The Intersection of Generative AI and the Legal Profession with Niki Black

Surveys abound on artificial intelligence and the law – many of them by companies bringing the technology into their products for attorneys. 

One survey says three quarters of lawyers expect AI to be integrated into their legal practices in the near term. Half say they expect it will boost productivity, half feel it will be transformative, while  nine out of ten attorneys expressed concerns about artificial intelligence applications and attendant ethical issues.  

In an article she wrote for Above the Law, you’re going to hear even more about generative artificial intelligence in the coming months, “especially” she says, “as legal technology companies ramp up their generative ai releases.” She forecasts “a rapid, exponential uptick in the number of new GAI tools for legal professionals.” And, as she reminded me, litigators have an ethical duty of technology competence.  

Nicole "Niki" Black is a Rochester, New York-based attorney, author and journalist, and is senior director of subject matter expertise and external education at MyCase, a company that offers legal practice management software for small firms. She is the nationally recognized author of cloud computing for lawyers and is co-author of social media for lawyers: the next frontier, both published by the American Bar Association. She writes regular columns for abajournal.com and Above the Law; has authored hundreds of articles for other publications; and regularly speaks at conferences regarding the intersection of law and emerging technologies. Nicole earned her J.D. from Albany Law School.

Listen as I interview, first, Google Gemini fka Bard, for fun, then our real-life human attorney guest, about the current state and future of generative artificial intelligence and the practice of law.
 

Tom Hagy
Host
Emerging Litigation Podcast

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This podcast is the audio companion to the Journal of Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the vLex Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm.

If you have comments, ideas, or wish to participate, please drop me a note at Editor@LitigationConferences.com.

Tom Hagy
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Transcript

Tom Hagy: 0:01

Welcome to the Emerging Litigation Podcast. This is a group project driven by HB Litigation, now part of critical legal content and VLex Company's Fast Case and Law Street Media. I'm your host, tom Hage, longtime Litigation News editor and publisher and current Litigation enthusiast. If you wish to reach me, please check the appropriate links in the show notes. This podcast is also a companion to the Journal of Emerging Issues and Litigation, for which I serve as editor-in-chief, published by Fast Case Full Court Press. Now here's today's episode. If you like what you hear, please give us a rating. So today we're going to talk about artificial intelligence. That's right. We're taking another run at AI and the law, and I took a beat to ask Google Gemini or used to be called Google Bard that's AI chatbot what it thought about how lawyers are embracing artificial intelligence.

Gemini: 1:01

It's not a universal love story.

Tom Hagy: 1:04

See how it went right to a human emotion. I feel manipulated. Already. It's trying to relate to me, so I don't trust it.

Gemini: 1:13

But AI is definitely a helpful colleague for many lawyers.

Tom Hagy: 1:16

See, colleague, that's a relationship. I asked it what good it does for lawyers.

Gemini: 1:21

AI frees up a lot of time consuming tasks like legal research, document review and contract analysis.

Tom Hagy: 1:28

Let's keep a little healthy skepticism there. We're assuming it does save a lot of time, and I think it will. Of course it will. It's saving me some time. It's giving me somebody else to talk to. What might lawyers do with all this newfound time?

Gemini: 1:40

This allows lawyers to focus on the more strategic aspects of their work and spend more time with clients.

Tom Hagy: 1:45

I think that's great in most cases, but will they be replaced?

Gemini: 1:48

AI isn't taking over law firms just yet. I don't know about you, but I expected to hear a muah after that, lawyers still handle the complex legal issues that require human judgment and creativity.

Tom Hagy: 2:01

The bottom line is for us.

Gemini: 2:02

Overall, AI is a tool that many lawyers are embracing to improve their efficiency and effectiveness.

Tom Hagy: 2:07

Now bring it home.

Gemini: 2:08

It's more of a work smarter, not harder situation than a love affair.

Tom Hagy: 2:12

Again with a love affair. So are lawyers looking forward to it? Are they embracing? This whole thing Is abound on artificial intelligence and law, many of them by companies bringing the technology into their products.

