Why Aren't More Judges Using AI?
Despite the Warm Embrace of GenAI by the Legal Profession, Judges Seem Much More Hesitant to use it.
image by Dall-e
Judges have a difficult job even at the best of times, and these do not appear to be the best of times. Texas and Florida each have over 400,000 immigration cases backlogged as of November 2023. New Jersey has struggled with a longstanding judicial vacancy crisis which led to some types of trials being halted altogether, although its senate president said recently that he believes the state is no longer in a state of emergency. The Thomson Reuters 2023 State of the Courts Report indicated the “U.S. court system is facing a perfect storm of delays, backlogs and workforce shortages,”. Although that study is based on a November 2022 online survey of 201 U.S. judges and court professionals. These facts are evidence that judges need help. Yet most refuse the inexpensive, easily accessible help that AI affords.
Impact on Judges of Judges’ Use of AI
The more recent 2024 Thomson Reuters State of the Courts Report stated that only 15% of respondents—judges and court professionals--thought AI can be used in court. Only 9% thought it should be used in court. Yikes. “And much larger portions said the opposite: More than two-thirds (68%) said they are uncertain if GenAI can be used in a courtroom, and 58% said they are unsure if it should be.” Almost two thirds of the judges and court professionals responding (65%) said they were worried about the risks they perceive surrounding generative AI, despite reporting that they were still beset by a growing caseload, hearing delays, and excessively slow modernization in courts.
These statistics are disheartening, to say the least. They are the approximate equivalent of a drowning person refusing to take the flotation device thrown to them by a would-be rescuer. Generative AI could make judges’ tasks much easier. For example, judges could use GenAI to compare a motion for summary judgement against a response to that motion with AI outlining the differences. It could list out the arguments in a motion that received no objection in a response. It could compare separate statements of fact and give a list of discrepancies. It could summarize long motions. It could streamline routine orders, and make drafting more intensive orders easier. AI can significantly reduce the time judges spend on routine tasks, allowing them to focus on more complex legal issues. AI can provide valuable analytics and insights into case trends, helping court administrators make more informed decisions about resource allocation and case management. And that is just a start; the list of benefits from judges’ adoption of AI is longer.
AI tools can help judges manage current or increased caseloads more effectively, potentially leading to faster resolution of cases and improved access to justice for all. But why are they not using AI? One judge told me she would not use AI because she didn’t trust it, and besides, her assistant knew just how she liked her orders. She had her assistant start drafting each for her. My response is, great, then let the JA use GenAI to streamline their work. This would not only benefit the judges, but also the JA and court personnel.
Impact on Judges of Pro Se Litigants Using AI
Last week we looked at what effect AI would have on pro se litigants. Although AI assistance might make pro se litigants’ arguments and motions more understandable,1 well-structured and accurate, it will almost certainly increase the number of legal documents filed. It will likely also increase the number of cases filed. I appreciate that AI assistance will bring pro se litigants far-greater access to legal resources. My hope is that judges will also rely on GenAI to help them cope with the challenges these additional filings will bring, but that hope is slim considering the 2024 Thomson Reuters State of the Courts report.
Impact on Judges of Lawyers Using AI
Lawyers are quickly adopting AI in their practices. As with pro se litigants, AI assistance might make lawyers’ arguments and motions more understandable and concise, but that by itself will have little benefit for judges if they do not also adopt AI.
While I’m on the topic of judges, lawyers, and AI, let me take a minute to pursue a brief tangent. Judges such as Texas District Court Judge Brantley Starr and Judge Michael Baylson, who are requiring lawyers to disclose whether they have used AI in their motions and other legal filings are missing the point. Some judges—apparently Judge Michael J. Newman of the Southern District of Ohio among them—have even prohibited any AI use except for results from legal search engines. Regardless of whether lawyers use AI in their legal work, lawyers are still required to meet certain legal and ethical standards. I agree with Chief Magistrate Judge Helen Adams of the US District Court for the Southern District of Iowa who reportedly said “I don’t think this is any different than relying on an associate or an intern to draft the brief.” Well said, Judge Adams! I also agree with her that courts “shouldn’t assume everything about AI is nefarious and not helpful.” It seems readily apparent that any lawyer who relies on an unproven associate or intern to prepare legal documents without checking their work deserves any blowback—be it sanctions, loss of reputation, or malpractice claims—they receive. We do not need new laws, new reporting requirements or new professional responsibility requirements associated with incorporating AI into our law practice. We as lawyers just need to abide by the ones already in place and check our work. If lawyers fail to meet those requirements—AI or no AI—judges have an arsenal of tools to deal with such failures.
Conclusion
Generative AI is rapidly transforming the legal space. It is affordable, available, and powerful. It is imperative that judges to be aware of how the legal-space’s embrace of AI will affect their roles, and how best to adapt. The integration of generative AI into the judicial process will have far-reaching benefits. In fact, judges stand to benefit more from effectively using AI than lawyers. And they can receive that benefit without having AI make the decisions for them, and without compromising their high ethical and work standards. Because AI is a tool. It should assist, not replace, judicial decision-making.