps cannot live without.

This edition of The Digital Edge will be Sharon and Jim’s final podcast. We close with 189 episodes of the Digital Edge completed. So that is a very long run for a podcast, particularly a podcast hosted by two busy lawyers. Thanks to all of our friends at the Legal Talk Network for supporting us and hosting our podcast. And a special thank you from me to my long-standing friend and ever-patient co-host, Sharon Nelson. I’m absolutely sure I would have never persisted this long without her. One thing I will miss about ending the podcast is I won’t have an excuse to talk to Sharon every month.

Listen the podcast: https://legaltalknetwork.com/podcasts/digital-edge/2023/11/tis-the-season-tech-toys-for-the-holidays-2023/

 

By Jim Calloway and Julie Bays

In August’s Law Practice Tips column, “ChatGPT, Artificial Intelligence and the Lawyer,”we covered the development of AI tools and some challenges they have presented to attorneys who did not appreciate the limitations of ChatGPT. This month, we will look at more AI-powered tools and techniques for using them.

DOCUMENT AND DEPOSITION SUMMARIES

One thing artificial intelligence does well is summarizing lengthy documents, such as depositions or long court opinions.

The Association of Immigration Lawyers of America (AILA) has been experimenting with powerful AI tools in their area of interest. A recent U.S. Supreme Court opinion, U.S. v. Texas, involved immigration law and was 75 pages long. Their tool quickly prepared a summary of the opinion, just over 14 pages in length. The summary is separated by page numbers in the original opinion so that if one had questions, it would be simple to read the page the summary was created from. Greg Siskind, an attorney in AILA, shared the summary, and I have placed it for download on Dropbox.

While many AI tools can create document summaries, browser-based tools are a good place to begin since they are free. But before we get to those, we should mention Claude.

 Claude

Claude is an advanced natural language chatbot with capabilities that seem superior to those of ChatGPT. It is available at no cost during its beta phase. What distinguishes Claude from other chatbots is several features that surpass those of ChatGPT, including the ability to analyze documents containing up to 75,000 words and understand and compare multiple documents. Claude’s database knowledge is updated through early 2023, and it supports multiple languages. The platform also demonstrates remarkable strengths in advanced reasoning and logic, as well as specialized academic knowledge.

BROWSER-BASED AI TOOLS

If one wants to have an AI-powered research (not legal research) tool, the best option may be the AI tools built into existing search engines. The lawyer will need to review and revise the settings to share as little of your prompt information as possible.

Google’s Bard

Google’s Bard is everyone’s favorite price – free. To use Bard, you need a personal Google account that you manage on your own or a Google Workspace account for which your administrator has enabled access to Bard. You still can’t access Bard with an account managed by Family Link or with a Google Workspace for Education account designated as under the age of 18. It can be accessed at https://bard.google.com.

Google’s Bard is listed as an experiment and readily admits to having limitations and learns from feedback. Bard is a conversational AI model capable of dialog, built on Google’s LaMDA (Language Model for Dialogue Applications). Be aware that Google collects conversations you have with Bard, along with your IP address, feedback and usage information. A subset of conversations is sent to trained reviewers and kept for three years, with automation tools to remove personally identifiable information. Google asks that you please not include information that could identify you or others in Bard conversations. To limit it from using your prompts, you can go to your Google My Activity page to toggle off storing your activity. You can also delete your activity from this page.

Bard’s data, unlike ChatGPT, comes from the internet. Crafting good prompts is a skill many of us will be trying to improve. Document summaries are one of the AI tools lawyers will use – a lot. There is a character limit for a Bard prompt. When prompted to summarize a 10,000-character article, it would only accept about 3,000 characters. However, you can obtain summaries of longer articles posted online by using the prompt “Summarize the article at [link to document].” These are generally quite accurate, but it is possible that AI may add its own “thoughts.” At least with document summaries, you will have the document handy for comparisons.