Tom Hagy: 2:27

For attorneys, one survey says three quarters of lawyers expect AI to be integrated into their legal practices in the near term. That's fair. Half say they expect it will boost productivity. That's what Jim and I just said. But if half think it's going to boost productivity, that means do the other half not? Or the other half just didn't care. Half feel it will be transformative, so again, the other half, who knows?

Tom Hagy: 2:54

Other surveys say about nine out of 10 attorneys are worried about artificial intelligence applications and ethical issues. Nine out of 10. I'd say that's almost all, but it's not. That means one out of 10. They just don't care. This is fine, whatever, bring it on. I mean, come on.

Tom Hagy: 3:14

In an article she wrote for above the law, but no one is above the law. In an article she wrote for above the law, you're going to hear even more about generative artificial intelligence in the coming months, especially, she says, as legal technology companies ramp up their generative AI releases. She forecasts a rapid, exponential uptick in the number of new generative AI tools for legal professionals. So get up to speed on it, man. That wasn't her. That was the essence of, I think. What she's saying Is, as she'll explain, you have an ethical duty To do so.

Tom Hagy: 3:52

I'll let her tell you about it, and she is Nikki Black. She is a Rochester, new York, based attorney, author and journalist. She is senior director of subject matter expertise and external education at MyCase, the company that offers legal practice management software for small firms. She is the nationally recognized author of Cloud Computing for Lawyers and is co-author of Social Media for Lawyers the Next Frontier, the Next Frontier oh, you'll see why that comes back into play. Those are both published by the American Bar Association. She writes regular columns for the ABAJournalcom and, as I said, above the law, she's authored hundreds of articles for other publications and regularly speaks at conferences regarding the intersection of law and emerging technologies. Nikki earned her JD from Albany Law School. So here's my interview with Nikki Black. I hope you enjoy it. Nikki Black, thank you very much for joining me today.

Nikki Black: 4:53

Sure thing, I'm really excited to talk to you today.

Tom Hagy: 4:56

Are you, though? I am. I mean you forgot about me already. So that's a Rochester good start. Now you were writing and I appreciate that. Yes, so first I was just looking at your LinkedIn post today and you got kind of into a Star Trek sort of thing. So yeah, I saw some references and I clearly I mean right away found out that I only know so much. I, you know I watched the original series and I know I've seen all the movies, but new generation stuff I don't know.

Nikki Black: 5:30

I've heard quite good but I started with next generation onward. I never watched the original series.

Tom Hagy: 5:38

Probably to you. The original series would be more of a comedy, because it's just so campy and corny and it's I think it was. I don't know if it was intentionally funny, but it was. If we could look at it now, it was kind of funny. So what's the? What's the through line from Star Trek to your career? Now, is there one?

Nikki Black: 5:59

Well, yeah, I think it was. I think I've always been interested in technology as a you know, it's been an interest of mine and I, now that I look back on my life, I sort of see this common thread of an interest in technology. Like my dad brought home a TRS 80 when I was like 12, I think, and I learned how to program it so I could play Pong. And then, you know, I took a programming class in college and when I was in law school I started watching next generation and that's sort of what got me through law school. So I've always been interested in tech. So it doesn't sort of surprise me in retrospect, but I ended up at the intersection of lawn technology, using my professional degree and combining it with a sort of long time interest, and now I've been with a tech company for 12 years.

Tom Hagy: 6:44

So Okay, all right. Well, all right, there is a connection. And so, yeah, there is. Yeah. So so, for people not not steeped in the terminology in this technology, can you just give a kind of a snapshot? What is generative AI in the context of what we're talking about today?

Nikki Black: 7:03

Well, generative AI is a subcategory of artificial intelligence and it is one that allows usually conversational input, but you can also upload documents or images. You know, it requires some input and then it provides output in the form of text or images or even videos, and it is essentially almost like a chatbot, that, or almost like an assistant that will answer questions and provide you with the world's range of information. So it's a really useful tool and it really, you know, sort of jumped upon the scene in November 2022 when chat GPT, or open AI, released chat GPT three, five, and since then the adoption and the technology itself is accelerated rapidly.

Tom Hagy: 7:56

Okay, what accounts for this upward trend in the release of legal technology companies using generative AI tools?

