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July 5, 2023

A just machine to make big decisions,
Programmed by fellows with compassion and vision ….

Lyrics from the song I.G.Y. by Donald Fagen.

In May 2023, I was part of a panel that gave a presentation at the London Market Association’s Property Insurance Claims Group’s (PICG) Annual Conference. Part of our presentation addressed the rise of artificial intelligence (“AI”) in the law and in insurance adjusting. We have seen several interesting developments over the past few months in terms of AI and the law. Here are some of the highlights:

A judge in Cartagena, Colombia used ChatGPT to assist him in researching and drafting a decision in a case involving whether an autistic child’s insurance should cover and pay certain medical expenses. The judge said he relied on his own legal judgment to decide the issue, but the judge said that ChatGPT helped streamline his research and prepare a draft of his decision quickly, thus saving time instead of having a human assistant help him. The judge said that such technology is an important way for Colombia to address its backlog of cases. Lawyers in Colombia are encouraged to use technology in their law practice, but some people have raised concerns that judges could start relying on AI too much, and that it could start to creep into the decision-making process.

A lawyer in New York was sanctioned by a federal court after he made a court filing that was created by ChatGPT that included fake quotes and citations to non-existent case law (that apparently ChatGPT just made up). The Court said that lawyers are welcome to use technology (including AI) in their preparation of court filings, but that – ultimately – the lawyer is responsible to ensure that all court filings are true and accurate.

A federal judge in Texas issued an order that requires lawyers to list a certification on their court filings that the court filing was not created by AI, or – if the lawyer did use AI to prepare the court filing – that the lawyer has independently checked the AI material and that it is true and accurate. The judge acknowledged that AI likely can be a useful tool for a lawyer to create certain legal forms or assist in word processing, but the judge said that AI should not be used as a substitute for legal briefing.

The Honorable Mark W. Klingensmith, who is the Chief Judge of Florida’s Fourth District Court of Appeal, discussed the current state of artificial intelligence in the law – specifically things like ChatGPT – and its possible effects on judges and lawyers in an article published in the May/June issue of The Florida Bar Journal. Judge Klingensmith’s conclusions are in keeping with the sentiments expressed by the other judges mentioned in this article: namely that AI has the possibility to provide legal professionals with new tools to do their work, but AI is not ready to be used as a substitute for a judge or a lawyer.

Although the consensus seems to be that AI is not ready to replace judges and lawyers, at least one prominent legal voice believes there might be a place for AI to begin making certain decisions in particular cases. The Right Honourable Sir Geoffrey Vos is the Master of the Rolls and the head of the civil justice system in England and Wales. Sir Geoffrey believes there might be an opportunity for AI to act as a decision-maker in minor disputes that do not involve intensely personal matters. The parties would first have to agree that they want AI to make the decision, and then – even after the decision is made – the parties would still retain the right to appeal that decision, and the appeal would go to a human, not a machine. Sir Geoffrey believes this option might be very appealing to litigants (perhaps mostly in the commercial sector) who (1) simply want a decision quickly; and (2) believe that the current state of AI decision-making is adequate and that the efficiency/expediency outweighs other considerations. In that regard, this option might be best described as an intelligent machine-arbiter with a human safety net.

Please contact Tim Engelbrecht if you want to discuss the topics of AI, the law, or its impact on insurance and litigation.