The Bright Legal Future - Washington State Bar News

COLUMN > Innovation in Law

BY JORDAN L. COUCH

Introduction

Even the casual reader may be sick of hearing about AI these days, as I myself often am. The current technology is overhyped, its environmental impact is underappreciated, and its potential for misuse is not sufficiently understood by leaders within our justice system and beyond. But the technology is here—it is the most expensive it will ever be, the most resource-intensive it will ever be, and the least valuable it will ever be.

As history has shown us time and again, the future is coming and we stand at a fork in the road; we can fight AI and fail, we can delay and lose control of it, or we can embrace it to help improve the justice system for all. I choose to believe in the power of technology. And I want to share with you a vision of what can be: a vision of more people having access to help with their legal problems, of courts being more accessible and less overburdened, and of lawyers enjoying their work more and making more money while working less. All of this is possible. This article contains a blueprint for how we can build that future together. We will begin with a brief explanation of the current state of AI, then discuss its potential impact on consumers, courts, and lawyers. For each stakeholder we’ll discuss the status quo, the future, and the steps we must take to get there.

Before we get started, I should issue a reminder that before using any AI tools in your legal practice, you should review the ethical considerations and RPCs related to AI. Two good places to start are Bar News columnist Mark Fucile’s articles, “The Chatbot Made Me Do It!”¹ (November 2023) and “Good Help: Non-Lawyer Assistants—Human and Virtual” (July 2024).²

The Current State of AI

AI has existed in various forms since at least World War II. Recent years have brought a new generation of advanced AI. For example, generative AI, which generates content based on probabilistic outputs, and agentic AI, which attempts to replicate a reasoning approach to answering questions.

In this article I will refer to these modern forms of AI just generally as AI. As noted in the introduction, the current state of these programs is that they are generally expensive, environmentally costly, and not as useful as people often claim. For example, in the legal context, there have been more than 150 cases already litigated globally where AI (being used by both lawyers and pro se litigants) has produced hallucinated content in court documents—usually fake citations but also misrepresented precedents and misattributed quotations.³

That said, AI is improving almost daily. Whatever doubts you have about AI currently, remember that this is the least effective and most expensive this technology will ever be.

Throughout this article, I recommend using AI. If you are concerned about the environmental impacts, a helpful rule of thumb is that it is estimated that an AI query uses about five times more electricity than a normal Google search (for now). Ask yourself if this AI query can accomplish as much for you as five Google searches or more. Often the answer will be yes. Regardless, we as lawyers have an obligation to begin experimenting with AI. These tools are showing up in courtrooms and in the lives of our clients. RPC 1.1 requires us to have at least a basic understanding of the technology.

The People

The Status Quo

Despite viewing ourselves as the only provider of legal services, lawyers are rarely involved in the everyday legal problems of consumers. According to the last Washington Civil Legal Needs Study, 76 percent of consumers in Washington with legal needs did not get legal help.⁴ For low-income Americans, the Legal Services Corporation reported that 92 percent of civil legal needs were not being adequately addressed.⁵ In a study from the Institute for the Advancement of the American Legal System (IAALS), 66 percent of Americans experienced a legal issue within the last four years and yet only 49 percent of those problems had been completely resolved.⁶

The vast majority of consumers are navigating the justice system by themselves and it’s not going well. For those without attorneys, access to legal information is mostly derived from online platforms like Google, and law firm or legal aid websites. These sources often fall short in terms of accuracy, clarity, and the speed it takes consumers to find information. Even when these sources do provide helpful background information, they likely fail to provide detailed guidance, and they don’t help with the drafting of documents.

How AI Can Help

AI is like Google but better. Consumers who might struggle to find the right information in a web search, can instead ask an AI model plain-language questions and get plain-language responses. AI can also help consumers draft and improve motions and briefs, thereby moving them through court processes more quickly and less expensively. It can also help consumers feel like they had a fairer shake because they had assistance in presenting their arguments. This latter help cannot be understated in its importance. In her book, The Power of Dignity, Judge Victoria Pratt defines justice as a process in which parties feel they have been treated with respect and dignity. The more and better help a litigant can have, the more they will feel treated with respect and dignity by the process.

Getting There

To achieve this future, we must encourage education on AI and its use in courts. Litigants should be encouraged to use AI tools, even live in the courtroom, where they can demonstrate an understanding of it and use it with discretion.

