Practicing law. Mention legal work to most normal people, and they picture some poor bastard sitting under fluorescent lights at 11:30 at night, surrounded by banker’s boxes, reading footnotes about indemnification clauses until his soul leaves his body.
But the truth is it’s all about creativity. Creating an argument that resonates. Taking a bunch of facts and arranging them in new and unique ways that tell a convincing story. Writing a brief that makes a point in a vivid and memorable way. That sings. Making an audience feel something they won’t forget. Good advocacy has a rhythm. It has personality.
But conventional thinking is that maintaining that creativity in the age of AI will be a challenge. Because AI threatens to make us all sound the same and say things in the same way. The bot may be right, but damn if it’s interesting. But to get a true picture of what the AI challenges will really mean for us as a profession, we really need data. And sometimes it means we need to step outside the legal echo chamber and see what the rest of the world sees.
A recent study by D&AD, entitled The Cost of the Shortcut, What AI Is Doing to Creative Judgment, did just that. D&AD, which calls itself a “global creative non-profit,” spoke to 197 creative leaders (not lawyers). It tested what they said against its database of over 10,000 entries. What it found is pretty interesting. And scary. (Somewhat ironically, the interviews of those 197 people were conducted by AI.)
A Palpable and Very Real Fear
D&AD identified and articulated the fear stemming from the use of and reliance on AI with unnerving precision:
The risk is when AI removes the work that teaches people how to think. The human element is the fundamental part of creativity that AI can never replace. If young creatives skip the process of forming ideas, building arguments, shaping narratives, making visual choices, understanding culture, or knowing why one direction is stronger than another, the industry has a real problem. The problem arises when AI eliminates the learning hidden inside the tasks it’s helping to eliminate.
That’s exactly the risk and challenge the legal industry faces.
D&AD also reached the same realization many of us are coming to: AI can’t be original, and its use threatens to make our creative skills atrophy. AI can do the work underneath an idea, things like research, prototyping, and testing. But “the strongest work still depends on taste, intent, cultural understanding, and the ability to know when the model’s answer is not enough.”
AI tools move us all toward the average and produce work that somehow sounds, well, just hollow. That’s dangerous for the advocate. D&AD hits the nail on the head: “Originality comes from the person.”
Yes, Virginia, Lawyers Need Creativity Too
I don’t know about other facets of the law, but I do know about litigation and trial work. And success in persuading fact finders, be it judges, juries, opposing counsel, and sometimes even clients, often comes from standing out. An argument that stands out in ways that lead the other person to a conclusion. That’s, well, original. But if every lawyer sounds the same, writes the same, and frames every argument the same way, nobody leads anybody anywhere.
It’s important in another way. We are in the business of persuading people. That requires, in part, empathy, knowing what will resonate with others. Placing ourselves in their shoes. That takes human skill and originality. It can’t be replicated by a bot.
It’s recognizing things like an argument that might be technically correct but is emotionally disastrous. I represented a defendant in a case once where several people were killed and many injured when a structure was severely damaged by an unexpected storm. Another defendant pled the victims were contributorily negligent just by being there. That might have been a standard defense allegation, but it was devastating when it played out in the media. (The lawyer was promptly fired, by the way.)
AI can do a lot of things, but as D&AD points out, what it does is just a starting point: “The only thing that separates the work is what you bring above it… Ask what you bring that the model cannot reach alone and make that visible.”
Billing in the Age of AI: Get Over It
Then there is the issue of how services will have to be priced as AI does more and more. While the D&AD report isn’t about legal, it might as well be: “The industry says it sells judgment. Its pricing still says it sells time.”
Clients know AI can do work faster. Therefore, they expect the work to cost less. To continue to be viable, legal has to change the idea of what is valued. And that value is in stuff AI can’t provide: judgment, creativity, and craft. We somehow have to convince our clients to value and pay for that.
Unfortunately, all too often clients separate outcomes from the cost of legal service. What is valued is just pure time to conclusion. In part, that’s human nature: while a great outcome is good in the moment, it’s often forgotten when the bill comes due. In part, it’s hubris: the view that the outcome would have been the same no matter what. (And sometimes there is some truth in that.)
Neither we nor our clients can often even define or agree on what a good outcome is. That is in part due to a lack of data. Law is a gray area: it’s hard to correlate a strategy to an outcome. So, clients are left with the only thing that can be measured: time spent. But in the age of AI, that’s a disaster for providers since AI inevitably cuts the time spent dramatically.
D&AD doesn’t have any answers on how to change the mindset. But we have to be creative and figure out how to persuade our clients to focus on outcomes, not time. D&AD puts it this way: “The work needs to be sold for what it actually is. Decisions that produce outcomes not hours that produce files.”
We gotta get over the notion that it’s all about time. It’s not anymore.
Halloween Is Coming. Be Afraid
D&AD made one final point that is on everyone’s mind in legal. How do we protect the future of what we do when we can no longer train young lawyers the easy way: by giving them work. D&AD asks the very legitimate question whether AI will cause us to lose the tasks that teach:
The tasks being replaced built something. Layouts, first drafts, mock-ups, research and iteration build the instincts that matter later. Repeating that work over time is how juniors became seniors. The repetition was the curriculum.
But there is another and even more worrisome danger lurking, says D&AD. Since AI can now do the work, as one vendor recently put it, of a senior associate, why do we even need any junior lawyers anymore? But if that pipeline shrinks, you stop producing experienced lawyers. The lawyer who can call bullshit on AI outputs if need be. And one thing is certain: today’s senior experienced lawyers aren’t going to be around forever.
Not to mention the fact that, in D&AD’s words: “Juniors bring cultural proximity, fresh thinking, and the insight that comes from not seeing the world the way the industry does.” That’s something sorely needed in legal. That’s what spurs creativity.
Think of it this way. If I’m trying a case to a jury that’s mainly made up of Gen Zers, it might be nice to have a Gen Z person around. A person who can help me tailor an argument that will resonate with them. I would be hard-pressed to do that on my own.
There Are Worse Things
But there is something worse than being scared. Neither D&AD nor anyone else has the answer to the training problem. Sure, we can blather on about using simulations etc. to provide the training that doing the tasks used to provide.
But that does not solve the real problem. The real issue is why hire the junior associate in the first place. And even if you do, who is going to pay for the training of that associate? If we continue to base our pricing on time and not outcome, certainly the client won’t. And if we continue to focus on hours and end of the year profits, it’s going to be hard to convince our partners to incur that expense.
Always before, we had it easy. Our juniors could learn by doing the work, and we would be paid for their training. With AI, those days may be gone. Who is going to eat the cost of the training now?
It’s Time to Get Creative
Hard questions. Even harder answers. But it’s why reports like that of D&AD need to be read. Despite AI, in many ways we are a profession still doing things like we always have. But the D&AD report makes it pretty clear we aren’t going to stay in our comfort zone much longer.
So, we better get creative. Before we forget how.
Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law, and the practice of law.
The post Creativity In The Age Of AI: A Lost Art? appeared first on Above the Law.
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