Can I use Gen AI to draft my factum?

 
Can Gen AI draft a factum on its own? Technically, it can produce something that looks like a factum (if prompted correctly). But whether that factum will be clear, correct and compelling is another question altogether.     

A litigator’s goal is to craft persuasive arguments rooted in fact and law. While Gen AI can be a useful collaborator for legal drafting, it cannot replace the creativity and judgment of a lawyer. The outputs from a large language model (LLM) may sound authoritative and cogent, but they are often rote and inaccurate. This is the opposite of what lawyers aim for when drafting.

Below, we outline key considerations for using Gen AI to help draft and explore some of the best uses of this technology for legal drafters.

Key considerations for using Gen AI in factum drafting

Privacy and confidentiality

First, lawyers using Gen AI must maintain clients’ privacy and confidentiality. No client information should be fed into a large language model (LLM) without both client permission and certainty about how that information will be used. Although some AI products allow users to ensure that data remains secure, many LLMs will glean data—including personal and confidential information—to train the model for other external uses.

Quality and efficiency

Second, lawyers should consider whether using Gen AI increases the efficiency of the drafting process. In some cases, checking, incorporating and revising Gen AI’s output can be faster than starting from scratch. But because LLMs generate sentences based on algorithms, not based on facts, they are prone to make factual errors (known as hallucinations). Further, if the data that Gen AI was trained on contains biases, these biases will be reflected in the generated text. Lawyers should therefore consider the trade-off between efficiency and quality; if the output’s quality or accuracy is poor, it may take just as much time (or more) to fix it than to do it oneself.

There are ways to increase the quality of Gen AI’s initial output, including by (a) training the LLM on a database of high-quality precedents, and (b) establishing parameters to ensure consistency with firm standards, but these steps take time to implement and supervise. In many cases, working from a precedent may offer more value than whatever the Gen AI system generates.

It is therefore worthwhile to continuously assess whether Gen AI creates efficiencies for each task by producing accurate and high-quality material, or whether—at this stage—it is more hassle than it is worth.

Judgment and creativity

Finally, lawyers should consider what might be lost by relying on Gen AI to produce an initial draft—even if it will be thoroughly polished and checked by a human editor.

Gen AI lacks two attributes that every good lawyer has: judgment and creativity. Unlike a human author, Gen AI cannot conduct legal analysis or evaluate the best way to tell a story based on the facts and jurisprudence. Its output is—by its very nature—derivative.

Generating small, targeted portions of text may help a human author get started on a draft. But starting from a full draft produced by Gen AI—or even a fully structured outline—is a missed opportunity to think critically about the best way to frame the case and the ultimate ask to the court.

Gen AI as a collaborator for legal writing

Given these considerations, Gen AI is best used collaboratively with—and not as a replacement for—traditional methods of researching, writing, editing and proofing. When used as a tool, Gen AI can help advance a factum draft in several ways:

1. Gen AI for planning:
   • Summarize evidence and cases.
   • Identify details and themes.
   • Create a preliminary outline with headings and subheadings.
2. Gen AI for drafting or editing:
   • Generate small sections of text (e.g., case descriptions).
   • Identify errors and inconsistencies.
   • Rephrase into the active voice or make a sentence more concise.

Yet even these tasks require supervision. Because of its high risk of error and bias, all outputs must be carefully reviewed for accuracy and tone. Litigators should also ensure that any use of AI complies with guidance issued by the relevant court and law society.

Conclusion

While Gen AI can be a useful collaborator for legal drafting, litigators should be thoughtful about whether, when and how it should be used. At a minimum, litigators should be well-informed about the security of the tools they use, and they should directly engage with any source material to ensure that the draft accurately reflects the law and evidence. Beyond meeting these professional obligations, litigators should consider whether—in light of the persuasive power of a good factum—it is worth ceding the pen.