Bing Chat

The “new Bing” is a chatbot incorporated into the search engine. You may be logged in to a personal Microsoft account. The chatbot is also available in the Edge browser, the Edge mobile browser and the Windows 11 search bar. The new Bing screen prompts, “Ask me anything,” allowing up to 1,000 characters. You can run a regular web search or toggle Chat. Bing Chat works best with Microsoft Edge or the Bing mobile app. It is available at no additional cost to subscribers to Microsoft 365 E3, E5, Business Standard and Business Premium. And in the future, it will be available as a stand-alone offering for $5 per user per month.

Chat in Bing is developed on code from their partner, OpenAI. OpenAI powers ChatGPT. Bing, owned by Microsoft, acknowledges the same foibles as Google. You can review their approach to responsible AI.

Bing Chat has a few different elements that contrast with Bard. First, the user chooses a conversational style: more creative, more balanced or more precise. In Chat, you can add 2,000 characters, which is an increase from the regular Bing search. Instead of editing your prompt, you can continue to converse with Bing Chat by adding qualifying questions until you choose “New Topic.” The results for each type of search (creative, balanced or precise) are color coded so that it is easy to distinguish which mode is used.

Bing Chat also has a feature distinct from Google’s Bard. In the more creative mode, it will generate images powered by DALL-E. It has restrictions so that you cannot misuse certain images, like celebrities, public figures and organizations. For more information, see PC Mag’s review of Bing Chat.

DRAFTING TOOLS

Copy.ai

Copy.ai is not for legal writing, but it is a great tool for writing for a general audience, whether it is a blog post or website copy. There is a free version that is limited to writing 2,000 words per month. The Pro version costs $36 per month but licenses up to five users and includes priority tech support.

Spellbook

Spellbook is an AI contract drafting software trained on thousands of business contracts, as well as other data. I would encourage you to watch the four-minute video at www.spellbook.legal. In just a few short years, many, or perhaps most, contracts will be drafted using contract drafting tools. Spellbook’s website states it was trained on billions of lines of legal text. We saw this demonstrated at ABA TECHSHOW. It was amazing to watch as it proposed several contract provisions and allowed the lawyer to choose the one that was preferred.

VIDEO TRANSCRIPTION AND EDITING TOOLS

Descript           

Descript allows you to record a video or audio, and it will create a transcript of the words in the recording. One can then edit the audio by editing the text, and it will change the recording to reflect your changes. It will also automatically remove the “err” and “umm” sounds we often utter while recording.

Descript offers different plans to suit different needs and budgets. With the Free plan, you can record, transcribe, edit and mix up to one hour of content per month with filler word removal. With the Creator plan, you can access more features – such as overdub, screen record and publish – and transcribe up to 10 hours of content per month for $12 per month or $144 per year. With the Pro plan, you get advanced features, such as multitrack editing and advanced export options, and can transcribe up to 30 hours of content per month for $24 per month or $288 per year. If one desires custom invoicing, more flexibility, security or expedited support, you can also opt for an Enterprise plan by contacting the Descript team.

Julie Bays reviewed Descript for the ABA Law Practice Magazine.

PRESEASON MVP PICKS

CoCounsel and Copilot 

CoCounsel from Thomson Reuters and Copilot from Microsoft were covered in the first installment of this series. We note them here again just to say that we believe these will be the tools most likely to be adopted initially and broadly by lawyers.

CoCounsel, the legal research tool, was retailing for $500 per user per month. Even at that price point, we have heard many positive comments from satisfied customers as to how their legal research was improved by using this tool.

Copilot from Microsoft is coming soon and will use all your data in Microsoft files (e.g., Word, Excel, Outlook and PowerPoint). That will provide some amazing capabilities. Sharon Nelson and Jim Calloway recently recorded a Digital Edge podcast, “Microsoft’s Copilot: New AI Tools for Microsoft 365!” with Microsoft’s Ben Schorr. The day after they recorded their podcast, Microsoft announced pricing for Copilot at $30 per user per month on top of your Microsoft 365 subscription.

PROMPTS

In the AI world, your questions or queries are called prompts. These are sets of instructions we provide to AI chatbots to get them to perform a task. Multiple queries can sharpen the results, with each building on previous prompts.

