“Stop the presses!” At least that’s what newspaper people used to say when holding up those presses for a late-breaking news story. Does anyone say that any more? I wonder. I also wonder about how gullible journalists are these days in relying upon the “magic” of ChatGPT.
All of a sudden, journalists (and I was one of them before I went to law school) are realizing that AI stands for artificial intelligence and not human intelligence, even though the latter is not certainly not always better. Journalists seem to be now awakening to the realization that AI is not necessarily all it’s cracked up to be, especially in the legal realm. Sanctions, suspensions, and being a laughingstock among our peers seem to be on the increase.
How many errors is it going to take before reliance claims hit the courthouse steps, becoming fodder for litigation, as in “ChatGPT made me do it?” As a Stanford University report points out, legal hallucinations are not just one-offs, and the more complex the inquiry, the greater the tendency to hallucinate. (Shades of the ’60s and psychedelics and, no, I never dropped acid.)
A number of lawyers have found out, to their personal chagrin, delegating chores to ChatGPT without close supervision can be a recipe for discipline and professional embarrassment. As we were all told in law school and early in our careers, all we have is our reputations, which can be lost in a flash.
One of the issues that I think every lawyer faces with clients is the issue of ambiguity, and right now ChatGPT is only adding to that ambiguity. The client wants answers: yes or no, up or down. And the client grows exasperated when the lawyer appears to be dithering, unwilling to have her answer set in concrete so that the client can either sleep more easily or toss and turn at night. While we talk about the concept of precedent (at least we used to talk about the concept of precedent) and explain how courts used to follow precedent (although not so much any more), we are even more reluctant to opine confidently. Clients see us as often wishy-washy, but that’s not our intention. I think we’d all like to be more certain of our opinions, but that’s not the way the world is today. So, it’s harder to manage client expectations about results. Flip a coin, cover your bets, keep your fingers crossed. What does the Magic 8-Ball say? The Ouija board? Are you feeling lucky?
There’s always been uncertainty in law, even with all the precedents before us. A renegade jury that uses nullification to justify its verdict, a rogue judge whose ruling kicks stare decisis to the curb. How can clients have any confidence in the rule of law and that stare decisis still means what it has for centuries?
There’s one trait that lawyers must have and it has nothing to do with GPAs, LSATs, class standings, or any other numerical measurement. Lawyers have to be comfortable with ambiguity, especially nowadays. Ambiguity permeates everything we do. How will the court look at this case? How will it rule on the motion? How will the witnesses appear to the jury? Will they be believed? What about the trial lawyers? What will the jury think about them? What about the court’s rulings? Sufficient evidence to support the verdict? Did the jury follow the instructions or decide on instinct? Any Googling of information despite the court’s strict admonition not to?
But it’s not just in litigation. Drafting documents — any kind of agreement — can also be full of “traps for the unwary.” Remember that phrase from law school? A property description in a deed of trust (mortgage for you lawyers outside California) can create ambiguity if it’s not letter perfect in following the legal description. Even a misplaced comma can be costly if it creates ambiguity.
This year will be full of ambiguities (and I am not referring to the national election), but that’s not necessarily a bad thing. Uncertainty is not all bad. Tolerating uncertainty and ambiguity is actually good for mental health (I know it sounds counterintuitive), but knowing that the world is unpredictable, that the case you thought you’d lose, you won, and vice versa, actually strengthens your ability to cope with the unexpected, and if that’s not a definition of law practice, then what is?
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at firstname.lastname@example.org.