With the rapid development of Gen AI and AI tools, there is also the ongoing hand-wringing over what these tools may mean for lawyers. Often, the consternation isn’t about how these tools might change the practice of law (where it should be), but on how much work (aka billable hours) AI might replace.

The reality, of course, is, as with most every other disruptive technology, the fears ignore that new work will be generated by the technology; work that doesn’t exist now or can’t be done. Rather than shrinking the workload, AI may dramatically expand the range and amount of viable legal claims. From mass torts to class actions, AI and automation is systematically lowering barriers and increasing legal work.

ATMs

The classic example of the more likely impact of technology on work is ATM machines. When ATMs first came on the market, there was a great hue and cry that these machines would replace banks and bank tellers. But instead, ATMs made it cheaper to build banks and actually increased the number of bank employees. The same was true for email and the internet, by the way.

AI and Litigation

Just last week, I wrote about how technology is propelling an increase in mass tort litigation and the need for more lawyers on the defense side. The gist of my article was that technology enhances the ability to ferret out and assert claims that might otherwise have gone unnoticed, thanks to its speed and scale.

This spring, I also wrote about a presentation by Zach Abramowitz in which he postulated that technology and automation were enabling plaintiffs lawyers to bring more cases, resulting in more, not less work across the board. It’s in part an example of Jevons Principle: as technology reduces the cost of a service, demand for that service increases. Lots of people have legal issues that go unresolved because the cost of hiring a lawyer exceeds the traditional value of obtaining a solution. Bring down the cost and many of those claims will be brought.

Surveys of in-house counsel echo this belief: that technology will lead to more, not less, legal work, as I previously reported.

Class Actions and AI

And just last week, I came across yet another set of technological tools that will similarly impact class actions. The tools are being offered by two companies, Darrow and Rain, and promise to assist lawyers in identifying potential class actions. Class actions typically require that the common issues of the members of a potential class predominate so that litigating them in one proceeding makes sense.

So if you are looking to find a class, you previously had to do a lot of research. You had to identify a particular issue — say, a medical device that caused harm to someone. Then you had to painstakingly research how many others had used the device and suffered similar injuries. And be ready to deal with a whole host of potential non-common issues.

It was hard work and time consuming. And for claims that might not generate the greatest liability, the work required was often simply not worth the potential return. Layered on top of this was the fact that to succeed, speed was important. While it’s not necessarily always true that “first to file” class action lawyers and plaintiffs achieve the greatest success, it certainly doesn’t hurt. In many ways, it’s like the gold rush scenario of years past: the first one to strike gold and file the claim often has a real advantage.

The result: it’s quite possible that many potential class actions never get discovered because the time and energy required to find them is too great. This was especially true for claims that didn’t get the same publicity or notoriety as the high-value headline cases.

Moreover, the most lucrative class actions often would fall into the hands of those well-heeled plaintiffs firms that have the resources to find and manage the cases. Tools like those of Darrow and Rain open up the market for other firms, increasing competition, which is not a bad thing.

The New Tools

These tools scrape the internet for consumer complaints, social media posts, and government data bases looking for areas where there might be sufficient common interests and issues to support class claims, particularly in the areas of privacy, price fixing, labor, product labelling, and securities fraud, according to an article in Law.com by Amanda Bronstad. Other areas where these tools can be useful are in the pharmaceutical and environmental field.

The Darrow and Rain tools analyze mounds of data in various fields and then compare them in ways that suggest both an injury and potential liability. By looking for patterns, the tools can then identify situations that have common issues. For example, it could show a potential correlation between cancer rates, uses of chemicals or certain drugs, and social media commentary. These correlations could prompt a resourceful plaintiffs lawyer to launch a deeper investigation into situations they might have otherwise overlooked. What once took weeks or even months, now takes minutes.

Just as those tools that enable lawyers to generate and manage individual claims more efficiently have led to more claims being brought, the same phenomenon may happen with class actions.

The Defense Side

Tools like this are valuable not only to plaintiffs lawyers but also to in-house counsel and enterprising outside litigation attorneys. If in-house lawyers can spot patterns that might trigger future class actions, they can take steps to mitigate harm, build defenses early, and either nip the cases in the bud or be better prepared to defend them. Outside counsel might be better positioned to spot trends across lines of businesses and flag the next potential class action, advising their clients in advance (and of course having a leg up to get the business if it turns into a case).

The Future

Several years ago, there was a famous commercial which showed a group of startup founders watching the internet for the number of orders of their product being placed upon launch. At first, they were elated as the number of orders surged within minutes. That elation quickly turned to panic as they watched demand skyrocket beyond their capacity to keep up.

The same may be true for litigators. We’re going to see more tools that enhance the opportunity for claims and cases to be brought that couldn’t be brought before. For litigators, the question may not be whether AI will reduce work. The question may be how we are going to get all the work done.

As the former T. Rowe Price CEO Brian Rogers once said, “Statistically speaking, the world doesn’t end that often.”

So it goes for litigators.

Stephen Embry is a lawyer, speaker, blogger and writer. He publishes TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law, and the practice of law.

The post AI Won’t Replace Lawyers — But It Will Give Them More Work (And The Tools To Handle It) appeared first on Above the Law.