CBA Record July-August 2025

AI ON TRIAL: Committee Seminar Spotlight By Alexander I. Passo

A recent CBA Trial Practice Com mittee seminar addressed the use of artificial intelligence in the practice of law. Panelists included practi tioners, a judge, and the Chief Counsel of the Illinois Supreme Court Commission on Professionalism. They shared insight based on their research as part of a task force investigating AI on behalf of the Illi nois Supreme Court. The presenters emphasized that AI can be used within legal practice today—as set forth in the policy issued by the Illinois Supreme Court—to aid in and improve upon the services rendered to clients. All presenters believe that AI is useful, will continue to improve as time progresses, and will be a ubiquitous part of the prac tice of law in the future. But there are caveats. AI is not perfect now and should not be solely relied upon in generating attorney work product, reasoning, or analysis. This is where the well-published blunders of “hallucinated” citations have occurred from attorneys submitting briefs with nonexistent case law. The current analogy for AI is essen tially to consider AI work product to be similar to that of a first draft from a law clerk or junior associate: it is useful as a starting point but will require a consider able amount of review and editing. Highlights 1. Courts checking AI: Some courts, like the 7th Circuit, have signed con tracts with companies that provide AI

tools. While it’s not confirmed that judges or their staff are using these tools to review briefs, it’s reasonable to think they might use them to check whether cases are cited correctly or to spot better arguments. Westlaw and Lexis, as well as other legal software vendors, offer add-on AI capabilities that offer this function. 2. Ethics concerns: There is a concern about attorneys’ ethical duties to clients because AI “learns” through access to collective work product and data. Thus, private client information could be com promised by using AI. But there are functions on the services that can limit the “share-ability” of confidential infor mation. 3. AI’s use of attorney databases: Attor neys can upload their own database of documents and/or information and restrict AI’s ability to use or “learn” from it. This can be particularly useful for first drafts of form pleadings, briefs, orders, letters, and discovery. For example, an attorney could prompt AI to “draft a first set of requests for production for Asminov v. Robot, with our trucking forms,” and receive a first draft almost instantly and then revise as needed. AI has this capabil ity to some extent now. 4. Mass data review: While AI has been used for document review for some time, it can be expensive. General market AI services like Chat GPT are not in a posi tion to replace legal AI software based on proprietary legal databases at this point.

But they can be used to wade through large amounts of language to identify documents or findings that could be useful. For example, an attorney can upload an expert’s deposition and ask AI to identify the pages and lines where an expert testified on certain subjects or made statements. It will then pump out those citations very quickly. This could prove useful at trial for cross-examination on the fly, when abstracts are not handy. The future is here. Will it replace us? Not at this moment. Can it be used as another arrow in our quiver? Most cer tainly so. Panelists included Judge Michael J. Chmiel, Circuit Judge, McHenry County; George S. Bellas, Bellas and Wachowski; and Mark C. Palmer, Chief Counsel, Illi nois Supreme Court Commission on Pro fessionalism. It was moderated by James Campbell of Maune, Raichle, Hartley, French & Mudd, LLC. An on-demand version of “AI on Trial” is available at Learn.ChicagoBar.org. If you are interested in joining the CBA Trial Practice Committee, sign up at www. chicagobar.org (under Committees tab) or email Meredith Loehr at mloeher@ chicagobar.org.

Alexander I. Passo is a partner at Latimer LeVay Fyock LLC and a member of The CBA Record Editorial Board.

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12 July/August 2025