The Bot Labors On: More Help for the Entry-Level Lawyer

October 9th, 2023 / By Deborah J. Merritt

This post is part of a series in which I’m exploring how artificial intelligence (especially the GPT-4 tool available from OpenAI) can assist entry-level lawyers in their work. In my first post I showed how GPT-4 could help a lawyer identify legal issues in a new client problem. The client in this imaginary problem was charged with illegal possession of fentanyl, and the lawyer wants to prepare a motion to suppress evidence of the seized fentanyl. In this post we’ll continue to ask GPT-4 for help with that problem.

I’m Too Busy for All That

When asked to identify legal issues that could support the motion to suppress, GPT-4 offered our hypothetical lawyer a list of 8 points to consider. But an entry-level lawyer might not have time to research all 8 of those points. I followed up with GPT-4, therefore, by asking “Now imagine that you have limited time to prepare this motion. Based on the facts you already know, which two topics are most important to research?” (The facts of the underlying problem appear in the first sample question on this NextGen page.) Here’s how GPT-4 responded:

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Given the limited time and based on the facts provided, the two most important topics to focus on would be:

1. Standing to Challenge the Search: This is fundamental. If your client does not have standing to challenge the search because he lacked a “reasonable expectation of privacy” in the guest bedroom, then any other issues regarding the legality of the search are moot, at least as far as your client’s defense is concerned. Determining whether a guest, who doesn’t live at the residence and was not present during the search, has a legitimate expectation of privacy is pivotal to the success of the motion to suppress.
2. Consent to Search: Given that the search was conducted based on the uncle’s consent, it’s essential to examine the validity of that consent. This involves determining:
   • Whether the uncle had the actual or apparent authority to consent to a search of the guest bedroom. If he did not have such authority, then the search could be challenged as illegal.
   • The voluntariness of the consent. If the uncle’s consent was obtained through coercion, duress, or misunderstanding, then the search might be challenged as a violation of the Fourth Amendment.

These two topics directly address the circumstances leading to the discovery of the fentanyl. Establishing that the search was unconstitutional due to a lack of standing or an invalid consent would be foundational to the success of a motion to suppress.

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Once again, most of this response is very helpful. Within seconds, GPT-4 has focused the entry-level lawyer on the most important issues to address in a motion to suppress.

These two issues, however, are the ones that NCBE identified as correct in the sample bar exam question on which my hypothetical is based. Would a lawyer who had passed that exam need to ask GPT-4 for help? Or could that lawyer rely upon their own memory of search and seizure law?

Many new lawyers would immediately see the most promising issues in this problem, but I would still advise them to check their instincts with GPT-4. The bot can reassure them that they’re on the right track and haven’t overlooked an obvious issue. As I showed in my previous post, the bot will also note issues that are worth considering–even if the lawyer ultimately focuses their motion on these two primary issues. Most important, we’ll see later in this series that knowledge acquired for the bar exam is often woefully insufficient to address client problems. That knowledge might suffice here, but it won’t always.

What Is GPT-4 Talking About?

Just like humans, GPT-4 sometimes misspeaks. The last paragraph of the response pasted above suggests that a lack of standing could lead to a finding of unconstitutionality. That seems inconsistent with GPT-4’s previous responses, as well as with the basic knowledge of standing that a law graduate should hold. Lack of standing might prevent the client from challenging the search, but it would not make the search unconstitutional. If a human mentor concluded their response this way, a new lawyer might follow up to make sure they’ve understood.

It’s just as easy to follow up with GPT-4. “I’m confused by your last sentence,” I told GPT-4. “Does a lack of standing lead to a finding that the search was unconstitutional?” GPT-4 immediately responded:

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I apologize for any confusion. You’re right; my phrasing was imprecise in that context. Allow me to clarify:

“Standing” in the context of Fourth Amendment challenges does not refer to whether the search itself was constitutional or not. Instead, it refers to whether the individual challenging the search (in this case, your client) has the right or “standing” to do so based on their personal expectation of privacy in the place that was searched.

If your client lacks standing, it means they cannot challenge the constitutionality of the search. It doesn’t make the search itself unconstitutional. So, if your client lacks standing, the motion to suppress would fail regardless of any potential Fourth Amendment violations related to the search.

Thank you for pointing that out, and I appreciate the opportunity to clarify.

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This exchange teaches us two important things about GPT-4. First, GPT-4 will make mistakes. In that respect, it is no different from any human that a new lawyer might consult. People misspeak and they make mistakes; so does AI. One of the biggest errors an AI user can make is assuming that AI is infallible. GPT-4 is an incredible mentor, but it is fallible.

Second, it is possible to confront GPT-4 about apparent mistakes–and the new lawyer doesn’t have to worry about offending a more senior lawyer. As the above example illustrates, GPT-4 quickly recognized its error and clarified the information–and no one’s feelings were hurt in the process. Users often obtain the best results from AI by engaging the AI in a conversation.

In my next post, we’ll see how GPT-4 helps our new lawyer gather essential factual information for their motion to suppress.

AI, GPT-4, law practice