Can AI replace a Solicitor?

Can AI replace a Solicitor?

Artificial intelligence (AI) is becoming more prevalent across all industries, and the legal sector is no exception. AI can offer instant answers, low-cost support and simple explanations of legal issues, which may make it attractive to anyone considering bringing or defending a case without a solicitor. However, using AI as a substitute for proper legal advice can create significant problems. Litigants in person are generally held to the same procedural standards as represented parties in court proceedings, and being poorly advised by AI is unlikely to provide any excuse or leniency for any mistakes. Where reliance on AI unreasonably increases the parties’ costs, it may also lead to adverse costs consequences.

The dangers of relying on AI-generated legal research

One risk with AI is that it can ‘hallucinate’ inaccurate information or sources. It goes without saying that the court takes a very dim view of being provided with case law or legislation that does not exist. This is not a fleeting concern: there are numerous, well-documented cases where parties have presented hallucinated cases to the court and faced serious consequences for doing so. Even when AI refers to a real case, it has been known to alter the facts of that case or draw the wrong conclusion from what the case actually determined. The danger for litigants in person is greater because they will generally not have access to the legal research tools needed to check the accuracy of AI-generated information and may be more inclined to accept it at face value.

A recent example is Harber v HMRC [2023], where a litigant in person relied on authorities that could not be found in existing case law. Although the litigant was not penalised in that case, the judge expressed concern about the time and costs wasted by reliance on non-existent authorities. The case illustrates why AI-generated legal research should always be independently checked before it is used in proceedings.

AI systems also cannot be relied upon to draft pleadings in a manner that the courts will find clear and accessible. They often produce wordy and lengthy documents, which may look persuasive but will not stand up to scrutiny before a judge (and it is quite obvious when pleadings have been drafted by AI).

The risks of using AI to assess your case

Another potential issue with using AI as the sole source of legal advice is that AI only responds to the prompts it is given. Human input remains important. AI is also designed to be engaging and affirming, which means it can reinforce a user’s existing view of their case. That risk is increased where a litigant describes their position in the most favourable terms. The result may be a false sense of confidence, with AI suggesting that a case is stronger than it really is. AI responses can also appear persuasive because they use confident language and legal vocabulary. This may encourage litigants in person to pursue weak claims or defences, sometimes all the way to trial. The result may be not only losing at trial but also receiving a substantial adverse costs order. 

The usual rule in England and Wales is that costs follow the event: in other words, the loser pays the winner’s legal costs. Even in relatively straightforward cases, those costs can be significant and can easily run into tens of thousands of pounds.

AI cannot replace legal representation

Another important factor is that AI can only go so far. It cannot provide advocacy. Litigants in person may therefore wish to instruct solicitors or a barrister to argue their case before the judge at trial. Reliance on AI in that situation can be a false economy as the solicitor or barrister will need to spend time reviewing the entire proceedings and, in some cases, seeking to amend or alter the pleadings to put the case in better order. The cost of doing so may not be far removed from the fees that would have been incurred if they had been instructed from the beginning. If the solicitor’s appraisal of the claim or defence is poor, this is no doubt going to be much harder to hear shortly before trial when the costs risk has already been incurred. 

It is also worth pointing out that, unlike regulated solicitors, AI has no professional duty of care to the user. If incorrect advice is given, you cannot sue or complain about that advice as you could if the advice been given by a solicitor.

In summary, while AI can be a useful tool, it should not be seen as a replacement for obtaining proper, early legal advice from a reputable firm of solicitors. Typical AI tools are not designed to give legal advice; they are designed to be helpful assistants. They will not give a realistic appraisal of the merits of your claim or defence and, in the worst cases, may even hallucinate authorities that suggest a claim is stronger than it is.