As evidenced by yet another fake citations case, while lawyers may be slow to embrace technology, GenAI is the flip side of that.

People have been talking about the inability for lawyers to embrace technology for as long as there has been relevant technology to embrace. And it’s easy to find stats to back up that contention, like this one from last year’s ILTA Technology Survey:

54% of respondents said that the biggest hurdle to adopting or making use of emerging technologies was resistance to change among the users.

That’s probably not surprising to you.

From an eDiscovery standpoint, you all have been saying it for five years in the annual State of the Industry report, including this year. For five years now, you’ve been talking about NOT talking about Lack of eDiscovery Competence within the Legal Profession as the challenge we most need to talk about (that’s easier to write than say, btw). This year, it was the top choice among 551 respondents even with new choices added into the question like rising costs for eDiscovery, lack of access to justice, lack of cooperation between parties and more. While “eDiscovery competence” is about more than just technology competence, some level of technology competence is integral to understanding eDiscovery.

The speed at which the legal industry adopted technology assisted review (TAR) is an example of how “the struggle is real”. More than twelve years after Judge Andrew J. Peck issued the first ruling that approved the use of TAR in Da Silva Moore, we saw a case last year where the parties disputed the use of TAR and the Court sided with the plaintiffs, ruling that there must be a “good faith attempt to produce from the search term protocol” before defendants could consider using TAR. Sigh.

Other than when something monumental forces lawyers to learn technology rapidly (as they had to do in learning Zoom when the pandemic hit), lawyers have been historically slow to adopt technology. Nobody would argue with that.

GenAI is the flip side of that, or at least it appears to be. We continue to see lawyers submit case filings with fabricated case citations generated by GenAI – with such frequency that it’s almost no longer news anymore. I say “almost” because I’ve seen three stories related to the issue in the past week – two from Bob Ambrogi (including this one & this ruling that Bob found related to last year’s Iovino case, where the Court declined to sanction the lawyer in that case after he “owned the mistake”) and this one forwarded to me by Brett Burney that David Slarskey covered on LinkedIn, where the judge compared GenAI to a chain saw in terms of how a tool can become dangerous when not used properly.

Last year (almost to the day), I pointed out that there are 1.3 million lawyers in the US and, even if we get the word about this problem out to 99.9 percent of lawyers out there and only 10% of the 0.1 percent of the remaining attorneys are submitting filings, that’s still 133 lawyers who might submit filings with fake case citations. That’s beginning to look like a “lowball” estimate.

GenAI is the flip side of lawyers being slow to adopt technology. Many of them are jumping into using GenAI tools like ChatGPT and they are even excited about using it! “It’s so easy to use!”, they say, and “it can do so many things!” But many still don’t seem to understand the downsides of the technology – especially their tendency to hallucinate (sometimes often). They treat the new GenAI tools as though they are a “Staples-easy button” without understanding that they are not and they require validation just like any other information retrieval method.

The saying goes that “fools rush in where angels fear to tread”. The latter part of that phrase has eDiscovery significance: In 2008, Judge John M. Facciola stated in United States v. O’Keefe (regarding resolving a search term dispute) that “for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.” That statement has been referenced in other cases, including this case I covered in 2020 (that same judge decided to go where angels fear to tread just a month later and rule on a search term dispute by ordering “evidently relevant” terms that were less than optimal).

As with AI, many lawyers have rushed into keyword searching over the years without knowing how to do it properly (as demonstrated in two of many examples here and here). Yet, many accept that lawyers do understand keyword search (which is why we don’t see the same transparency requirement for it as we do for TAR).

We have been bemoaning the fact that lawyers aren’t embracing technology and wishing they would. But GenAI is the flip side to that – many lawyers are embracing it…without understanding what they’re embracing. Embracing technology without understanding how to properly use it may be worse than not embracing it at all. Be careful what you wish for!

So, what do you think? Do you think we’ll ever stop seeing stories of lawyers submitting case filings with fake case citations? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using GPT-4o’s Image Creator Powered by DALL-E, using the term “robot chef flipping a pancake that has the word ‘embrace’ on one side”.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.