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Proposed Fifth Circuit Ruling Puts Generative AI into Focus

by Justin Smith

With the use of artificial intelligence spreading like wildfire throughout the legal industry, there are those racing to take advantage of the technology, and those racing to place limits on its use.

The Fifth Circuit Court of Appeals could place itself in the latter camp, after it recently proposed an amendment to Fifth Circuit Rule 32.3 that any use of generative AI must be disclosed to the court, and require a certification of review and human approval of AI-generated citations and analysis. With public comment closed as of last Friday, a decision might be forthcoming in a matter of months.

However you might feel about this potential amendment, if adopted its consequences are likely to be far-reaching, as generative AI is already being used by legal teams across different industries and in courtrooms across the country.

An Overview

According to the proposed amendment by the Fifth Circuit, attorneys would need to “certify that no generative artificial intelligence program was used in drafting the document presented for filing, or to the extent such a program was used, all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human.”

It’s worth noting that this rule change would only apply to documents submitted to the court, leaving room for possible ambiguity surrounding the use of generative AI outside of this scope.

Holding on to the Guardrails

This proposed amendment is among a number of attempts by courts to create some sort of guardrails surrounding the use of generative AI both in the courtroom and during the trial preparation process. It comes on the backs of several cases involving the irresponsible use of generative AI in the courtroom, from the now infamous Avianca case to a recent case involving former Donald Trump attorney Michael Cohen, in which he used fake citations from Google Bard, claiming he was unaware it was a generative AI tool.

With polarizing opinions on both sides of the debate, it’s clear the Fifth Circuit’s decision could have real ramifications on the legal system and the way lawyers prepare for trial in the age of AI. While some have praised the amendment as necessary for attorneys who have recklessly used generative AI, others believe that if it goes into effect, it will deter lawyers from using any sort of AI technology in their work, leading to increased costs for clients and less accurate filings.

In an article for the National Law Journal, Steve Puiszis of Hinshaw & Culbertson thought the proposed rule change could be necessary for lawyers who might be unaware of the risks associated with using generative AI technology.

“I think it's hard for any court to be able to say, 'Well, if you're using this tool, certify. If you're using a different platform, you don't have to certify. At this stage of the technology's evolution, it's fine to have the certification requirements [be] broad. At some point in the future, however, it may not necessarily need to be that way,” he said.

In a public comment filing, noted attorney Carolyn Elefant stated her opposition, writing that “Singling out only generative AI products for verification creates a double standard and impractical burdens for attorneys, while disclosure requirements threaten the sacred attorney work product privilege.” She went on to detail the potential of the rule change placing undue burden on filers, and the fact that inaccurate citations have been an issue in the courts long before the existence of AI.

These comments are just a fraction of the ongoing discourse playing out regarding the proposed amendment, proving that attorneys everywhere will be highly focused on the decision.

Legal technology has rapidly evolved in recent years, and many ediscovery software companies today have generative AI capabilities of their own. While the Fifth Circuit’s potential ruling might seem like a blow to the use of generative AI in the law, its required disclosure may help courts and attorneys gain insight into how widely it’s used.

The ability to automate previously time-consuming tasks like document review and foreign language translation has allowed attorneys to dedicate time toward more pressing matters. AI’s ability to lower legal costs by automating and streamlining such tasks can lead to higher value for clients.

Looking Ahead

Regardless of which side of the fence you’re on, generative AI is here to stay. Even if other courts follow the Fifth Circuit’s lead and begin requiring disclosures and human review if generative AI is used in the trial preparation process, it’s becoming so mainstream that soon enough practically every attorney will proudly file their disclosure.

With the power to answer open-ended questions with direct citations, automatically create statements of facts, provide document summaries, and more, generative AI is a tool lawyers can use to help do their jobs better and bring value to their clients. As this technology evolves and advances, it has the potential to improve the way the law is practiced and create lasting change both inside and outside of the courtroom.