Driving Up Costs: The AI-Empowered Litigant

Rightfully, much has been written on the perils of attorneys using artificial intelligence. Court orders admonishing lawyers for citing hallucinated cases have circulated widely in the legal community, yet little attention has been paid to what may already be the greater concern: the pro se litigant using generative AI. 

AI certainly increases access to justice, and certain industries — such as financial institutions — have seen a stark increase in pro se complaints. These filings are often misguided, ill-informed, or even frivolous. But no matter how frivolous, defendants must still respond to preserve their claims, defenses, and legal positions. In many instances, this keeps a defendant on a hamster wheel — consistently responding to and fending off additional filings. 

Although comprehensive data showing the impact of the AI-empowered litigant is not yet available, undoubtedly it is driving up the costs of defense and creating a backlog in the courts. Time will tell how the legal system responds, perhaps through procedural reforms or by narrowing the leniency typically extended to pro se plaintiffs. Some courts have already begun requiring AI certifications, mandating parties to attest that no generative AI was used in preparing a filing. 

Until the courts and rules adapt to this emerging phenomenon, defendants should look to leverage existing procedural tools to streamline litigation, contain costs, and address the evolving impact of AI on litigation strategy.