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:
Given the limited time and based on the facts provided, the two most important topics to focus on would be:
- 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.
- 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.
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:
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.
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.
The Bot, the Bar Exam, and Entry-Level Law Practice
October 6th, 2023 / By Deborah J. Merritt
Generative AI will transform legal education and law practice in ways that we are just starting to imagine. To stretch our imaginations–and begin thinking about the ramifications for legal education–I decided to feed GPT-4 some of the sample questions that NCBE has prepared for the NextGen bar exam. I wasn’t interested in whether GPT-4 could pass NextGen; that’s almost a given at this point. Instead, I used these questions as examples of the kind of client problems that a newly licensed lawyer might face. How could GPT-4 help that lawyer address those problems?
In this and a series of future posts, I’ll explore that question. Along the way, I hope to develop some insights into how GPT-4 could reshape legal education and the bar exam. Let’s get started with the first problem facing our hypothetical entry-level lawyer.
An Illegal Search?
NCBE’s first sample question is a multiple-choice question centered on a criminal defense lawyer representing a client who has been charged with possession of fentanyl. Check out the question on the NextGen site.
This question follows a new format that NCBE has deveoped for the NextGen exam. It assesses the test-taker’s familiarity with legal concepts without requiring recall of detailed rules. GPT-4 easily chose the correct answers here (A and F). But that’s not particularly interesting given what we already know about GPT-4’s capabilities. Instead, let’s imagine that a new lawyer confronted this problem at work and wasn’t sure where to start. Workplace problems don’t come with multiple-choice answers, so I started a new chat (on a different day) and fed GPT-4 the same problem with these modifications:
- I began the prompt with the words “Imagine that you are a criminal defense lawyer . . . . “
- I changed the call of the question to “What legal topics are the most important for you to research to determine the likelihood of success on a motion to suppress?”
- I omitted the provided answers.
Here’s what GPT-4 advised me:
- Standing to Challenge the Search: One of the most crucial questions is whether your client has standing to challenge the search. A defendant can only challenge a search if they had a “reasonable expectation of privacy” in the place searched. Since your client doesn’t live in the uncle’s house and was not present during the search, you’ll need to determine if they had a legitimate expectation of privacy in the guest bedroom.
- Consent to Search: Even if a search would have been illegal without a warrant, if someone gives the police permission to search, that search is usually considered reasonable and, therefore, legal. Here, the uncle gave the officers consent. You would need to research:
- Whether the uncle had actual authority or the apparent authority to consent to a search of the guest bedroom.
- If the consent was voluntarily given or if there were any issues of coercion, duress, or misunderstanding.
- Scope of the Consent: It’s essential to determine if the search exceeded the scope of the consent given. If the uncle only agreed to a cursory look around and the police conducted a detailed and invasive search of the guest room, then the search might exceed the scope of the consent.
- Exigent Circumstances: You’d need to evaluate if the police are claiming any exigent circumstances that justified a warrantless entry. A mere noise complaint might not rise to the level of an exigent circumstance, but it’s good to be prepared for any arguments the prosecution might raise.
- The Plain View Doctrine: If contraband or evidence of a crime is in plain view and an officer has a legal right to be in the position to have that view, they can seize it without a warrant. Determine if the fentanyl was in plain view when the officers conducted the search.
- The Fruit of the Poisonous Tree Doctrine: If the initial entry or search was illegal, then any evidence discovered as a result of that illegal action could be considered “fruit of the poisonous tree” and might be suppressed.
- State Constitution and Statutes: Besides the U.S. Constitution’s Fourth Amendment, look into the state constitution and any state statutes that might provide additional protections against unreasonable searches and seizures.
- Recent Case Law: It’s crucial to research recent cases in your jurisdiction to see how courts have ruled on similar issues. Case law can give you an idea of how your motion might be received and can be used to support your arguments.
Once you’ve researched these topics, you’ll have a clearer picture of the strengths and weaknesses of a motion to suppress in this situation.
This is an enormously helpful response: It identifies several angles for the lawyer to explore and gives some detail about each one. I particularly like the fact that GPT-4 advises the lawyer to remember the state constitution and statutes; those do provide additional protection in some states. And I like the final reminder to check recent case law. New attorneys (and even more senior ones) sometimes forget that step. At least on this problem, GPT-4 serves as an excellent issue spotter.
Ethan Mollick has described GPT-4 as an intern who is willing to do lots of work quickly and without pay. In this situation, I think of GPT-4 as a group of senior mentors that a new attorney can tap for advice. Some of the advice is better than other advice, and some advice is just plain wrong: Even very distinguished senior lawyers sometimes make a mistake. But as this example shows, GPT-4’s collective wisdom is well worth tapping.
Our new lawyer, of course, still has a lot of work to do. In my next post, I’ll explore what the new lawyer might do next–and how GPT-4 might continue to help.
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