The promise and the peril of the use of generative artificial intelligence in litigation

Generative artificial intelligence (‘GenAI’) has been employed by lawyers and parties to litigation in courts and tribunals around the world. While GenAI holds out the promise of more accessible legal services, GenAI also creates risks, such as the production of nonexistent or inaccurate case citations and statements of law. Both lawyers and self-represented litigants (‘SRLs’) have failed to verify this ‘fake’ law and have used the outputs in litigation. This article examines why lawyers and SRLs are prone to misuse GenAI in litigation, including by reference to aspects of human psychology, such as automation bias and verification drift. The article then explores potential solutions to address this misuse: education, certification, sanctions and/or prohibition. Attention to solutions is crucial if the justice system and its users are to reap the benefits of GenAI without the risk of a hallucinated body of precedent eroding public trust in legal processes and the courts.