I was a litigator for many years, much of it spent handling mass torts with high stakes. I know how litigation works. I have seen lawyers turn what ought to be straightforward dispute into a bloody war that exponentially increases time and expense. And that was before AI.
I thought about this as I was reading Richard Tromans’ excellent recent piece in Artificial Lawyer, Legal AI vs The Adversarial Incentive. His idea: the more adversarial a legal matter, the more AI’s efficiency gains get eaten up by more work.
I think he’s right, especially in litigation, where the adversity is greatest. And it explains why law firms haven’t fundamentally changed how they work despite AI, something studies by Deloitte and Harbor Global seem to confirm.
The Adversarial Incentive
You would think that AI would reduce the time for doing things like document review and legal research. That it would narrow the focus of discovery. That it would help frame the arguments in a concise way, so you know what’s worth fighting over. In fact, I recently discussed how front-end loading a case, which can now be done much more efficiently, can do all that. And that’s true for some lawyers.
But sadly, not all. Some don’t want to focus the litigation at all. Too many like to practice a case like it’s a holy war. Give no quarter. Bury the opposition. And now we have AI, a technology that lets these guys turn their holy war into a nuclear one. And that encourages the other side to do the same. Presto. More work. Thanks, AI.
Much of our technology is making obnoxious practice so much worse.
What Hath Technology Wrought?
And it’s not just AI. Technology in general has changed how lawyers deal with each other. AI and, indeed, much of our technology is making obnoxious practice so much worse. The time (for the lawyer) and the cost (to the client) that used to limit what we did in cases are no longer much of a factor.
And more than that, the technology is reducing personal interaction. The kind of interactions that head off problems and misunderstandings. Problems and misunderstandings that provide an excuse to be a jerk. We are so enamored with technology that we can’t do anything in any other way.
Phone calls? Waste of time. In-person meetings to discuss the case? Absurd. Associates used to come to me and say, “I’m going to email the lawyer on the other side and ask for an extension of time.” My response: make a phone call. It’s a lot harder to say no to someone on the phone than to say hell no in an email.
And So It Begins
The shift to a personal war and an aggressive tit for tat approach often starts with an email or text or two. About an issue that could have been handled by phone. But the recipient reads it as a little too snarky, intentionally or not. And lawyers, being lawyers, have an extraordinary talent for finding insults where none were necessarily intended.
So that generates a snarky response and a reply. And before long, a minor scheduling issue has become a matter of principle. Principle! The most expensive word in litigation after “discovery.”
Pretty soon both sides invest in the fight. A fight that’s more about the lawyers than the clients.
Enter AI
So we turn to our handy AI tools. Tools that can produce a massive number of interrogatories and document requests in seconds. So we whack the other side with that. That’ll show them.
But we forget the tit for tat rule that AI so easily enables. So when your 75 document requests arrive, he fires up his own tool. And sends you 125. The work gets compounded.
Serve me with a request for all my client’s AI prompts and results? I’m going to serve you with one that’s even worse. And you say, “Not fair!!” Opposing counsel is a jerk!” Now we have to go fight over them all. About what’s relevant. So we go to court with motions and march off to hearing after hearing.
Oh yes, motion practice. It’s now also become a personal vendetta. And let’s use AI to get even. It can produce every motion under the sun in the blink of an eye, so let’s file ‘em. Every one. Doesn’t matter if our chances of winning are about equal to winning the lottery. Bury that asshole on the other side with work. It doesn’t cost anything, so why not?
Legal research and case theories? ChatGPT can produce them till the cows come home. And hey, we owe it to our clients to pursue each and every one of them, right?
Depositions? Give me that AI outline, and I will ask everything on it. It only takes seconds to generate the outline, so we might as well use it. Who knows, we might find something new.
And run those queries across all the documents and see what Claude comes up with. It’s worth exploring, right?
All the while, AI is used to write more and more snide emails without anyone thinking through the impact on the other side and what reaction it might cause.
It’s no wonder the exasperated magistrate judge in Warner v. Gilbarco, when faced with competing motions related to the AI discovery both sides (Warner was pro se) demanded, wrote, “In the end, both sides of this dispute seek to obtain each other’s thought processes, while shielding their opponent from discovery of their own.”
It starts with getting lawyers to understand that being a scumbag isn’t the best or most effective way to practice a case
That’s tit for tat.
The Solution Starts with Attitude
So how do we get AI to make litigation cost less and be more efficient? To do the things that have been promised. It starts with getting lawyers to understand that being a scumbag isn’t the best or most effective way to practice a case.
Make no mistake, as lawyers, we have to represent our clients’ interests. But that doesn’t always mean a scorched-earth approach that AI now enables more than ever. In fact, often cases can get resolved for less cost and in less time if the lawyers focus and don’t let their personal animosity take over.
My approach was not to make everything a bloody battle. Some things are worth fighting over, sure. But even then, being objective and professional and adopting an agree to disagree approach worked pretty well at lowering the temperature. The truth is you can’t be objective and see things clearly when you’re mad all the time.
I had some cases with lawyers on the other side who had reputations as the meanest, hardest-to-get-along-with bastards there ever were. I treated them with respect. I didn’t get personal. I didn’t reciprocate. I made the relationship about the case and dispute. I generally got along with most of them pretty well.
And the Clients
And then there’s the client. The person or company that hired you to resolve a legal problem, not to settle arepersonal scores. Not to demonstrate that you’re tougher than opposing counsel. Not to get jacked-up bills because two lawyers were sniping at each other and constantly playing the tit for tat game. Sure, you can try to convince the client it had to be done that way, but sooner or later they figure it out.
Of course, there is the opposite client: the one who says, “We’ve got to go scorched earth. We’ve gotta oppose that extension of time no matter what.” That attitude often lasted about as long as it took for the second monthly bill to hit the client’s desk.
And when that didn’t cool their demands, I felt it was time for a serious talk. If that didn’t work? I walked away. The truth is those kinds of clients often end up not paying anyway.
AI in Its Place. And Only There
And all of this was before AI. What happens when cost and time are no longer governors on what you can do in a case? What happens when cost and time are no longer governors on what you can do in a case? You get the adversarial incentive on steroids.
In the end, the client gets no advantage from your shiny AI tool. They just pay more. Cases cost more. They last longer. Who is hurt the most? The client, the one whose interests you swore to protect. That’s the inherent danger of technology in litigation, and Tromans is right to call it out.
Don’t fall into this trap. It’s not good for your client. It’s not good for your adversary. And it’s not good for you. Fight for things worth fighting for. Use technology in those fights. Keep it in its place. Don’t use it to turn every disagreement into a holy war.
The rest? Life’s too short. Take it from an old dog.
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