On one level, prompts are very simple. Just ask the AI a question. But learning how to use prompts effectively is something that requires a great deal of research and some trial and error. If you are worried about the impact of AI on your future, invest some time in learning how to do prompts on your preferred tool well.

According to the Prompt Engineering Guide, elements of a prompt may contain any of the following elements:

  • Instruction – A specific task or instruction you want the model to perform
  • Context – External information or additional context that can steer the model to better responses
  • Input Data – The input or question that we are interested to find a response for
  • Output Indicator ­– The type or format of the output

In addition, your attention is directed to “Basics of Prompting,” also from the Prompt Engineering Guide site. This resource is well written with very basic language. For a deep dive into prompt engineering, see the primer from aman.ai. Dozens of similar resources are available online.

INTELLECTUAL PROPERTY ISSUES

It is worthwhile to note that ChatGPT and other generative AI tools present many intellectual property issues. If you create something useful with AI, can it be copyrighted? According to the courts and the U.S. Copyright Office, the answer is no. But you can modify the AI-created content sufficiently to claim it as your own and copyright it. That sounds like there will be many factual questions involved.

One entertaining AI activity is to create images for entertainment. So you could upload pictures of a relative, and it will generate their portrait as if painted by Picasso, Van Gogh or Rembrandt. Harmless fun. That is, until a well-known living American artist shows up at the lawyer’s office complaining of a huge drop in sales since the release of these AI tools and that six of the top 10 Google searches for her work are now AI-generated images in the style of her work. Authors may feel it is inappropriate that the online versions of their books were used to train the AI. There have already been suits filed by creators claiming the AI training violates their rights.

A recent Digital Edge podcast, “Generative AI and Copyright: Collision is Inevitable,” featured Vedia Jones-Richardson, a principal with Olive & Olive PA, a North Carolina-based intellectual property law firm, where she leads the trademark and copyright practice group.

CONCLUSION

ChatGPT and other LLM (large language model) AIs are easy and fun to use. That is how they became so popular so quickly. Despite some lawyers’ well-reported stumbles with initial uses of ChatGPT, most lawyers will use AI tools because they are powerful and accomplish tasks in minutes that would take a human hours or days. Now we are at the “good time to experiment” stage. It is time to give some of these tools a try.

And if we haven’t provided you with enough reading material in this column, let’s close by directing you to a post from author and legal futurist Richard Susskind, who is well known for his observations on the future of law practices and the legal system, “AI in the law – six thoughts.”

Authors’ Note: Thanks to Catherine Reach, director of the Center for Practice Management at the North Carolina Bar Association, for her contributions to this column. 

Mr. Calloway is the OBA Management Assistance Program Director.

Ms. Bays is the OBA Practice Management Advisor, aiding attorneys in using technology and other tools to efficiently manage their offices.

Originally published in the Oklahoma Bar Journal — September, 2023

Technology innovations and artificial intelligence tools have generated much discussion this year. There have been many truly amazing uses for AI demonstrated and many of the tools we currently use are now adding AI components. This is a perfect time to attend ABA TECHSHOW 2024, scheduled February 14-17, 2024, at the Hyatt Regency Chicago. The Oklahoma Bar Association Event Promoter code is: EP2403. This allows Oklahoma lawyers to register at the discounted ABA membership rate, if they do so before January 11, 2024. OBA Practice Management Advisor Julie Bays and I will be on the faculty. Whether your questions involve traditional legal tech implementations or the new cutting-edge tools, this is an outstanding opportunity to attend a meeting with many legal tech experts and technology solution providers.

Register on the ABA TECHSHOW website.

 

In private practice, I was threatened several times, always related to domestic and protective order cases. I didn’t consider any of them serious and took no action. But that was decades ago. Today we need to appreciate that threats must be taken seriously. Have you had a conversation with all of the people who work with you on how to handle these threats?

This week you can handle this more easily because Theda C. Snyder and Attorney@Work recently published Specific Steps to Take If You Receive a Threat. The piece is well-written and comprehensive. I suggest you share the link with everyone in your office, give them a deadline to complete reading it and then schedule a meeting to discuss their reactions. You may learn some things you did not know about past threats.

