A significant barrier for consumers to access litigation, Aptum managing director Nigel Evans mused, is the cost of having to pay a lawyer to provide the knowledge and advice necessary to run claims. Generative AI, he said, makes complex information more accessible.

“GenAI is therefore likely to make litigation more accessible to consumers, and it will therefore result in more consumers having the confidence to start claims without lawyers. Given the apparent level of unmet demand, there will be more claims, particularly smaller claims,” he said.

This might be just what’s needed, Evans continued.

“Any development that provides efficient and speedy access to just outcomes should be welcomed,” he proclaimed.

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“The lawyers’ monopoly on institutional expertise to resolve legal disputes is supposed to serve consumers – if there are alternatives that improve outcomes for consumers, they should be embraced, even if that changes the role of lawyers or, with respect to small claims, excludes them from the process.”

Herbert Smith Freehills partner Jason Betts, and McCabes managing principal Andrew Lacey, agreed that AI can and will increase access to justice.

Betts noted it can “reduce some of the barriers to litigation that presently exist in the Australian system”, and Lacey said it can also “assist with resolving disputes more quickly, avoiding the need for litigation”.

Moreover, Ironbridge Legal partner Trevor Withane pointed out: “It is unlikely we will see a flurry of spurious and unfounded claims draining courts’ resources, as existing safeguards including summary disposal for frivolous and/or vexatious cases, will most likely be enlivened.”

Increased efficiency

It is “absolutely certain”, Betts declared, that GenAI will impact complex commercial litigation in Australia.

“GenAI can make things a lot more efficient by partly automating routine tasks, including (increasingly) aspects of document review and basic legal research. Lawyers will spend more time on the strategic parts of cases, which could cut down on the time and cost involved in expensive complex litigation,“ he explained.

“Creative thinking and bespoke, sophisticated advice is not on the cusp of being replaced by GenAI – but greater level of efficiency in generating that advice is on the way,” Betts noted.

If GenAI does see a rise in litigation, Lacey said in support, “the upside is that GenAI tools will also be assist us in dealing with the increased volume of work by using them to improve the efficiency of work required such as document review, preparation of summaries and chronologies, and so on”.

Risks and types of matters

Of course, as AI improves – and, with it, efficiencies in the running of litigious matters – so too will the risks.

Betts said: “GenAI brings real concerns about data privacy and the ethical use of AI, especially when dealing with sensitive information or matters that require unique approaches that aren’t able to be ‘learnt’ from historical web data.”

Lacey added that while it will depend on how publicly available tools are used, what specialist tools are developed and what AI regulation is in place, increased litigation will likely be brought in a range of areas, and which concern the fairness, legality and enforceability of any AI-driven decisions or AI-generated content.

In the intellectual property space, Withane outlined: “We are now likely to see more breach of copyright cases in the wake of the Thomson Reuters v ROSS Intelligence case last month, where the court held the AI company breached Thomson Reuters’ copyright.”

Professional negligence will also see increases, he continued, “against doctors who use AI and misdiagnose patients or solicitors who use AI to draft a statement of claim which omits a fundamental element of the cause of action”.

Elsewhere, Withane pointed out that “as more individuals and companies use legal generative AI tools marketed as “DIY” to create documents, such as service agreements and liability waivers, without the oversight of a skilled lawyer, that may not be fit for purpose, litigation is likely to ensue”.

End results

Withane added that, while AI tools look likely to cause an increase in litigation, they should also make litigation easier to manage, and individual cases less time-consuming to undertake.

“So, in the end, it might be a score draw,” he mused.

Either way, if GenAI can help lawyers rethink institutional responses, and if it can help consumers understand and navigate legal complexity, then it should be embraced, Evans posited.

“If that results in more claims, and it is accompanied by a level of dysfunction and adjustment as we learn to responsibly use GenAI, then that is likely to be a price worth paying to reduce the inequity that barriers to access currently perpetuate,” he concluded.