Nikki Black: 8:08

Well, the legal field is one of, I would say, the top 10 fields, almost like possibly the top five, depending on which study you look at. It is most likely to be impacted by generative AI. That's because it has this ability to significantly replace certain workflows or assist with those workflows in really impactful ways. For that reason, it makes a ton of sense for legal technology companies to start building this into their platforms, both because it provides utility for their customers, but also because they're uniquely positioned to understand the needs and ethical issues that lawyers face and meet those needs and ways that are compliant and provide more trustworthy results. So lawyers don't have to worry as much about the ethical and accuracy issues.

Tom Hagy: 9:03

So we talk a little bit about what the G we'll call them GAI tools for legal professionals on the market. What are some of the ones that are common? Which ones do you use or which ones do you see lawyers using?

Nikki Black: 9:18

Well, I tend to. When I speak to lawyers about it, I recommend that they initially get understand how it works, just get a basic understanding, that they invest in ChatGPT+, which is $20 a month, just for a month, and use it in ways where they aren't inputting confidential information so that they could get a sense of how it works. I would say that ChatGPT+ is probably the most popular one, but I know lawyers that use notion AI and have talked to me about ways that they use that. Clawed is another more publicly available one that lawyers use. Then there's Bing Chat, there's Google Bard, which has been rebranded to Google Gemini.

Nikki Black: 9:57

Lawyers are dabbling in those to get a sense of how they work, and also Microsoft Copilot, for example. But I think that ultimately you're going to find that lawyers are going to want to have it built into the ecosystem of the software their firms are already using, and that's absolutely happening at a really rapid pace. So eventually you're going to see by the end of the year, most lawyers using it in the software their firms are using. So Law Practice Management Software will do research software that their firms use, document Management Software. So I think you're going to ultimately see them primarily relying on those, and also Copilot, if they're in the Microsoft ecosystem, you're going to see them relying on the embedded tools, embedded in the tools their firm is already using.

Tom Hagy: 10:38

So we're going to get into what steps legal professionals can take to maintain their competence here. But you're saying, can it dive into the tools and test them out?

Nikki Black: 10:47

For sure. I mean lawyers have a duty of technology competence, and that means that they have to have an understanding of all different types of technology and stay on top of changes so they can make educated decisions about whether to use or not to use technology in their practices, and generative AI absolutely falls under that requirement.

Tom Hagy: 11:06

How are these tools being incorporated into practices?

Nikki Black: 11:11

When I give my talks on generative AI, I have a list of 10 different ways the lawyers can use it the publicly available consumer tools within the confines of ethics requirements, so that they're not entering confidential information, and that can be brainstorming, that can be creating document templates, drafting initial drafts of letters. It can be used to come up with questions for what are your questions? For cross-examination or direct examination, and it can be really effective. It can summarize general legal terms. I definitely don't recommend using chat GPT for actual legal research, but you can use it to define concepts To get you started on your research path.

Nikki Black: 11:55

There's lots of ways that lawyers can use the publicly available tools and then, once it's built into software, there's so many different ways that you can use it, with practice management to software being an example.

Nikki Black: 12:07

Not only can it be used to draft emails, to draft letters, to draft templates, to create workflows that can then be applied across the system.

Nikki Black: 12:18

It can also be used to change the tone of letters, to edit communications and it can be used on a more broad scale, where a lot of companies are working towards this, including the one I work for. In my case, we recently ruled out generative AI capabilities with a plan to increase the scope of those over the coming year. If you think of your practice management software system, it's a database that is full of all of your law firms' data documents, contacts, court dates, outcomes, client communications. You can use generative AI almost as an intelligent assistant to conduct Q&As across your entire system and that can help you understand how much to bill in a certain case, because you can ask in past cases how long did the typical cases like this one take? How much did we bill in those cases? What did the profit look like? You can even use it to help you come up with flat fees so you can be more competitive in the future as fees change. Because of generative AI, you can also use it as a knowledge management tool.

Nikki Black: 13:22

I know I wrote a memo on this type of issue in a personal injury case in the past. Can you locate that? You can find it. When it has access to firms' entire database in a secure, confined system that protects confidentiality, it can ultimately be an incredibly useful tool and I think you're going to see that over time.

