From the Bench: AI in the Courts
Even from the perspective of a sitting circuit court judge, I have observed the fury surrounding the way Artificial Intelligence (“AI”) has been received by the general public. While the intensity of that fury may be waning, practitioners and judges alike must understand that AI will continue to evolve and impact virtually every aspect of the practice of law in Illinois.
Reliable AI tools are available to practitioners (and the Courts), ranging from free Chat applications to more sophisticated programs through private providers at a price. Practitioners will need to weigh the value a particular application may provide their practice—either in the unique functionality to solve a particular problem or by amplifying efficiency by automating document creation and review.
As practitioners increasingly incorporate these tools into their practices, judges are obligated to study them in order to understand how those tools are influencing the legal work product before us. While the bench has tended to be late in adopting new technology over the years, the power of these tools means they will be used by attorneys. On one hand, judges are considering whether and how to formulate guidelines for the use of AI in briefing (or how or whether to handle citation and attribution). On the other hand, the power of AI tools to filter and examine electronic data in discovery will impact how high-volume discovery disputes may be resolved.
In the 22nd Circuit, we convened a panel of judges to work through an Artificial Intelligence Policy and Plan for practice before the Court. In considering the scope of the issue, we noted something that gets obscured in the noise surrounding AI these days: artificial intelligence has been part of the computing we have used in our daily lives for decades. The precise innovation that has captured so much attention is “generative” AI that relies on a “language learning model” (“LLM”). In simple terms, programs like ChatGPT are absorbing and learning the information available to it across the internet to generate organic answers to questions and prompts.
Our Administrative Order set forth the goals of understanding what AI is and then taking the next step to address how it will impact practice before our courts. As we noted, the Judicial Code of Conduct of 2023 calls for judges to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.” Our purpose was to design an Order that is both accessible as well as broad in its scope, encouraging all involved in the project of justice to be mindful of how the role of AI is considered and how the tools are incorporated in the 22nd Circuit. Other circuits and the Supreme Court are encouraged to build upon this framework.
I also include the response to a prompt presented to ChatGPT 3.5.
What is the current state of the use of AI in the courts of the United States?
The use of AI in U.S. courts is evolving, with both state and federal systems gradually incorporating it to enhance efficiency while carefully managing ethical concerns. Various courts are exploring AI's potential in areas like legal research, drafting documents, and case management, aiming to streamline internal processes and assist self-represented litigants. However, the judicial system is cautious about how AI, particularly generative AI, might affect fairness, confidentiality, and decision-making.
In early 2024, the National Center for State Courts (NCSC) released interim guidelines to help courts navigate these challenges. This includes advice on avoiding the use of biased AI tools, safeguarding confidentiality when using AI for research or drafting, and understanding the risks of relying on AI-generated information that may be inaccurate or biased. Courts are also developing guidelines for integrating AI while ensuring ethical compliance, such as avoiding AI-driven ex parte communication and protecting impartiality [sources omitted].
Some courts and legal professionals are already required to disclose the use of generative AI in filings and legal documents. Judges and attorneys are also encouraged to maintain technical competence, ensuring they understand how AI tools work and when it is appropriate to use them [sources omitted]. Despite these advances, there is still a strong emphasis on human oversight to maintain the integrity of the legal process.
This balance between innovation and caution is essential as AI's role in the legal system continues to grow.
SOURCE: chatgpt.com/c/67082aca-0e94-8011-8115-d294ece34749.
Administrative Order No. 2024-23
22nd judicial circuit
McHenry County, Illinois
(Artificial Intelligence Policy and Plan)
WHEREAS, Artificial Intelligence (“AI”) has existed in various forms over the last half century or so.
WHEREAS, over the last couple of years, AI has come into the spotlight of the world with advances in generative artificial intelligence capturing attention and luring folks into environments in which they can expeditiously and economically tap databases to help with various things.
WHEREAS, as in other sectors, the legal community has had to deal with AI to the best of its ability, in that participants engage AI at different levels, ranging from those who create algorithms to drive AI, to those who simply realize AI is impacting a situation in which they find themselves.
WHEREAS, what has become important is that we deal with AI. First, we need to learn what AI is and what is involved with it. Next, we need to learn how to manage the AI which is being used in the environments in which we find ourselves. Lastly, we need to address AI.
WHEREAS, in addressing AI, we need to arrive at rules which govern the use of AI where we are responsible for the forum, as a judge is with his or her courtroom and assignment. As such, judges should consider standing order provisions to address AI.
WHEREAS, caution should be used in developing rules, in that AI is in the community and being used. AI also provides access to justice which is important in helping people engage legal systems and buttress the Rule of Law.
WHEREAS, in addressing AI, participants in a forum should understand the rules and the parameters for using such a powerful tool, as with Rule 137 of the Supreme Court of Illinois which requires pleadings to be well-grounded and not interposed for an improper purpose.
WHEREAS, in addressing AI, professionals should recall that the practice of a profession is a privilege which is heavily regulated, as with the Illinois Rules of Professional Conduct of 2010, which require candor among many other things.
WHEREAS, similarly, the Judicial Code of Judicial Conduct of 2023 imposes obligations on judges to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.
WHEREAS, in the AI world, the landscape keeps changing and evolving, leaving little if any time to catch up; as such, it is incumbent upon the Judges of the Twenty-Second Judicial Circuit of the State of Illinois to engage AI to the extent possible, given current assignments, obligations, and resources.
THEREFORE, IT IS ORDERED that:
- Participants and professionals in cases in this Circuit shall consider the admonitions set forth above and engage AI carefully, especially with regard to the rules which govern the use of AI directly and indirectly.
- The Judges of this Circuit shall consider the admonitions set forth above and engage AI carefully, as with the use of AI in their courtrooms and with their own use of AI.
- The Judges of this Circuit shall endeavor to:
A. Learn about AI;
B. Consider and learn about available legal research tools which utilize AI;
C. Learn how AI can otherwise be used; and
D. Implement Standing Orders which address the use of AI.
DATED: October 9, 2024 ENTERED:
Michael J. Chmiel
__________________________________
MICHAEL J. CHMIEL
Chief Judge
Judge Mike Chmiel is a long-time member of the ISBA, former Chair of what is now its Commercial Banking, Collections, and Bankruptcy Section Council, and one of its current newsletter editors. He serves as Chief Judge of the 22nd Judicial Circuit of the State of Illinois, serves on the AI Task Force of the Illinois Judicial Conference, and has devoted certain attention to AI as a coordinator, presenter, and participant in various programs on AI. He can be reached at mjchmiel@22ndcircuit.illinoiscourts.gov.