I was a litigator for many years, much of it spent handling mass torts with high stakes. I know how litigation works. I have seen lawyers turn what ought to be straightforward dispute into a bloody war that exponentially increases time and expense. And that was before AI.

I thought about this as I was reading Richard Tromans’ excellent recent piece in Artificial Lawyer, Legal AI vs The Adversarial Incentive. His idea: the more adversarial a legal matter, the more AI’s efficiency gains get eaten up by more work.

I think he’s right, especially in litigation, where the adversity is greatest. And it explains why law firms haven’t fundamentally changed how they work despite AI, something studies by Deloitte and Harbor Global seem to confirm.

The Adversarial Incentive

You would think that AI would reduce the time for doing things like document review and legal research. That it would narrow the focus of discovery. That it would help frame the arguments in a concise way, so you know what’s worth fighting over. In fact, I recently discussed how front-end loading a case, which can now be done much more efficiently, can do all that. And that’s true for some lawyers.

But sadly, not all. Some don’t want to focus the litigation at all. Too many like to practice a case like it’s a holy war. Give no quarter. Bury the opposition. And now we have AI, a technology that lets these guys turn their holy war into a nuclear one. And that encourages the other side to do the same. Presto. More work. Thanks, AI.

Much of our technology is making obnoxious practice so much worse.

What Hath Technology Wrought?

And it’s not just AI. Technology in general has changed how lawyers deal with each other. AI and, indeed, much of our technology is making obnoxious practice so much worse. The time (for the lawyer) and the cost (to the client) that used to limit what we did in cases are no longer much of a factor.

And more than that, the technology is reducing personal interaction. The kind of interactions that head off problems and misunderstandings. Problems and misunderstandings that provide an excuse to be a jerk. We are so enamored with technology that we can’t do anything in any other way.

Phone calls? Waste of time. In-person meetings to discuss the case? Absurd. Associates used to come to me and say, “I’m going to email the lawyer on the other side and ask for an extension of time.” My response: make a phone call. It’s a lot harder to say no to someone on the phone than to say hell no in an email.

And So It Begins

The shift to a personal war and an aggressive tit for tat approach often starts with an email or text or two. About an issue that could have been handled by phone. But the recipient reads it as a little too snarky, intentionally or not. And lawyers, being lawyers, have an extraordinary talent for finding insults where none were necessarily intended.

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