Tom Hagy: 13:43

Sounds like it could be really powerful, pointing at just even at your own data 100 percent.

Nikki Black: 13:48

yeah, also creating new, and also just to be an assistant that creates new data, that helps you brainstorm, that creates documents, forms, helps you navigate the system better, even.

Tom Hagy: 14:00

You said workflows. How might that work in a practical setting?

Nikki Black: 14:04

I happen to talk about one of our customers, coincidentally because I'm on a panel an.

Nikki Black: 14:09

ABA ethics conference panel with him and when we were talking to him and another legal tech consultant and he mentioned to me when we were preparing for the panel that he was using Notion AI right now to create workflows that he was then applying to my case. He was using this tool called Notion AI to create a workflow for intake One of the biggest challenges lawyers have in our software. Another software has the same, similar functionality. You can create workflows for intake. You create a workflow for criminal matters, for personal injury matters, for employment matters.

Nikki Black: 14:47

But the problem lawyers often have is they will outsource this to a consultant to help them figure out what a workflow should even look like. They have a hard time identifying the different aspects, the different pieces of work throughout a workflow. To create that workflow, he used Notion AI as an intelligent assistant to help him talk through workflows for different parts of his practice. Then he created those workflows in my case. Eventually, my case is going to have capabilities to create that I fully expect within my case. But that was just an example of how he used these types what use that software to help create workflows.

Nikki Black: 15:27

Then those can just be applied every time a new case comes in. That's an intake, all of them are intakes or that's a criminal defense matter. You have the same intake flow for every new case or every new criminal defense matter. Then you have the same intake for every personal injury matter and it assigns everybody in the firm different tasks to get that case created in the system, then to start all the things in the motion in place that you have to do as that case rolls along. It's a really interesting way to start to streamline your firms processes.

Tom Hagy: 16:00

Do you need to take care of the dogs?

Nikki Black: 16:02

The mailman just showed up.

Tom Hagy: 16:03

I wasn't sure if you could take care of that. You do what you need to do.

Nikki Black: 16:05

Well, that's why they're in the basement and I think they drove away. The mailman drove away. I think the mailman showed up.

Tom Hagy: 16:11

Yeah, there's a lot of hand-wringing going on about AI and it's misuses and stuff. Let's just touch on that a little bit. What are some of the risks to the technology and how can legal professionals mitigate those risks?

Nikki Black: 16:25

Well, especially when you're using ChatGPT or other consumer-grade products, there's a lot of issues. There's the issue of confidentiality, because they use the data to train their systems. In some cases you can turn that off. With ChatGPT plus you can turn off the training component, but I don't fully trust what that means. I recommend lawyers still don't input confidential information into those systems unless they're provided by a legal provider. So first of all, there's that confidentiality aspect. All systems still hallucinate.

Nikki Black: 17:01

The most legal companies create some guardrails in the back end, both in terms of the programming and also in terms of reducing the types of inputs you can put into the system to in turn reduce the inaccurate responses, the likelihood of inaccurate responses. So that's another issue that lawyers encounter. And also there are some concerns about privilege and what does it mean if you're? Is this, the system, a third party? And that's another issue that's outside the realm of ethics. But the lawyers may need to think about and, you know, keep track of what court's opinions, court's conclusions are when they hand opinions down on these topics. But so there's a range of issues that lawyers need to be aware of and need to track the different ethics opinions and court rulings as they come down on these different topics.

Tom Hagy: 17:57

Okay, well, you talked about ethics rules, so it kind of takes us to the next questions what's the impact of the ethics guidance handed down first by the State Bar of California's committee on professional responsibility and conduct, and then what other states are doing?

Nikki Black: 18:14

Well. So it's interesting the different approaches that they've all taken. I but there I thus far I feel like we're all doing a pretty good job, because they're providing guidance rather than hard and fast rule. And some are even saying which I think is 100% accurate and a correct conclusion that preexisting ethics guidance on technology usage is more than sufficient and they don't need new ethics rules or ethics conclusions that relate specifically to AI. So that's why California, for example, issued guidance rather than an opinion. So, and it was a pretty broadly framed guidance, which I think is the appropriate thing to do with all types of technology, because technology changes so quickly, especially generative AI, that if you provide any sort of narrow conclusions then it's going to quickly become moot and outdated as the technology changes.