Technology advances change many things. A few decades ago, most lawyers would likely have rejected the idea that it would ever be a good idea to record a conversation between an attorney and a client. There would have been numerous philosophical objections and practical

objections, including the cost to transcribe the recordings. Many readers, no doubt, would still agree with that.

But today’s artificial intelligence tools allow affordable recordings and transcriptions. Transcripts could have many uses. If a client seems confused about a recent consultation, how handy would it be to upload a transcript of the consultation to the client portal so the client could review it without incurring more fees? Or how nice would it be to have a transcript of your interviews with critical witnesses? No doubt many lawyers dealing with Office of General Counsel investigations have likely wished they had transcripts of certain meetings.

Whether you think this is a good idea or a crazy one, read “Can Lawyers Legally and Ethically Record Conversations with Clients Using Artificial Intelligence?” by Carolyn Elefant. Ms. Elefant has been dispensing advice to small firm lawyers for decades via her My Shingle website. Her step-by-step approach to this subject is a great example of how to analyze these issues, including the ones relating to client consent

“Lawyers have hated passwords since passwords first made their appearance,” some of my colleagues recently wrote. So true.

Emerging AI tools mean it is easier to crack passwords. So, the standard advice for strong passwords is now at least 15 characters, with requirements of upper-case and lower-case letters, numbers, symbols and maybe a drop of blood (OK, not really.) The challenge is most of us cannot remember that long of a string of random characters and creating passwords we can remember, typically by inserting dictionary words within them, makes them easier to crack. From my point of view, the only rational solution is a password manager. The good thing about password management is that as you get more login credentials saved, you benefit from quicker logins.

Many of us who follow technology have turned against the previously popular tool LastPass. Not only did they suffer a major breach last fall, but their messaging in its wake was misleading at best with the major disclosures not released until the Christmas holidays. I switched to 1Password. PC Magazine highly ranks Dashland and Bitwarden in its best password managers of 2023 roundup.

Accounts that can access your financial information or client information should be secured with two-factor authentication. The most common way of doing this is a text message confirmation code is sent to your phone that must be entered to complete your login. Many password managers also support two-factor authentication.

My podcast teammate Sharon Nelson and two of her colleagues wrote about the next step in login security in their post Passwords May Be Extinct Sooner Than You Think. They note that thanks to passkeys, the days of passwords will soon be numbered. Ironically that probably will not eliminate password managers as they evolve to managing some passkeys and some remaining passwords because some sites that haven’t upgraded their login yet.

Additional reading: Why passkeys from Apple, Google, Microsoft may soon replace your passwords CNBC.

This month the Oklahoma Bar Association Journal has a legal ethics themed issue. We believe in sharing with others in the profession. So you can access the entire issue as a PDF or use the handy index of the Table of Contents to select the articles you wish to read online. https://www.okbar.org/barjournal/august-2023/  Two of the articles cover AI and ChatGPT.

There is also a heartwarming story about one young lady and her life-changing experience of support from a CASA volunteer.

In November 2022, OpenAI released ChatGPT. ChatGPT, along with other artificial intelligence (AI) tools, has dominated the conversation about cutting-edge technology and legal technology tools during 2023. The reactions have ranged from “the most entertaining thing on the internet” to an incredible new tool that will change society in a positive way to a corporate tool that will allow companies to be more efficient and profitable (often by a reduction in workforce) to a potentially dangerous development, that if allowed to expand unchecked without regulatory safeguards, could lead to global instability and, possibly, an extinction event.

To summarize, on the internet hyperbole scale, predictions about ChatGPT’s impact range from Nirvana to Armageddon. Whatever happens will likely be between these two extremes.

