Over the last two to three years, it seems that all anyone is talking about is AI. You’ve probably heard about Generative Artificial Intelligence (“GAI”), a very scaled up version the same predictive text software available on your average 2006-era cellphone, which use LLM (large language models) to drive chatbots like ChatGPT. It is the Current Big Thing. The question is, can it replace a walking, talking, thinking human, or even a lawyer?
What Happens When Clients Use ChatGPT in Legal Disputes?
I’ve previously written about the issues employers should consider when implementing GAI into their operations. Many of these same issues apply to clients who believe that GAI is a free and useful replacement for employment lawyers, like me, or at minimum, a useful assistant for their employment lawyer.
Recently, during a mediation, a client fed the mediation briefs of each party into ChatGPT and showed me the resulting analysis. It said that our case had certain weak points, and some strong points, and helpfully included wholly invented probabilities of success in proving certain elements of the matter. Unsurprisingly, this surface level analysis did little to assist in the negotiations.
Another lawyer I know had a client use ChatGPT to research cases to support his case, which he then sent to his lawyer to review. Not surprising, the cases were either made up or had little to no relevance to the client’s case. In fact, because the lawyer had not come across these cases (because they were made up or did not apply), he had to spend time researching the information which ended up costing the client more in legal fees, for work that did not need to happen.
Often when I give a client an analysis of their case, they’ll ask me if they should go and negotiate their own severance packages. The implication is that, armed with the legal information about what they should or could get, they can simply present this information to their employer’s counsel, who will then presumably hand over the full amount for the notice period.
The reality is that legal disputes often do not come down to two sides not agreeing about what the answer is to a legal problem. Rather, they come down to each side leveraging the mixture of uncertainty and cost, even when the answer is known.
For example, employers don’t withhold common law notice entitlements from employees because they don’t know what those entitlements are. They withhold common law notice entitlements because they can use that as a leverage point in negotiations that are counterbalanced by the fact that the employee may have to go through the trouble of a lawsuit to get that entitlement. Unfortunately, it’s not a game of correctness – rather, it’s a tug of war.
Is Law Really About Finding the “Right Answer”?
Ultimately, it comes down to this. Despite what some of us may wish, the law is not a logic puzzle where the outcome comes down to determining The Right Answer. Law, especially employment law, is actuarial and advocative, balancing and mixing a thousand factors including legal entitlements, probabilities, risk, costs, uncertainties, unknown variables, and of course the human factor.
AI tools are generally very useful for quickly collating and evaluating data sets, like sorting through numerical information or checking documents for spelling and grammar. They also have utility in operating within a defined set of rules with a pre-determined number of outcomes, like chess.
A GAI tool may write a decent demand letter for you and that same tool can likely give you a good estimate of your potential damages if the matter is straightforward enough. Of course, you may want to check the citations before including any of them because those softwares are well known to hallucinate cases.
Can AI Replace the Human Judgment of a Lawyer?
What AI tools are not good at is abstract thinking, which is usually considered a desirable, if not outright preferred quality in a lawyer. Sure, it may be easy for the GAI tool to give you an idea of your common law notice entitlements, but the employer is not going to be any more motivated to hand over money because GAI said so.
However, if you are expecting one of these GAI chatbots like ChatGPT, Perplexity or Claude to run your case for you instead of a lawyer, you may want to ask yourself if generative artificial intelligence is capable of replacing a human mind.
If you find yourself in need of an employment lawyer, please do not hesitate to reach out. You can contact us online or by calling 416 640-2667.
Author – Aaron Zaltzman
