Has AI Made a Difference to Litigation Strategy?

As artificial intelligence (“AI”) rapidly reshapes industries, its influence on the law and specifically litigation strategy is becoming impossible to ignore. From predictive analytics that assess case outcomes to AI-driven tools that streamline disclosure and legal research, technology is transforming how lawyers prepare for and conduct litigation. For litigators, understanding and leveraging these tools is not just a competitive advantage—it’s becoming a professional imperative. For clients, AI offers more efficient and potentially less costly ways of conducting litigation.

The use of AI is already impacting litigation strategy in England and Wales, in a number of ways:

Document Review and Analysis: One of the most notable impacts of AI is in the disclosure process. Predictive coding, a form of supervised machine learning, has been used to streamline the review of large volumes of documents. This technology allows senior lawyers to train AI systems to identify relevant documents, significantly reducing the time and cost associated with manual review. For example, in Pyrrho Investments Ltd v MWB Property Ltd and others [2016] EWHC 256 Ch, the court acknowledged the benefits of predictive coding, including greater consistency and cost-effectiveness compared to traditional manual review. Newer tools, such as those incorporating large language models, commonly referred to as LLMs, have further enhanced this process by enabling context-rich searches and first-pass reviews without human intervention. The use of AI to assist in identifying relevant information and patterns that might be missed by human reviewers is clear to see; such tools inevitably speed up the discovery process making it more cost-effective and, it can be argued, improve accuracy in the discovery process. However, these tools still require human oversight to ensure accuracy and mitigate risks, such as missing key documents or errors in tagging.

Early-Stage Dispute Resolution: AI has also been integrated into early-stage dispute resolution. For instance, AI-powered chatbots are being explored to provide preliminary legal advice to claimants, potentially assisting in resolving disputes before formal proceedings commence. This aligns with the broader ambition of creating a "digital justice system" in England and Wales, where AI tools can facilitate early dispute resolution and reduce the burden on courts. The extent of AI's role in this area remains under development, with concerns about reliability, transparency, and ethical considerations, such as data privacy and algorithmic bias still being debated. It is important that legal professionals actively work to address these issues to ensure AI is used responsibly and effectively for the benefit of clients.

Predictive Analytics: We are seeing an increase in the number and range of AI platforms and programs that can predict the likely outcomes of cases based on historical data.  Use of such AI assists lawyers to develop more effective strategies and make informed decisions in respect of how to progress a matter through its litigation journey. Whilst the requirement to consider settlement remains an absolute in litigation, predictive analytics will provide data and responses which will help to provide clients with an accurate understanding of the risk associated with progressing their matter to a formal trial in more definitive and real terms.

Legal Research: AI-powered legal research tools can provide more comprehensive and relevant results in a fraction of the time it would take a human. Whilst this comes with a caveat that AI is designed to deliver an answer to the user, and that AI is not programmed to ensure that the answer is accurate or correct so the lawyer will always be required to interrogate the response, the obvious benefit as a result is to free lawyers to focus on higher-level strategic tasks.

Generative AI: Emerging applications of generative AI are being explored for drafting legal documents. This could further streamline litigation processes thus improving efficiencies and reducing costs.

Overall, AI is transforming the legal landscape by enhancing efficiency and strategic decision-making in litigation although as recent legal reports have documented, there is still a significant requirement for output to be interrogated and reviewed to ensure its accuracy. What comes next? Litigation run entirely by AI? The Solicitors Regulation Authority has already announced they have authorised the first law firm providing legal services through AI.

It certainly is an ever-evolving landscape and an innovation which will revolutionise the way in which we conduct litigation in England and Wales.

On Thursday 5 June (4.00pm - 5.30pm) Irwin Mitchell LLP be hosting an insightful panel discussion around AI-assisted technology and alternative funding for litigation and dispute resolution as part of London International Dispute Week.

Head of Commercial Dispute Resolution, Katie Byrne, will be joined alongside Steve Beahan, Head of Commercial LEI; Dominic Tucker, Associate Director at iDiscovery Solutions; Katie Armstrong, Client Development Director at Howden; and Iain McKenny, Founding Partner at Profile Investment.

Please register here if you would like to attend.