As artificial intelligence (AI) increasingly intersects with the legal sphere, the ability for lawyers to effectively communicate the nuances of AI technology becomes paramount. For legal professionals tasked with advising clients on AI tools or presenting AI-generated outputs in litigation, understanding the fundamental questions surrounding the technology is crucial, as indicated by Kenneth Rashbaum and Lani Medina of Barton. You can read more about their insights here.
In the context of the American Bar Association’s 12-year-old guidance on technological competence, lawyers need to remain current with advancements in technology, particularly AI. Details on the ABA’s model rules can be found here. Fundamentally, it’s about posing significant questions such as understanding the design objective of an AI tool, distinguishing between AI and machine learning, and clarifying the specific type of AI involved—whether predictive, generative, or hybrid.
Moreover, establishing the reliability of AI evidence necessitates an understanding of how the AI tool was trained, the quality control measures in place, and the necessity of explainable AI. The United States District Court for the District of Nevada’s guidance, influenced by the National Institute of Standards and Technology’s AI Risk Management Framework, underscores the importance of explainability, accuracy, security, and bias mitigation. The relevant framework from NIST is available here.
Additional legal challenges may involve requests for proprietary information related to the AI’s algorithm or its training processes. These requests could necessitate strong confidentiality agreements. Moreover, whether the AI evidence can meet the Daubert standard will also be a critical consideration. The Daubert case illustrates considerations like error rates, general acceptance, testability, and peer review, and further details are available through a case summary here.
In essence, advocating for or challenging AI as admissible evidence requires legal professionals to adapt with technological evolutions. By mastering the underlying principles of AI technology now, lawyers can better navigate this evolving landscape and provide effective guidance to their clients on AI-related legal matters.