ChatGPT is a large language model (LLM) AI. This means its training involved digesting almost everything on the internet, including Wikipedia and many books, as of September 2021. An often-used cliche among programmers is GIGO (garbage in, garbage out), and it cannot be disputed that there was a fair amount of garbage on the internet by 2021. ChatGPT is aware of the current date based on the date and time stamp of your query, and it sometimes refers to events that took place post-September 2021, possibly based on others’ queries. Unanswered questions and apparent inconsistencies such as these are why many IT professionals call ChatGPT a “black box.”

Since the November 2022 introduction, there have been many new products incorporating ChatGPT. It set a record by amassing 100 million monthly active users within two months (for comparison purposes, TikTok required nine months and Instagram more than two years to reach that mark). This reaction was caused by how well the product performed. It is simply stunning. Interacting with a chatbot that chats with you conversationally like another human and has vast amounts of accurate data to use is impressive. The speed and clarity of its responses are amazing. 

OF COURSE, THERE ARE LIES AND HALLUCINATIONS

ChatGPT displays many human-like traits. Not only will it answer your questions easily and quickly, but, like a human friend, it may sometimes tell you what you want to hear, and sometimes it may share outright fabrications (called hallucinations). Just like a human, it might slip and share something you didn’t intend to be shared.

ChatGPT’s responses are very confident and persuasive. As Ed Walters, co-founder of Fastcase who also taught “The Law of Robots” at Georgetown University Law Center, says, “The answers are often totally wrong, but highly convincing.”

Some lawyers will learn of that credibility issue and decide never to use ChatGPT or any other AI. That is probably not the correct lesson, as AI tools will be increasingly hard to avoid and will provide many time-saving benefits in the very near future.

There are many positive ways that these tools can be used today, and there will be hundreds more. For example, you are traveling with your family, and an automobile breakdown strands you for the day in a city you never intended to visit. A quick query on the ChatGPT app on your phone for the top 10 things to do in that city will produce a detailed list with descriptions. It is probably quite accurate. But if not, so what? The point isn’t whether some experienced, objective human travel expert might disagree with some suggestions. The point is receiving a list with useful information you didn’t have in seconds.

I have Google, DuckDuckGo and ChatGPT installed on my phone. I use Google and DuckDuckGo when I want an answer, a location or some other basic information. But if I want an explanation, ChatGPT is the first option for a search.

I also note that OpenAI has provided a fix for the concern of “your friend” sharing information about your queries. There is a setting to prevent your ChatGPT queries from being further used to train the system. Once lawyers start to do research for client matters, they will probably want to enable that setting – not because it’s likely information would be compromised, but just because we don’t understand everything, and it is the safer course of action. 

SO WHY HALLUCINATIONS?

The large language model AIs certainly appear to understand your queries and provide logical responses. Professor Kenton Brice, director of the Donald E. Pray Law Library at the OU College of Law, had a helpful analogy at our OBA Solo & Small Firm Conference program on ChatGPT and AI. He said to think of the game Mad Libs.™ The AI does not understand the meaning of its communication with you. To use Professor Brice’s analogy, if the AI is completing the sentence “A cat is ___,” there are many possible word choices to complete the sentence. A cat is a mammal. A cat is black. A cat is a feline. The AI chooses based on its ingestion of hundreds of millions of online pages and the context of the query or discussion. The surprising thing is how often it selects the perfect word or phrase. The remarkable thing is not that it gets things wrong, but that it mostly gets things right. But since it doesn’t understand truth or falsity, it doesn’t apply those values, just probabilities.

Of course, “mostly correct” is not an appropriate standard for lawyers when working for clients. When you use ChatGPT for drafting, consider its output a first draft that needs your careful editing. But legal research tools with appropriate AI tools are being introduced into the market, as discussed below. 

A CAUTIONARY TALE OF POTENTIAL MALPRACTICE AND SANCTIONS FROM POOR USE OF CHATGPT

Steven Schwartz, a practicing New York lawyer for 30 years, used ChatGPT to prepare a brief for federal court. Mr. Schwartz found cases with citations that supported his client’s rather unorthodox claim. At least six cases he cited in a brief as filed were hallucinations that did not exist, with fictitious quotes and internal citations. When the brief was filed, the fact that ChatGPT could hallucinate cases (including fabricated quotes from the cases) was well known within the legal technology community, but certainly not all lawyers were aware of this.