Nikki Black: 19:09

So you're definitely seeing California, new Jersey, north Carolina just issued an proposed ruling. There's another state that I am missing that I also wrote about, but they're all taking a sort of elastic approach, which I think is interesting and appropriate, and providing guidance to help lawyers and navigate adoption, and oftentimes they compare it, which is correct. You need to understand the vendor, how they're going to handle your data, who has access to it, whether it's going to be trained on the data or whether that can be turned off or precluded all together. So they are offering really useful advice that I think you're going to see more and more states handing opinions down as well over time.

Tom Hagy: 19:55

Do you have any other warnings that you would suggest?

Nikki Black: 19:58

Well, first and foremost, don't conduct legal research using consumer grade tools. There have been multiple headlines about lawyers using chat, gpt and submitting false case citations and false cases all together to the courts. But that's more of a competence issue. I'd like to analogize it to a first year associate or a new paralegal. No matter who provides you with research, you have an obligation to review it. You can't just rely upon that. That's your job as an attorney. That's a basic competence.

Nikki Black: 20:34

Your ethical obligation of competence requires you to fully review everything that you submit to the court. So you have to make sure that no matter who provides you with a draft whether it's a person or whether it's AI software you review it. You look at the actual cases and read them and ensure that the conclusions are appropriate. That's really more of a competence issue, but you can conduct legal research with Thompson, reuters and Lexis Nexus. They have rolled out generative AI tools into their software. Also, vlexis has done the same, which recently clarified past those. So you can use those tools, but you've got to first vet the providers and make sure you understand the accuracy of the output and how they're handling the information. You have to vet everybody before you use their tools and then, obviously, only inter-confidential information, after you've gone through that vetting process and understand how the data is going to be handled and are satisfied that it's handled with reasonable care that meets your ethical obligations.

Tom Hagy: 21:33

Are you seeing concerns about people losing jobs because of generative AI?

Nikki Black: 21:41

Based upon studies that I have seen and also ones that we've conducted. I oversee and write the my Case Legal Industry Survey report, and we had a whole section devoted to generative AI and that was just published in January. What I'm finding from that survey and others that I've read is that senior partners tend to think that they can replace, use AI to potentially replace admins, possibly paralegals and possibly even associate attorneys, but none of them, of course, thinks that they can replace what they do.

Nikki Black: 22:10

So, whether it's actually going to replace jobs remains to be seen. It certainly can replace some of the mundane work that every attorney at every level performs and allow lawyers and other legal professionals to focus on more interesting and higher level analytical thought processes. So it'll be interesting to see how that plays out. But certainly I do think that you may see some of the decision makers and firms thinking that it can replace people below them, just as they think that if they got to conduct layoffs, that's who they're going to lay off. But that perspective isn't going to necessarily go away with generative AI. But I think for the most part, it's that streamlined workflows and makes lawyers and legal professionals more productive, versus replacing their jobs, at least in the short term.

Tom Hagy: 22:58

Yeah, I think what you said earlier was dive into it and is anything like this rather than being afraid of it's coming, it's here, so dive in and learn it and become hey, if you're a small office, because a lot of what you do is for small offices be the person who's expert on AI. It just seems to me it would be a quality that other people would look for.

Nikki Black: 23:20

Yeah, for sure, that's a really good point.

Tom Hagy: 23:23

My career advice Do you give CLE webinars on technology and ethics?

Nikki Black: 23:30

Sometimes I host, I present at webinars for my company. There is a chat GPT generative AI webinar that I present to them. I want to say in November that it focuses on that, and sometimes I do for bar associations. Now that we're basically fully out of the pandemic, one way or another, I've been speaking a lot more in person as well on primarily generative AI. That's what everybody wants to hear about. That's what both the providers and the lawyers are most excited about these days, and it's really interesting to see such a high level of curiosity about it from lawyers in a way that I've never seen about any other type of technology. So, as someone who tries to bridge legal lawyers and tech, it's kind of an exciting time because they're so receptive to this information.

