The Uneasy Relationship Between AI and Deposition Practice

Esquire Deposition Solutions has referred to the use of AI in legal services as “an ethical problem child”. While AI can provide legal information, it is not capable of providing legal advice. Lawyers are allowed to use information provided by AI, but they remain responsible for any errors that may arise as a result of it.

Continuing legal education sharpens lawyers’ skills. The AI equivalent, training the platform, turns it into an enforcement target. If AI providers offer legal advice they risk being accused of the unauthorized practice of law, a crime in many jurisdictions.

There are two main issues to consider when lawyers use AI: Is the technology being used correctly? Is it being used in a manner that is compatible with a lawyer’s professional obligations?

In a proposed ethics opinion on generative AI, the Florida Bar cautions that attorneys can’t delegate to AI any act that “could constitute the practice of law such as the negotiation of claims or any other function that requires a lawyer’s personal judgment and participation.”

The opinion states that a lawyer must review the work product of AI the same way he or she would review the work of assistants who aren’t lawyers, such as paralegals.

For deposition practice, it would be unethical to pose questions to a witness simply because AI called it appropriate. Using AI to find inconsistencies in testimony, or to suggest areas of inquiry, might be ok, but only if the lawyer can demonstrate expertise in the use of AI and knowledge of its limitations.

These limitations on the use of AI in pre-deposition preparation are necessary to allow sufficient time to check the validity of its suggestions.

Additionally, there is what the article calls “the not-necessarily far-fetched question of whether an AI deposition assistant is allowed to ‘attend’ a deposition.” Several jurisdictions have rules limiting attendance at depositions that may apply.