Opposing counsel filed a response brief calling out the bogus cases and moving for sanctions. Mr. Schwartz, disregarding that the opposing counsel’s filing presented a huge red flag, went back to ChatGPT to confirm that the cited law was correct. “I apologize for the confusion earlier,” ChatGPT replied. “Upon double-checking, I found the case Varghese v. China Southern Airlines Co. Ltd., 925 F.3d 1339 (11th Cir. 2019), does indeed exist and can be found on legal research databases such as Westlaw and LexisNexis. I apologize for any inconvenience or confusion my earlier responses may have caused.”

The lawyer filed a response reaffirming the opinions represented good law without locating or reading the actual opinions. Apparently, the lawyer’s only legal research tool was Fastcase, with a limited New York law-only package. As we all appreciate, the answer was to find another source for the cases. Instead, he “doubled down” and instantly became an internet meme. At the sanctions hearing, Mr. Schwartz was sworn to testify truthfully and then spent two hours being grilled by the judge. While ChatGPT made the national headlines, Mr. Schwartz could not avoid the simple fact that he cited as authority case law he had not read. It had to have been one of the most unpleasant experiences of his legal career. He noted that he had suffered great personal damage from his error. The court granted an award of sanctions for $5,000. But, no doubt, the two-hour examination was also punishment.

This situation has prompted a few federal judges to issue standing orders requiring counsel to submit affidavits that they either did not use AI in preparation of the brief or, if they did, a human checked the AI’s work. Some have observed that any potential problem is already addressed by Rule 11.[i] 

CASETEXT TO COCOUNSEL TO THOMSON REUTERS

Casetext has provided AI-powered legal research for some time. Their basic service is a discounted OBA member benefit. Casetext also worked with OpenAI to incorporate advanced functions of ChatGPT into a new offering.

On March 1, as ABA TECHSHOW was beginning, we learned via social media that a national cable news network hosted the product launch for Casetext’s new offering, CoCounsel, an AI-powered legal research tool. Free trials were only for a short period. The results were so stunning that many lawyers immediately subscribed at the rate of $500 per user per month, including many lawyers who would have said that they would not have subscribed at that price point. Casetext gained access to ChatGPT in 2022. The result was quite a success.

On June 26, it was announced that Thomson Reuters agreed to purchase Casetext for $650 million cash.[ii] I hope Thomson Reuters will offer a pricing plan affordable to small firm lawyers and not just focus on larger law firm pricing. 

ARE AI AND CHATGPT REALLY THAT SIGNIFICANT?

The easy answer here is yes. Smart, serious people have referred to it as being as significant as the discovery of fire, the invention of movable type or the internet itself.[iii]

I’ve done many presentations about the future of law across the country over the years. One of the keys to future law firm success will be to automate as much as possible. Creating automated templates is time-consuming. AI tools will make it less so, and some have reached the market. Did I mention that ChatGPT can also write computer code? That is scary for the programmers of the world. My prediction is the business world will be transformed by generative AI over a few years. And if corporate business practices change, the law businesses will also change.

Next month, I will cover several popular AI tools and provide some tips on using AI appropriately.

[1] SeeJudicial Treatment of ChatGPT: Throwing the Baby Out with the Bath?” by lawyer-blogger Stephen Embry.

[ii] See LawSites’ blog post, “The Rumors Were True: Thomson Reuters Acquires Casetext for $650M Cash.”

[iii] Noted legal futurist Richard Susskind shares his thoughts about AI and the legal profession in his LinkedIn post “AI in the law – six thoughts.”  He has studied the impact of AI on lawyers for decades, and he deems these developments very significant. Andrew M. Perlman, dean and professor of law at Suffolk University, stated, “ChatGPT suggests an imminent reimagination of how we access and create information, obtain legal and other services, and prepare people for their careers.” In “The Implications of ChatGPT for Legal Services ad Society.”

Originally published in the Oklahoma Bar Journal — August, 2023 — Vol. 94, No. 6