Why AI belongs in the litigation process, but not in the judge's chair

In my last article, I argued that the development of legal judgment matters. The profession should be cautious of any technology that removes the cognitive struggle through which lawyers learn to analyse facts, weigh competing arguments and exercise professional judgment. 

That argument has become more immediate following recent comments by Justice Michael Lee of the Federal Court, who has urged courts and litigants to think more seriously about how artificial intelligence can be used in litigation. His comments have attracted attention because they appear, at least at first, to endorse a more ambitious role for AI in legal proceedings. But properly understood, Lee J is not arguing that AI should displace legal judgment. If anything, his comments reinforce the point. 

Speaking in the context of large and increasingly expensive class actions, Lee J has called on courts and litigants to be more ambitious in their use of AI. His focus, however, is not on replacing legal analysis. It is on reducing the vast amount of work that stands between lawyers and legal judgment. 

In a recent Federal Court matter, Lee J observed: 

'Our lodestar should be the use of AI to implement reforms which allow lawyers to spend more time exercising professional judgment and judges to spend more time identifying what really matters and deciding it according to law’. 

That is an important distinction. 

The debate around AI often assumes a choice between efficiency and professional judgment. Lee J's comments suggest the opposite. Used appropriately, AI can free lawyers from low value work and create more space for the work that only lawyers can perform. 

He is not proposing that AI determine liability, assess witness credibility or decide questions of law. Rather, he is looking at tasks such as collating large datasets and synthesising information distributed across thousands of records. 

These exercises are necessary, but they are not where legal judgment resides. 

As Lee J put it: 

'The just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible is not furthered by requiring highly skilled solicitors, or armies of persons working under their supervision, to spend enormous amounts of time performing mechanical tasks of collection and synthesis if technology can perform those tasks reliably and at a fraction of the cost’. 

If AI can assemble the factual record more efficiently, the lawyer's responsibility does not disappear. That is not a rejection of traditional legal skills. It is a defence of them. 

A recent study by the UNSW Centre for the Future of the Legal Profession reviewed 520 cases across ten jurisdictions involving the use or misuse of generative AI in legal proceedings. The researchers identified recurring problems including fabricated authorities, flawed reasoning, defective documentation and the flooding of courts with irrelevant material. 

Yet the study's ultimate conclusion was notably measured: 

'GenAI presents a practical challenge, not an existential threat. With time, education, sensible governance, and clear accountability, the ethical, responsible and productive adoption of AI in legal proceedings, and in legal services more broadly, is achievable’. 

That conclusion aligns closely with the approach advocated by Lee J. 

The report does not argue that AI should be excluded from legal practice. Rather, it repeatedly emphasises that verification, professional oversight and accountability remain essential. It notes that AI can 'assist with many lower level tasks in legal work' when used responsibly. 

Indeed, several of the judicial comments highlighted in the report make it clear that the core problem is not the use of AI itself. The problem is the abandonment of professional responsibility. 

One judge observed that it ‘is not the initial reliance on AI that constitutes the vice in such matters. It is the placing before the Court of false authorities or evidence that constitutes improper conduct and a breach of a legal practitioner's duty to the Court’. 

Lawyers are not paid merely to collect information. They are paid to exercise judgment. AI does not relieve them of that obligation, nor should it. 

If anything, widespread adoption of AI may make judgment more valuable. As information becomes easier to gather, the ability to assess its relevance, accuracy and significance becomes increasingly important.   

The future of the profession should not be measured by how much work AI can perform. It should be measured by whether technology allows lawyers and judges to devote more attention to the tasks that actually require human judgment. 

On that question, Lee J may well be right. The most productive role for AI is not in the judge's chair. It is in the background, helping the profession reach the point where judgment begins.