Illinois Supreme Court AI policy offers caution with a side of clarity

The use of generative artificial intelligence (AI) by litigants hasn’t exactly been embraced by courts nationwide. Instead, sensational headlines about hallucinated case citations have led to knee-jerk rejections of the technology by many judges, even when the root cause of those mistakes was attorney competency issues. This pattern of restrictive responses highlights the broader challenge faced when balancing innovation with accountability in the legal profession.

Like many of the emerging technologies that preceded it, AI was not embraced with open arms by our judiciary. Instead, it was met with suspicion and trepidation. Many judges banned its use by litigants, and others require full disclosure of all AI tools used in the preparation of court filings.

The problem with these extreme responses is that they establish unrealistic standards that won’t withstand the test of time. AI is advancing exponentially and is already embedded in many popular legal software programs, ranging from legal research and law practice management tools to document management and legal billing platforms. As a result, legal professionals are already producing legal work using GAI and may not even realize it. Accordingly, penalizing them for doing so is counterintuitive, at best, and unfairly punitive, at worst.

Fortunately, the tide seems to be turning with the issuance of a new, progressive court AI policy by the Illinois Supreme Court. The policy went into effect on January 1st and provides a judicious approach to the incorporation of GAI tools into the workflows of legal professionals, including court personnel.

In the policy, the court wisely acknowledges the inevitability and unprecedented speed of AI adoption, along with the benefits and challenges it presents: “The integration of AI with the courts is increasingly pervasive, offering potential efficiencies and improved access to justice. However, it also raises critical concerns about authenticity, accuracy, bias, and the integrity of court filings, proceedings, evidence, and decisions. Understanding the capabilities and limitations of AI technology is essential for the Illinois Judicial Branch.”

Importantly, the court advises that judges take an open-minded approach to AI and its “use of AI by litigants, attorneys, judges, judicial clerks, research attorneys” and should not require disclosure when implemented: “The use of AI … should not be discouraged, and is authorized provided it complies with legal and ethical standards. Disclosure of AI use should not be required in a pleading.”

The court also cautions that it’s essential to fully understand any technology including AI prior to adopting it and that all AI-created output should be carefully reviewed “before submitting it in any court proceeding to ensure accuracy and compliance with legal and ethical obligations.”

Finally, judges were reminded that they “remain ultimately responsible for their decisions, irrespective of technological advancements.” To assist in their efforts to stay apprised of technological advancements, the court provided additional resources for judges, including a judicial reference sheet on AI.

The Illinois Supreme Court’s new AI policy offers a thoughtful, balanced approach to AI adoption in our profession. The court wisely rejects outright bans and unnecessary disclosure mandates, while acknowledging the inevitability of AI adoption.

By highlighting AI’s potential benefits while addressing risks like accuracy, bias, and ethical compliance, it successfully establishes a framework that ensures the ethical and practical adoption of AI without compromising the justice system’s integrity. In doing so, it sets an example for other courts to follow by providing a flexible, forward-thinking roadmap for responsible AI usage in the legal profession.

Nicole Black is a Rochester, New York, attorney, author, journalist, and Principal Legal Insight Strategist at MyCase, LawPay, CASEpeer, and Docketwise, AffiniPay companies. She is the nationally-recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association.