We need to encourage the development of tools for self-represented individuals and pro bono clinics. One example is Querious, an AI tool that can listen to meetings between intake staff and clients at pro bono clinics and identify legal issues, triage those issues, and make intake faster, more efficient, and less costly—particularly important for organizations like pro bono clinics where budgets are tight. Traffic court could serve as a testing ground for individuals who struggle with anxiety and public speaking. Litigants could use AI assistants to help or speak for them. Wherever possible, we should support access to AI tools in law libraries and for court clerks who help pro se litigants. Lastly, we must continue to ensure that legal information (cases, statutes, etc.) is publicly accessible and free so that the AI tools consumers use will have access to accurate legal information that is as unbiased as possible.

The Courts

The Status Quo

From 2023-2024, filings of civil cases in U.S. district courts increased by 22 percent.⁷ Access to judges in our current system is an expensive and time-consuming service that our governments must provide. But things are not set to get better in our current system.

Pro se litigants who lack an understanding of how to communicate their legal issues and the procedures to be followed can slow down the processing of cases. Judges and clerks spend a substantial amount of time researching legal issues and writing memos and briefs. Beyond the time and financial strains on our judiciary, AI-generated evidence (both demonstrative visuals and falsified evidence), is beginning to appear in court proceedings, and our judges lack the support to easily address the issues AI creates in their cases. These evidentiary issues will similarly slow court proceedings. I’m reminded of a protection order case I worked on in law school in which I had to bring my laptop and flash drives (and explain what a flash drive was to the judge) to present video evidence in court. That was 10 years ago. AI-generated evidence will be a substantially bigger disruption to normal court evidentiary proceedings.

How AI Can Help

In its simplest form, AI can help judges and their clerks do legal research faster. I say “research,” because judges should absolutely not use AI to write opinions. The risks are too great. However, I can say from personal experience that AI research tools like Vincent AI can turn a three-hour legal research project into a 30-minute research project. Adopting these tools will give judges and their clerks more time to work on other projects. When I clerked in a federal court one summer, I remember it took about a month from when a case was received to writing an opinion. With AI we could shrink that time substantially. Further, with access to a judge being the primary bottleneck in court proceedings, AI can also help mediate issues before they need to go before a judge. Finally, for the cases that do go before a judge and jury, AI can be used to improve the demonstrative exhibits presented to jurors making the decision process easier in much the same way as accident recreations and other graphics are already being used in some cases. Many of these opportunities will also reduce the costs of court cases, increasing access to justice.

Getting There

Getting there will require some not insignificant, but certainly possible changes to our court systems. To begin the process, there are some easy things we can start doing now. First, judges should be given access to vetted AI legal research tools within our existing trusted platforms like vLex, LexisNexis, or Westlaw. This gives judges a safe way to begin using AI in their work for traditional research. Chatbots can also provide a safe place to bounce ideas as they might with a summer clerk.

Beyond that, judges should be encouraged to experiment with AI in their personal lives: planning vacations, designing recipes, and creating unique holiday or birthday cards with image generators. The more familiar judges are with this technology, the better they will be prepared to address it when it comes up in the courtroom. As stated above, judges should not be using AI to draft opinions. Judge Scott Schlegel, one of the biggest AI advocates on the bench, is always quick to remind judges that if an attorney or a party screws up a filing, they can often refile. Judges can’t redo an order just because they realize a month later the AI got something wrong.

We as attorneys have a direct role to play as well. Because we have the skills and training to protect our clients if a new tool has glitches, we should be the guinea pigs who start testing out AI mediation and dispute-resolution tools. Bot Mediation is one tool that launched recently and has the potential to be really useful. This sort of technology isn’t new. Even before AI, eBay started using Modria over a decade ago to resolve disputes online without requiring human oversight. AI is set to take that same concept and improve on it drastically. If attorneys test out these products and find ones that are useful, safe, and effective, we can support the courts in either making these tools available to pro se litigants, or by at least encouraging their use. Even better, more accessible dispute resolution means less work required by judges.

The Lawyers

The Status Quo

There is something economists call cost disease: a steady rise in the cost of services caused by wage growth without a corresponding increase in productivity. Law is a service, and especially among those who serve individuals, the effects of cost disease are being felt. As lawyer hourly rates go up, individuals are spending less on legal services.⁸ Lawyers are working more hours and making less money.

