By Chief Justice Mary Jane Theis
Artificial Intelligence, more commonly called AI, is an unavoidable part of our future. AI has already permeated many aspects of our lives, and it is poised to do the same in our profession. AI’s role in the practice of law, however, raises new concerns, as the Illinois Supreme Court has recognized. The Court, through its Judicial Conference, has created an AI Task Force. Here to talk about what the Task Force learned and its Policy on Artificial Intelligence are its co-chairs, Judge Jeffrey Goffinet and Trial Court Administrator Tom Jakeway.
By Williamson County Judge Jeffrey Goffinet and 17th Circuit Trial Court Administrator Tom Jakeway, Co-Chairs, Illinois Judicial Conference AI Task Force
Development of the Policy on Artificial Intelligence was a rigorous process—one of research, deliberation, and consensus building. With representatives drawn from a broad array of professional disciplines, the Task Force marshaled every available resource and sought to leave no possibility unexamined. We drew heavily upon the National Center for State Courts’ online AI Resource Center, ensuring that our efforts were informed by the most current advancements. Members attended numerous educational seminars, and research papers were frequently exchanged, fostering a continual refinement of our understanding and approach. Building upon this collaborative foundation, through months of debate and the crucible of friendly discourse, fundamental principles were forged.
As directed by the Illinois Judicial Conference, existing court rules were examined, their provisions scrutinized to determine whether proposed amendments were warranted in light of the evolving intersection between artificial intelligence and the practice of law.
The Code of Judicial Conduct prompted careful reflection on several important questions. Does the advancement of generative AI give need to comment further or elaborate on the judicial decision-making process? How is the use of generative AI to make a first draft of a decision different from a law clerk producing a first draft of a decision? The Task Force, while encouraging ongoing consideration, untimely concluded that the Code of Judicial Conduct “applies fully to the use of AI technologies” and, as a cornerstone of policy, articulated the following key provision:
“Judges remain ultimately responsible for their decisions, irrespective of technological advancements.”
Rule 137 underwent extensive discussion and was determined to be an established legal authority and framework to address concerns of AI inaccuracy (e.g., “hallucinations”), deep fakes and ever-evolving means to obscure authenticity. Nevertheless, the Task Force suggested the need for ongoing vigilance against the use of AI technologies that jeopardizes due process, equal protection or access to justice and expressly cautioned:
“Unsubstantiated or deliberately misleading AI-generated content that perpetuates bias, prejudices litigants, or obscures truth-finding and decision-making will not be tolerated.”
The Task Force carefully considered and purposefully chose language as not to be misconstrued or otherwise have a chilling effect on the beneficial use of AI. The topics of transparency, disclosure and certification were carefully examined. AI is so ubiquitous in modern life that one cannot always clearly distinguish AI from non-AI. Spell check and word prediction are themselves accomplished with AI. Modern legal research programs are founded on AI functionality and new forms of generative AI assistance tools are ever evolving. Given the ingrained nature of AI in the fabric of technology itself, the Task Force reconciled that:
“The use of AI by litigants, attorneys, judges, judicial clerks, research attorneys, and court staff providing similar support may be expected, should not be discouraged, and is authorized provided it complies with legal and ethical standards”; and
“Disclosure of AI use should not be required in a pleading.”
A deep understanding of AI and advancements of generative AI requires significant expertise, levels of specific expertise of lesser prevalence by those trained in law rather than information system and machine learning information system. The Task Force recognized that individuals need a practical grasp of how the technology works and its potential, especially its ability to produce convincing but misleading evidence, such as fabricated videos, images, and audio. Individuals seeking to embrace technology do not need to be “AI experts.” It was instead suggested that individuals need to have a functional understanding of AI technologies, especially an understanding of the capabilities and limits of a given technology should one choose to use generative AI applications in the formation of legal pleadings or decisions. As expressed in the Policy:
“Prior to employing any technology, including generative AI applications, users must understand both general AI capabilities and risks and the specific tools being utilized.”
AI applications raise real privacy and confidentiality concerns. Understanding that the information one enters into an AI application may, and in the case of public AI applications more certainly will, leave our control and may be used or republished in any manner, the Task Force acknowledged the necessity of safe AI use and provided:
“AI applications must not compromise sensitive information, such as confidential communications, personal identifying information (PII), protected health information (PHI), justice and public safety data, security-related information, or information conflicting with judicial conduct standards or eroding public trust.”
As restated from above, development of the Policy on Artificial Intelligence was a rigorous process – one where all members engaged meaningfully, worked collaboratively, and delivered a thoughtful policy for consideration. The Task Force sought to set forth principles to guide the responsible use of AI into the practice of law, ensuring both innovation and adherence to ethical standards. Our work product is the result of dutiful service, and the full Task Force takes pride in the approval and reception of our deliverables, while remaining deeply humbled by the opportunity to contribute.