Tom Hagy: 24:19

So if somebody listens to this and gets excited about trying it, your advice early on was to dive in and you gave some different platforms to try. Not that you have to endorse any, but if somebody wanted to get off, listen to this podcast and go try it, where are the one or two or three places they should go and what should they do with them?

Nikki Black: 24:40

I usually recommend the lawyers subscribe to chat GPT Plus, as I said previously, for one month just to get the hang of it.

Nikki Black: 24:48

I think that that's the one that has the most capabilities right now and that's just easiest to dive into. See if the software tools that you're already using in the legal space have plans to or have already rolled some of this out. Most companies that's rolled out in beta, for example, like my case, it'll be out publicly soon but it's in beta. Lexus, nexus and Thomson Reuters ruled it out publicly, I believe the beginning of this year, if I recall correctly, and it was in beta prior to that. It's probably either available publicly or definitely in beta or very soon in beta in products you're already using. That's where I would look to. Sometimes you might miss the announcement. So double-check If you use a certain practice management tool or document management or legal billing or legal research tool, google the name and AI and see if there have been any announcements recently and try to get on the beta list if it is in fact in beta in that platform.

Tom Hagy: 25:49

Tell me about my case. Folks listening what it is you guys do. What value do you bring to? It sounds like small farms, mainly. And then how you're incorporating AI into it.

Nikki Black: 26:02

Sure, my case is the company that I've been working for for 12 years. In June of 2022, we were acquired by Affinipay. Affinipay is the parent company of Lape. Prior to getting acquired by Affinipay, we also acquired Dockwise and Casepear. Affinipay is the parent company of Lape, which is legal processing tools for lawyers payment processing tools, or rather, it allows you to securely accept credit cards in a compliant manner and debit payments in a compliant manner.

Nikki Black: 26:41

Then my case, dockwise and Casepear are different types of practice management software tools for law firms. My case is a tool for firms of all types and it allows lawyers to run their practices from lead management to client intake, to running the entire case and communicating with clients. So billing and getting paid through Lape. And then Casepear and Dockwise essentially serve the same functions but for specific practice areas. So Dockwise is for immigration attorneys and Casepear is for personal injury attorneys. So we essentially look at our legal tools as the operating and payment systems for firms of all different practice areas, primarily solo and small firms, but Lape actually is available across the market and serves 40 percent of large law firms as well. So we definitely serve the entire market, but our practice management tools tend to focus more on small law firms.

Tom Hagy: 27:39

To the extent of AI being integrated.

Nikki Black: 27:43

My case is rolled out beta AI functionality already and those tools will be rolled out very soon and be publicly available in the platform. Then we have plans to roll out similar functionality across those three different other products that I mentioned over the next year. Depending on the product, the functions are going to be different. Immigration firms, for example, are very document intensive. So you're going to see some, depending on what the practice areas look like at the different tools serve. You're going to see different software products serve. You're going to see different types of functionality and also similar functionalities across all of them. And obviously with Lape, since it's payment processing, it's going to be more related to the financial side of things within that tool. So we have plans to roll it out across all of those tools over the next year and to, over time, provide even deeper and deeper functionality across those platforms as well with the generative AI tools.

Tom Hagy: 28:44

Well, Nikki Black, thank you very much for talking to me about this today. I hope to get you back as things, because this is a evolving technology.

Nikki Black: 28:51

Sounds good. Thanks so much, Bradley. It was a great discussion.

Tom Hagy: 28:55

That concludes this episode of the Emerging Litigation Podcast, the co-production of HB Litigation, critical legal content, VLex, Fastcase and our friends at LostG Media. I'm Tom Hage, your host, which would explain why I'm talking. Please feel free to reach out to me if you have ideas for a future episode and don't hesitate to share this with clients, colleagues, friends, animals you may have left at home, teenagers you've irresponsibly left unsupervised, and certain classifications of fruits and vegetables, and if you feel so moved, please give us a rating. Those always help. Thank you for listening.