Analysis of AI Use in Courts
Originally Published March 14, 2024
As AI continues to transform various aspects of the legal profession, courts across the United States are grappling with the challenges and opportunities presented by this rapidly advancing technology. In response, a patchwork of court orders, rules, and guidelines has emerged at various levels of the judicial system, aiming to regulate the use of AI in legal proceedings and ensure its ethical and responsible application.
By compiling and organizing court orders, rules, and guidelines related to AI use in one centralized and open-source location, this tool aims to help legal professionals, researchers, policymakers, and other stakeholders stay informed about the evolving landscape of AI governance in the courts—facilitating compliance, promoting consistency, enabling research and analysis, fostering collaboration among RAILS working groups and others, and enhancing public understanding.
Note: This initial AI in Courts Tracker published in March 2024 was compiled by RAILS Researcher, Madhavi Nambiar, Duke Law Class of ‘25.
“The use of artificial intelligence software applications has exploded throughout the private and public sectors in the last few years, especially with respect to generative AI applications. The legal profession has been no exception, and the headlines in the last year in particular have included many stories about litigants and attorneys who faced or were subjected to sanctions for having filed court papers prepared by GenAI applications that contained citations to fictitious legal authority, or cited actual cases, but which did not actually support the argument for which they were cited. These were entirely self-inflicted injuries because no lawyer or party should file any court paper without independently confirming the accuracy of the facts and legal authority cited.
In reaction to these lapses, an increasing number of judges and courts have issued a profusion of standing orders, pretrial orders, court rules, general orders, and case management orders that imposed various obligations on litigants and counsel to certify the use of AI technology and the accuracy of their filings. While well intentioned, the sheer number of these orders and lack of uniformity their provisions can cause considerable confusion to litigants and practitioners who may have to appear in many different courts. In this dynamic environment, what is needed is a “one-stop” source for finding all of these orders that will allow litigants and attorneys to make sure they are aware of, and comply with, these court requirements.
The RAILS AI/GenAI rules, orders, and guidelines tracker is that essential tool, gathering in one place all the information that is needed to assure compliance with these requirements. It simply is an essential tool for keeping up with this dynamic landscape.”
– Paul Grimm
Senior U.S. District Judge (retired)
David F. Levi Professor of the Practice of Law and
Director, Bolch Judicial Institute at Duke Law School
In This Chart
Last Updated April 3, 2024
The RAILS AI Use in Courts Tracker contains court orders, local rules, and guidelines from the U.S. and other countries. Each document is classified by its particular characteristics, and the tracker allows for search and filtering capabilities based on factors such as jurisdiction, date, and other key terms. The Tracker includes links to original source documents for further reference. You can also download our raw data for your own analysis.
Of note:
14 Court Orders and Rules refer to “Artificial Intelligence” generally, rather than Generative A.I. specifically.
Six different terms are used to describe AI Use Cases:
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- Prepare
- Generate
- Draft
- Use
- Research
- Create
As of March 14, 2024:
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- 9 Court-Level Orders/Rules
- 19 Judge-Level Orders/Rules
- 7 Case-Level Orders
- 2 guidelines/policy identified in the US Federal and State Courts
Other Resources
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Interested in using an interactive map to explore U.S. court orders and local rules? Check out the Ropes & Gray Court Order Tracker. It also includes helpful color-coded categorization of the different features of each order.
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Are you a Lexis user? Check out the Lexis Federal and State Court Rules Tracker for summaries of U.S. court orders, local rules, and guidelines. You can also set up an email alert to stay informed on updates to the tracker.
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Takeaways
Like all stakeholders, courts are grappling with balancing the potential benefits of AI in legal practice with the need to ensure accuracy, integrity, and ethical use of the technology. The evolving landscape of AI regulation in the courts presents both challenges and opportunities for legal professionals to shape the future of the technology’s role in the justice system. As the legal system navigates the challenges and opportunities presented by AI, maintaining public trust and confidence in the administration of justice will be a key priority in shaping AI policies and practices.
Judicial response to generative AI is evolving rapidly, with a patchwork of orders and rules emerging at various levels of the court system. To be sure, the diversity of approaches taken by courts in regulating AI use reflects the complex nature of the issue and the range of specific contexts and concerns. To date, disclosure of AI use and certification of accuracy are the primary focus of most court orders and rules, signaling the traditional due process values of transparency and accountability
Few of these policies govern behaviors that are not already addressed by existing rules of professional responsibility—e.g. Rule 1.1; Rule 3.3, comment 2; etc. Yet, the resulting lack of consistency in terminology and scope of these orders may create confusion and compliance challenges for attorneys navigating the AI landscape.
In the short term, the varying scope and specificity of court orders and rules related to AI highlight the need for ongoing monitoring and careful attention to compliance. Sanctions and penalties for non-compliance with AI orders and rules underscore the serious implications of improper use of the technology in legal proceedings.
In the long term, the lack of uniformity in court orders and rules regarding AI use may lead to a call for higher-level guidance or standardization to promote consistency and clarity across jurisdictions.
Already there are indications of an ongoing shift from judge-level orders, local rules, and local guidelines towards more comprehensive and widely applicable AI governance in the courts. The trend towards more comprehensive local rules and guidelines suggests a recognition that AI governance in the courts requires a systemic approach rather than a piecemeal one.
More to Consider
As courts continue to grapple with the implications of AI, collaboration between the legal community and technology experts will be essential to develop effective and ethically sound policies.
Ongoing education and dialogue among judges, attorneys, and technology experts will be critical to strike the right balance between innovation and integrity in the administration of justice.
RAILS aims to facilitate opportunities for such discourse. Sign up to participate in RAILS here or propose a Working Group here.