This question was recently posed at the Legal 500 Commercial Litigation Conference, featuring a session on generative AI (GenAI) for which Burges Salmon’s Tom Whittaker was a panellist.  Key takeaways from the session include: 

1. Use cases - GenAI can be used by those involved in litigation in a variety of ways, many of which are still being explored. Examples discussed were creating chronologies, drafting and sense-checking documents, improving OCR.  It is not necessarily the case that GenAI is used as the first draft; it may be that it is used instead as a ‘sense-check’ or ‘cross-check’, meaning the lawyer creates the first draft and continues to have ownership of the overall output.
2. Transparency - there is a question about when and to what extent a party needs to inform another party about the use of GenAI. There are use cases where one would expect not to have to inform another party, and others where one would.  Where the dividing line falls requires careful thought.
3. (more) Transparency - we may not know for a while whether and to what extent enAI is being adopted in civil litigation. For example: cases where GenAI is being used now may not result in judgments for years to come and even then, the judgment may not refer to its use. Accordingly, it is possible that there is a delay between parties using GenAI and the wider world knowing about it; reference was made to wide use of technology assisted review from around 2010 but it wasn't until 2016 that the seminal case of Pyhrro was published (in which the approved of the use of TAR and set out a framework of factors to consider).
4. Education - legal education and training will be in the spotlight to ensure that lawyers - in-house, at the Bar and in private practice - understand the opportunities and risks of GenAI in order to ask informed questions.
5. The procedural rules - the rules appear adaptable to the use of GenAI in principle, although much will depend in practice. They have been developed with technology in mind.  The procedural rules do not explicitly prohibit the use of GenAI, but that does not necessarily mean they support GenAI either. However…
6. Adoption - successful use of GenAI in litigation will not be solely dependent upon the procedural rules.  Success will require various other factors, including: effective stakeholder management; appropriate transparency and explainability; effective engagement with technology vendors; and potentially collaborative and multi-disciplinary teams of lawyers and technologists.

If you would like to discuss how current or future regulations impact what you do with AI, please contact Tom Whittaker, Brian Wong, Lucy Pegler, David Varney, Martin Cook or any other member in our Technology team.

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This article was written by Sophie Engel and David Hine