AI cannot replace legal-writing expertise.

Legal writing skills will continue to differentiate the best attorneys in the age of AI.

Excellent writing skills will continue to distinguish elite attorneys even in the age of AI. Here are a few reasons why.

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1. Attorneys are personally responsible for ensuring that everything they file accurately reflects the facts and law, so there must always be at least one attorney in the loop when filing briefs. Will any attorney suffice? Not in high-stakes cases.
   
   AI-produced writing can only be as good as the attorney who designs the prompts, checks the facts and law, and edits the output — all tasks requiring expertise. Someone who doesn’t fully understand the law cannot design effective prompts or evaluate the AI’s response. Blind trust in machines isn’t acceptable when a client’s future is on the line.

2. Because excellent legal prose is uncommon, AI models are mostly trained on poor examples. Many legal briefs suffer from opacity, jargon, poor organization, conclusory reasoning, and outdated notions of what it means to “write like a lawyer.”

3. AI models are biased toward preexisting solutions. Complex legal problems rarely have off-the-shelf answers. Even when dispositive rules exist, their applicability and interpretation are rarely self-evident, and they often haven’t been formulated in a way that aligns with the current facts. The best attorneys can devise creative legal solutions while convincingly grounding them in legal authority so they do not seem novel (since arguments that announce themselves as novel rarely succeed).

4. Each disputed issue in litigation involves a unique set of case-specific facts and substantive rules from which the attorney devises a solution. Although AI models can convincingly analyze a problem as described in the prompt, they lack the combination of judgment, background knowledge, awareness of case-specific context, and ability to craft persuasive arguments and narratives that top attorneys offer.

5. Most high-stakes business transactions and disputes are replete with invisible tripwires not considered by AI models. AI models focus on solving the prompt at hand with the help of any background information the prompter remembers to supply. They do not intelligently consider their drafting choices’ medium- and long-term consequences. For example, many statements in court filings can be used as party admissions, and a failure to make an argument may cause it to be waived.

In short, a great deal of deep work and creativity goes into solving the complex problems most likely to be litigated in business disputes. Although nonexperts cannot tell what distinguishes an acceptable brief from an excellent one, the distinctions exist whether or not they are perceived. Judges are more likely to be persuaded by superior briefs.

Attorneys should learn to use AI effectively (as in this example), but AI-drafted briefs cannot compete with the best work of Rushing McCarl LLP and other firms that prioritize writing. I do not expect that to change anytime soon.

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Ryan McCarl is a partner of the business litigation firm Rushing McCarl LLP and author of Elegant Legal Writing (Univ. Cal. Press 2024). For more tips about legal writing and argumentation, subscribe to the Elegant Legal Writing blog and follow Ryan on LinkedIn. McCarl’s book is available on Amazon and Audible.

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