Two By Fours, Rivets and Artificial Intelligence. CLM’s Construction Claims Take

While AI has penetrated awareness in the larger culture, construction companies have been delving into it themselves in recent years including using it to optimize work schedules, to improve workplace safety, and to keep a close eye on construction sites.
By: | August 31, 2023

It wasn’t that long ago that artificial intelligence seemed the stuff of science fiction. Think of HAL, the fictional AI character in Arthur C. Clarke’s Space Odyssey series.

But the emergence of AI into the greater national consciousness, signified by the introduction in March 2023 of ChatGPT, has many people in the construction industry asking questions about the potential perils and pluses of using the technology in legal cases.

Questions and concerns about AI in the courtroom, particularly for construction cases, and much more will be addressed in a session “No Escaping Artificial Intelligence: Emerging Issues for Contractors, Carriers and Lawyers” at 1 p.m. Sept. 28 at CLM’s Construction Conference.

The round table discussion will be interactive and lively. Attendees will be encouraged to participate in discussions about the adoption of AI in varying degrees in construction-related legal cases.

The panelists will include David Zehner, founding partner of Zehner Trial Consulting, Phyllis Modin, director of senior counsel at Markel Service Inc., Stephen Henning, founding partner of Wood Smith Henning & Berman, and Jay Sever, partner at Phelps Dunbar.

Henning predicts there will be strong interest in the session, and information provided will not be limited to those involved in the construction industry.

“AI is top of mind for everyone right now,” he said. “It is the hottest issue in the legal industry as a whole. Every stakeholder in the litigation process—general counsel, risk managers, law firm leaders–are trying to get their proverbial hands around this issue. The potential for efficiency and cost savings is huge.”

Prepare for Round Tables

CLM’s round table format is intended to spur in-depth discussions, and attendees will be invited to bring up issues related to AI and its uses.

“This particular format allows participants to share thoughts and practice pointers for the group, which elevates the educational level for all. This is not four talking heads, it is interactive and informative,” Henning said.

While AI has penetrated awareness in the larger culture, construction companies have been delving into it themselves in recent years including using it to optimize work schedules, to improve workplace safety, and to keep a close eye on construction sites.

AI also is already being used in the insurance industry in various ways including pre-assessing claims, enabling automated fraud detection in claims using data analytics, routing of initial claims and streamlining administrative processes.

So it’s clear that AI is already making an impact in various industries. And the legal industry is not going to forego the use of AI especially as “the industry is under a lot of pressure to be efficient, cost-effective and to provide consistent, strong results,” Henning said.

At its most useful, AI– or machine learning–finds patterns and deviations in data. It utilizes pattern recognition to sift through mountains of data, which can help identify potential issues or problems much faster than humans can.

Some ways in which AI could be useful tasks related to legal cases include legal research and document review, drafting legal documents, predicting case outcomes, due diligence in transactions, client interaction and support, and for spurring insights and arguments that bolster legal strategies.

“As the technology improves, there will be many ways to make case management more efficient and get improvements in outcomes,” Zehner predicts. “It’s a new tool and we will be exploring the possible ramifications of it in the session.”

Troubleshooting AI

While better case management is one potential outcome, there are glitches and challenges in AI that cannot be ignored.

One case that’s sure to be discussed, and which reflects the potential perils of using AI in the courtroom, will be a case earlier this summer of a New York attorney who used AI to prepare a court filing on behalf of a man suing an airline. Unfortunately, the AI tool invented cases that the lawyer cited in his pleadings that were not real.

“The potential is there for AI to create a documents or cite authority that are inaccurate,” Henning said. “We have to remember the technology is imperfect, and the potential for a bad product or results is real.”

Henning pointed to the New York case, which resulted in “sanctions and national embarrassment” as one that anyone in either the legal or construction industries will want to avoid.

“Citing cases which do not exist in the first instance should have been an easy task to flesh out during the document review, but that apparently never happened,” Henning said.

The Construction Industry Perspective

The panel will include different points of view for those handling construction claims including the perspective of builders who are adopting AI, a claims professional handling construction matters, a lawyer handing all aspects of construction claims through trial and a jury consultant seeing AI being implemented in jury selection.

Another where AI could be used beneficially is in making jury selection faster and more efficient and identifying jurors that would regard a construction company’s case favorably, Zehner said.

“AI could comb through social media and see everything about a potential juror and see if they’d be a good juror for your case,” he said.

Zehner said he can see AI being used to select jurors that “would be more sympathetic to the themes that are prevalent in construction cases such as identifying people who understand that when something goes wrong there are often multiple causes –not one single cause.”

Zehner said he’d like attendees to come away from the session with a better understanding of AI as a tool to be used in their legal cases.

Henning said he’d like attendees be aware of its potential pitfalls and pluses.

“I think whatever is created by AI has to be looked at with a critical eye,” he said. “I don’t think you should believe everything that it puts out there.”

Even with all the talk about AI, Henning does not expect that it will replace lawyers.

“But I do believe lawyers using AI will have an advantage in the future when it comes to drafting documents, pleadings and even in trial,” he said.  “Big picture, exploration and adoption of AI will present big challenges – but also will present big opportunities for creation of efficiencies and successful outcomes.” &

The R&I Editorial Team can be reached at [email protected].

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