When you are in high school, you learn to differentiate between what happens in your “grade,” versus what happens in your “class,” or homeroom. While you share a good bit with those in your grade, you also take it for granted that the intense dramas that play out in the confines of your class are only appreciated to their fullest by your homeroom mates. Put another way — and in line with my newfound penchant for maritime metaphors — while your grade may be the equivalent of an aircraft-carrier strike group, your class may be one of the particular ships. And when there is a fight on your ship, the other sailors in the carrier group may hear about it, while you and your crewmates are the ones living it, with all its messiness and repercussions. I was reminded of this dynamic when it comes to the current scuttlebutt around a prominent Supreme Court advocate’s TED Talk about his winning argument in the “tariff case.” From a Washington Post opinion (hit?) piece, to an academic’s claims that the advocate in question’s TED Talk “performance was a complete and total embarrassment,” to the fact that TED Talk itself with over 143,000 “plays” to date is a popular one — the chatter and critiques have leapt from the “class” of Supreme Court devotees to the legal industry “grade” and beyond.
I don’t have a personal stake in whatever debate may be brewing, especially as it relates to whether the TED Talk was a good idea poorly executed, a bad idea performed perfectly, or somewhere in between. If I were inclined to Chinese aphorisms, I might lean on some saying about tall grass getting cut down first as an explanation for some of the rancor, but I think there is a more important conversation that this episode should kickstart in earnest. Before we get there, however, I would like to note two things. First, I heard a keynote from the SCOTUS practitioner in question at a conference last year and enjoyed it, particularly with respect to his celebration of his teammates and the value of preparation in getting to the favorable result that was achieved. Second, I know a lot of people in various wholesale businesses that have gotten nauseated over the past few years on the tariff roller coaster — and for them the promise of refunds is most welcome news. With those two things in mind, I think we are best served going forward focused on the other thing that seems to have made some people very uncomfortable about the TED Talk, namely the exultation of the role of AI in the preparation for the oral argument in the tariffs case.
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In the past, I may have shared in that discomfort. Now, informed by the increased role of AI in my practice and my life, I place myself in the camp of those for whom the proper use of AI as a tool to assist in a lawyer’s delivery of services to clients is well-nigh an obligation. Maybe not yet an ethical one, but one that already rises to a level where a client should get the benefit of their lawyer’s use of AI on a number of fronts — whether in terms of more effectively organizing and handling the business of one’s practice, to using AI responsibly to help sharpen and deliver more effective legal services, all the way to helping prepare for a Supreme Court argument. If clients are seeing their businesses impacted by the rising effectiveness and reach of AI, why shouldn’t their lawyers? And if AI is already advanced to the point where it can anticipate questions that a lawyer can get at oral argument from the bench, how can an advocate willfully ignore the edge that incorporating such a tool into one’s preparation can provide? It is not like we get bonus points for doing legal research in the law library using books, for those who remember what that was even like.
Because law schools have already started to get on board with incorporating AI tools into their curriculums, it is not surprising that one of the uses of AI being incorporated into legal education is oral appellate advocacy support. Or that the TED Talk discussion of the use of Harvey has led the company to spotlight in a recent blog post how its new Harvey Moot tool will be offered to law students so that they will have “the chance to workshop real life examples with the same tool,” used to prepare for the Supreme Court tariffs argument. Given the pace of how quickly ideas of how to use AI to support legal practice are moving, we are probably only a short time away from a tool that will allow patent litigators to prepare for Markman hearings with AI assistance. In that scenario, we can expect that the AI will have digested every federal circuit opinion on claim construction, supplemented by every Markman opinion and argument transcript for the judge before whom one is appearing. Would anyone argue that such a tool wouldn’t be valuable? Or that an attorney with access to such a tool that deliberately chooses not to use it may be doing their client a disservice?
Ultimately, the current kerfuffle about the meeting between TED and Harvey only serves to illustrate the immediacy of the changes that AI is already bringing to the practice of law. On the IP side, the speed and effectiveness of AI-based tools to support an IP lawyer’s practice have expanded rapidly in just the past few months. The challenge — and opportunity — that AI presents is one that we all must rise to, to the best of our abilities. Time to prompt away.
Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.