Eight Practical Ways to Leverage Generative AI in Litigation

Generative Artificial Intelligence (GenAI) is rapidly reshaping the legal landscape. Increasingly, clients look to their litigation counsel to employ technology that can reduce costs, accelerate insights, and enhance strategic decision-making. GenAI has the potential to enable counsel to handle litigation matters more efficiently and creatively, so that they can dedicate attorney time to higher-level strategic thinking and ultimately deliver greater value to clients. This Legal Update highlights eight of the most practical and impactful applications of GenAI across the lifecycle of a litigation matter, from the earliest case assessment to discovery, motion practice, and preparation for trial and oral arguments.

1. Early Case Preparation

GenAI can accelerate initial case assessments by quickly generating detailed chronologies from a complaint, correspondence, and potential evidence, highlighting critical events and gaps in the factual record. It can also assist with spotting issues, identifying potential affirmative defenses, counterclaims, or jurisdictional challenges based on a complaint or demand letter. Additionally, GenAI tools can compare a matter against prior cases with similar fact patterns, flagging distinguishing factors that may influence strategy or settlement posture. These capabilities can help develop an early view of case strengths and identify potential vulnerabilities.  

2. Employing a Data-Driven Strategy

GenAI can amplify the use of existing litigation analytics tools to help attorneys predict motion outcomes, discovery tendencies, and the average time-to-trial. When drawing from a strong foundation of historical data, GenAI can support settlement modeling to assist business leaders and outside counsel in assessing outcomes and risk budgeting.

3. Discovery Requests and Deposition Preparation

Drafting discovery requests and responses is often a time-consuming part of the discovery process. GenAI can help draft initial discovery requests, including definitions and instructions, which track the elements to be proven. It can help brainstorm categories of information to request. This technology can also help with analyzing opposing counsel’s discovery requests to identify an initial set of objections or to propose narrower responses.

Deposition preparation is another area elevated by the use of GenAI tools. They can help identify the most relevant documents from a production set to use as exhibits, suggest questions to include in a deposition outline, and help to identify potential vulnerabilities to focus on during witness preparation sessions. Following a deposition, GenAI can rapidly process transcripts to help develop digests of the testimony, and to identify inconsistencies or issues raised by the testimony, as well as to identify testimony relevant to particular themes or topics.

4. E-Discovery

Discovery remains one of the most costly and time-consuming phases of litigation. To alleviate this, legacy e-discovery vendors are rapidly developing and marketing AI-enhanced privilege and relevance review products. Startups embracing comprehensive GenAI integration are also on the rise. GenAI can augment traditional technology-assisted review by grouping documents by concepts or themes, in order to help teams prioritize review of the most relevant materials. When GenAI is provided information about attorneys in the document set, it can flag communications likely protected by the attorney-client privilege or the attorney work product doctrine for special handling by the review team. When integrated into defensible workflows, these capabilities can accelerate document review timelines, allowing attorneys to focus on the review of key documents and any necessary motion practice.

5. Translating Documents

Some cases involve documents in multiple languages. GenAI tools can provide near-instant translations of emails, contracts, and chat messages at a fraction of the traditional translation vendor cost. Attorneys can also prompt the model for alternative phrasings of industry jargon or colloquialisms, improving translations for courtroom presentation. Real-time translation within e-discovery platforms helps reviewers identify hot documents without routing every item through a separate translation tool first. Counsel should still pay close attention to translation certifications required for court filings, but GenAI has the potential to accelerate review and gain early insights to inform strategy in cases that involve foreign language documents.

6. Legal Research

Although GenAI capabilities in legal research are less sophisticated and have led to numerous headlines of improper reliance on “hallucinations,” when used properly, certain GenAI applications can be a valuable tool in the legal research toolbox. AI-powered research platforms can use natural language searches to search across large numbers of primary and secondary sources. GenAI can quickly surface potentially relevant authority with pinpoint citations, enabling attorneys to get a head start on their research. It is important that lawyers only use the GenAI capabilities of a reputable legal research tool that has access to reliable databases, such as Westlaw or Lexis. Large-language models (“LLMs”) that do not have access to reputable legal research databases, and which are not designed for legal research, may carry a greater risk of hallucinating legal authority that does not exist. Commercial legal research tools also are not immune to errors—they may misstate the holdings or posture of a particular case. Counsel must carefully review all research and cited sources to validate their authenticity.

7. Writing

When used appropriately, GenAI can be a helpful legal writing companion for streamlining the drafting process. Attorneys can upload documents of a certain type from previous matters (such as proposed orders, deposition notices, and settlement agreements) and direct the tool to create a template to use for a current matter, based upon the style of the uploaded documents. GenAI can also assist attorneys working on reviewing and revising briefs by proposing preliminary revisions to meet stylistic or strategic objectives. Attorneys can use these tools to enhance the tone and structure of briefs or correspondence. Finally, GenAI can help review a near-final draft to ensure consistency by cross-referencing sections to ensure that defined terms, citations, and factual statements are used consistently throughout a document.

However, brief writing is another area in which GenAI should be exercised with caution and heightened scrutiny, particularly as courts have sanctioned lawyers for hallucinated authorities in briefs. GenAI should not be relied upon for legal expertise or judgment, nor can it fully capture the nuances of legal arguments. Inaccuracies and plagiarism are some of the other risks when relying on GenAI for content. Lawyers should carefully vet all GenAI drafted work product to ensure that the tool did not hallucinate, and familiarize themselves with the relevant court’s rules regarding the use of AI. Think of GenAI as a tool for augmenting your drafting workflow, not as a substitute for drafting itself.  

8. Trial and Oral Argument Preparations

Litigators may consider using GenAI as a sparring partner to help prepare for trial or oral argument. Lawyers can upload pleadings, evidence, and briefs to the tool, and use the tool to moot their issues. The technology can identify potential weaknesses in arguments and suggest the best points to make to appeal to a judge or jury.

Key Reminders

1. Generative AI is not a replacement for legal judgment. It is a force multiplier that allows litigation teams to act with greater speed, precision, and insight, freeing up time for lawyers to concentrate on strategy, analysis, and creative problem-solving that cannot be replicated by AI.
2. Governance matters. Robust protocols around data security, confidentiality, and human oversight are essential to the defensible use of GenAI.
3. Attorneys should thoroughly review and scrutinize all work product that GenAI drafts, particularly when the tool incorporates factual references or legal research in its draft.  

As the technology continues to evolve, we are evaluating the ways that GenAI may be able to enhance our practice without compromising overall quality and client results. We welcome you to contact our team to discuss how we can tailor our approach to your needs, including any preferences regarding the use of GenAI tools.