Photo: An artist’s illustration of artificial intelligence (AI). This image depicts how AI could help understand ecosystems and identify species. It was created by Nidia Dias.
The proliferation of generative artificial intelligence (AI) represents a new frontier for the legal profession. This technology offers unprecedented opportunities for efficiency, but it is a dual-natured tool, introducing significant risks and novel evidentiary challenges. This guide provides a framework for identifying AI-generated documents and leveraging that discovery to a client’s advantage.
Identifying AI-Generated Content
Recognizing AI-generated content requires a multi-faceted approach. AI models leave stylistic fingerprints, such as an impersonal, voiceless tone and unnaturally perfect grammar. A key indicator is the “competence gap”: the combination of superficial polish with profound substantive errors.
Perhaps the most critical red flag is the phenomenon of AI “hallucination,” where the model generates plausible-sounding but entirely false information. A legally perilous form of this is the invention of non-existent case law, statutes, or academic sources. There have been infamous cases where lawyers submitted briefs citing multiple fabricated cases generated by AI, leading to sanctions. This signals not just the use of AI, but the incompetent, unsupervised use of it by someone lacking the expertise to recognize the output as false.
The challenge extends beyond text to “deepfake” images and videos. Visual evidence should be scrutinized for inconsistencies like unnatural details in hands or teeth, distorted backgrounds, and unrealistic lighting. While automated AI detection tools exist, they are notoriously unreliable and should only be used as a preliminary screening mechanism, not as conclusive proof.
From Discovery to Advantage
Identifying an AI-generated document is the first step; the next is to leverage it strategically. In litigation, AI-generated evidence faces significant hurdles to admissibility. A challenge can be mounted based on fundamental evidentiary principles of authentication and reliability, as the opaque “black box” nature of AI makes it difficult for the proponent to prove the evidence is what they claim it to be.
Discovering an opponent has submitted a sloppily prepared, AI-generated document containing falsehoods is also a potential breach of professional ethics. Unsupervised reliance on AI can violate core duties of competence, candor to the tribunal, and supervision. This failure can be grounds for a motion for sanctions, shifting the focus from an evidentiary dispute to a matter of professional misconduct and creating powerful leverage in negotiations.
In transactional work, AI-drafted contracts often use generic, “cookie-cutter” language that may be outdated, inapplicable to the relevant jurisdiction, or fail to address the unique risks of the deal. Lawyers also have a duty to counsel clients on the risks of using public AI tools, particularly the danger of inputting confidential information, which could amount to a public disclosure that forfeits trade secret protection.
Conclusion
AI is a powerful assistant, but it cannot replicate the essential human elements of legal practice: critical thinking, strategic judgment, and ethical reasoning. The lawyer’s role is to remain the ultimate validator and guarantor of any work product. In the age of AI, the foundational duties of competence and diligence are not diminished; they are amplified, standing as the essential human safeguards in our new digital reality.
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