AI from an Intellectual Property Perspective
AI Hallucinations in Legal Practice: Why Lawyers Must Maintain Professional Scrutiny Over Automated Tools
Much like an imperfect recollection in AI can create a misleading pastiche, AI use in the courts has raised similar concerns, with AI hallucinations appearing in courtroom presentations from highly prestigious, world-class law firms.
In Procter & Gamble (EWCA 2007), Lord Justice Jacob stated that “the level of generality to which the court must descend is important,” given that the more general the level of comparison, the more likely it is that the design will lack individual character.
It was further reiterated that “while the informed user is attentive to detail, they will not undertake a detailed and specialist appraisal of the design format.”
This principle provides a useful guideline for lawyers using AI as well. AI is ultimately advertised and marketed as a tool, not as a replacement for the law or for lawyers themselves.
As a result, although lawyers are “informed users,” to borrow the phrase, of AI systems, some are failing to apply the specialist legal scrutiny expected of legal professionals when reviewing AI-generated argumentation. Unfortunately, this is not an area where interpretation alone is sufficient. AI systems can produce serious errors, including hallucinations in which case precedents are fabricated or distorted due to weaknesses in the underlying data or model outputs.
As lawyers, it is imperative that the profession move forward alongside AI with clarity and professional responsibility.
Certainly, it is equally important for firms to create a strong overall impression for clients through the use of modern tools such as AI platforms and legal technology. However, as the General Court noted in Kwang Yang Motor Co. Ltd v OHIM (2011), “the greater the designer’s freedom in developing the challenged design, the less likely it is that the minor differences between the designs at issue will be sufficient to produce a different overall impression on an informed user.”
Similarly, by analogy, although an AI tool may produce a different overall impression than that of a traditional black-letter-law litigant, it remains critical that the lawyer using the AI tool remember that professional judgment, advocacy, and accountability still belong to the lawyer—not, for example, to OpenAI’s ChatGPT.