Even in the realm of contingency work where “prices” (the percent of settlement taken as a fee) have remained flat, we see a decline in people choosing to spend money on legal services. From 2019 to 2024 the number of self-declared attorneys practicing workers’ compensation in Washington increased by almost 30 percent. During that same time period, the number of injured workers who were represented declined by almost 30 percent.⁹ The data suggests that fewer people are turning to lawyers because of rising and unclear costs. Most lawyers still bill by the hour despite clients preferring other billing methods. Our system isn’t working for anyone, and yet it persists.

The Future

At a recent talk I gave on AI, a lawyer commented that my recommendation to use an AI legal research tool was a tough sell: “You’re asking lawyers to pay more for a tool that will decrease their billable hours.”

She wasn’t wrong. According to Clio’s 2024 Legal Trends Report, current AI technology has the capacity to automate 57 percent of the work lawyers do, 69 percent of the work paralegals do, and 81 percent of the work legal assistants do.¹⁰ Even if we imagine these numbers are off by a large margin, this technology will have a profound impact on our profession. The transfer from physical books to online legal research will look like a blip.

This could be cause for concern for those who don’t want to use AI or those who will use it but won’t change their practice. But it can also be the most exciting news you’ve heard in decades. If AI can help you do more work faster, your services can become less expensive, and demand will rise. For lawyers willing to adapt, the future is having the freedom to focus on your most creative work while offering better services to more clients and making more money while working fewer hours.

Getting There

We need to embrace AI as a tool to help us. Approach your daily tasks by asking, “How could AI help me do this?” That could mean accessing the LexisNexis AI assistant or using an AI chatbot to ask for highly rated hotels near an upcoming conference. The more familiarity with the tools you have, the more adaptable you will be. Second, we have to change the way we deliver legal services. Instead of billing by the hour we need to consider shifting to value-based billing. If you bill in flat fees or subscriptions, then finding efficiencies through AI allows you to make more money and bill your clients less. Finally, as I’ve said in articles and CLEs many times before, we have to offer new versions of legal services. Create a chatbot to give more cost-efficient help to your clients. Offer limited legal services by reviewing work completed by a specialized AI tool for your clients. The opportunities are boundless.

Conclusion

In his book The AI-Driven Leader, Geoff Woods implores firm leaders to “create a culture that focuses on skill development” so that their employees can create jobs of the future rather than be driven into obsolescence. My hope in writing this article is in part to help create that culture in our profession. We should be the ones who decide what the delivery of legal services looks like when it is assisted by AI so that we can maximize our potential to serve our clients and avoid falling into obsolescence. The WSBA Legal Technology Task Force11 www.wsba.org/connect-serve/committees-boards-other-groups/legal-technology-task-force. recently issued a technology survey report that delves into some of these issues, and the task force will compile a final report with further guidance for the Board of Governors by August. In the meantime there are lots of easy ways you can begin exploring. Ask ChatGPT to plan your next vacation. Search for a dinner recipe that encompasses different dietary restrictions of each member of your family or that uses only items you have in your fridge already. If you are using a tool at work that has a built-in AI (like Microsoft Copilot) try asking it how it can help you. Or maybe just do a trial run of upgrading your legal research tool. The future is coming. We can fight it and be crushed by it, we can delay it and lose control, or we can embrace it and build a brighter future. The choice is yours. I’ll be here to help.

About the author

Jordan L. Couch is a partner at Palace Law. Outside of his practice, Couch is heavily involved in state, local, and national bar associations, advocating for a better, more client-centric future to the legal profession. Contact him at:

jordan@palacelaw.com

NOTES

1. https://wabarnews.org/2023/11/16/the-chatbot-made-me-do-it/.

2. https://wabarnews.org/2024/07/10/good-help-non-lawyer-assistants-human-and-virtual/.

3. Damien Charlotin, “AI Hallucination Cases,” available at www.damiencharlotin.com/hallucinations/.

4. www.courts.wa.gov/disability-justice-task-force/public/OCLA-2015-Civil-Legal-Needs-Study-Update.pdf.

5. https://justicegap.lsc.gov/.

6. https://iaals.du.edu/projects/us-justice-needs.

7. www.uscourts.gov/data-news/reports/statistical-reports/federal-judicial-caseload-statistics/federal-judicial-caseload-statistics-2024.

8. www.legalevolution.org/2020/07/weve-got-a-bad-case-of-baumols-cost-disease-184/.

9. Data collected by author through public records requests to the Department of Labor and Industries in 2019 and 2024.

10. www.clio.com/resources/legal-trends/2024-report/.