Texas: A Litigation: Trial Lawyers Overview

How AI is Changing the Practice of Commercial Litigation

For commercial litigators, artificial intelligence is becoming increasingly relevant to day-to-day practice. It can appear in the facts underlying a dispute, documents and data in discovery, and tools used to manage litigation.

The significance of these developments is still taking shape. Courts, clients, and law firms are working through questions about appropriate AI uses, and practices vary considerably. It is too early to say exactly how much AI will change litigation in the long term.

What is already clear is that AI raises practical questions about evidence, discovery, confidentiality, accuracy, and professional responsibility. It is also becoming increasingly difficult for law firms to treat AI as something they can simply ignore. As clients focus on efficiency and the appropriate use of technology, firms that do not develop thoughtful approaches to AI risk falling behind.

AI is becoming part of the factual record

Commercial litigation tends to reflect how businesses operate. As companies use AI in more of their operations, disputes may involve records created by or connected to it.

A case’s factual record could include prompts, AI-generated outputs, system logs, internal policies, and/or records showing how employees interacted with an AI tool. The relevance and discoverability of those materials depend on the claims and defences asserted and ordinary rules on scope and proportionality. But the existence of these materials can create practical questions at the beginning of a case. If an AI-assisted process contributed to a disputed business decision, the parties may need to determine what information was provided to the system, what output it produced, whether that output was reviewed or changed, and what records still exist. Those questions make information governance an important consideration for businesses using AI. Companies may need to consider what information their systems create, what is retained, and whether records can be retrieved if a dispute arises.

Generative AI may also affect the volume and nature of potentially relevant information. Employees can use it to draft, summarise, and analyse quickly. Depending on how a particular system operates, this could create additional records to consider during preservation and discovery.

Not every interaction with an AI tool will be relevant to future litigation, and retaining every possible record may create its own costs and complications. The goal is to understand what is being created and make deliberate decisions about information governance.

Discovery may get faster, but not necessarily simpler

The use of technology in discovery is not new. Litigators have used technology-assisted review and other analytical tools for years. Generative AI may expand the range of tasks that technology can assist with, although its effectiveness will depend on the tool, data, and task.

AI tools may help summarise documents, identify potential themes, and prepare preliminary timelines. Used carefully, these capabilities could reduce the time spent on repetitive tasks and help lawyers work through large volumes of data.

For younger litigators, this may change parts of the traditional case-preparation process. An AI-generated summary can provide a useful starting point, but it does not eliminate the need to review important documents and understand their context. A tool may help identify material for further review, but lawyers remain responsible for determining its accuracy and significance.

Client expectations are also likely to influence adoption. Clients have long focused on cost and efficiency, and the availability of AI may increasingly lead them to ask whether certain work can be performed more efficiently. This does not mean AI will make every task faster or less expensive. Verification, confidentiality concerns, and the limitations of particular tools can create additional work.

Still, firms that do not begin developing the ability to use AI appropriately may find themselves at a disadvantage. As the technology becomes more established, clients may come to view responsible AI use as necessary, not optional. Firms will therefore need to understand where these tools provide genuine value and where traditional methods remain more appropriate.

Reliability still comes first

Courts have already confronted instances in which lawyers submitted filings containing non-existent or inaccurate authorities generated through the use of AI tools. This illustrates a basic point: use of technology does not change a lawyer’s responsibility for work submitted to a court.

The American Bar Association addressed these issues in 2024 in Formal Opinion 512, explaining that lawyers using generative AI must consider existing professional obligations, including competence, confidentiality, client communications, and reasonable fees.

The practical implications will depend on how a tool is used. AI-assisted work that affects a court filing, important factual analysis, or strategy may require careful verification against reliable source material.

Law firms and legal departments are also developing policies governing AI use, although practices are not uniform. These policies may address which tools can be used, what information may be entered into them, and the level of review required.

AI is also becoming a subject of commercial disputes

AI is not only affecting litigation procedure. It can also form part of the underlying commercial dispute.

Depending on the circumstances, disputes may involve contractual rights, confidentiality, intellectual property, data use, or responsibility for AI-generated outputs. The applicable legal issues will depend heavily on the technology, the parties’ agreements, and the conduct at issue.

Contracts involving technology and data may increasingly address the use of AI expressly, including restrictions on confidential information, rights concerning data and outputs, and the allocation of responsibility for particular uses of AI systems.

Older agreements may not address these issues directly, forcing parties to rely on more general contractual provisions and existing legal principles.

The regulatory environment is also developing. In the United States, businesses may need to consider existing federal and state laws that apply regardless of whether conduct involves AI. Requirements vary depending on the jurisdiction and use case, and the legal framework continues to change.

The next phase is likely to focus on governance

It is difficult to predict how extensively AI will ultimately change commercial litigation. The technology is developing quickly, while legal rules and professional practices are still evolving.

For now, businesses using AI in significant processes should endeavour to understand what systems are being used, what information is provided to them, and what records are created. Litigation teams using AI tools should consider confidentiality, accuracy, preservation, and appropriate human review.

Avoiding AI entirely is unlikely to be a sustainable long-term approach if clients increasingly expect lawyers to use available technology to work efficiently. At the same time, adoption without appropriate safeguards creates its own risks. The task is not simply to use AI, but to determine where it can improve the practice of litigation without compromising accuracy, confidentiality or professional judgement.

For litigators entering the profession now, AI may eventually become another established part of legal practice. We are not there yet. Courts are still addressing new issues, firms and clients are taking different approaches, and the capabilities and limitations of the technology continue to change.

The core work of commercial litigation remains familiar. Lawyers still need to understand the record, assess the evidence, research the law, and exercise judgement. AI may change how some of that work is performed and what clients expect from their counsel. How significant that change will be remains an open question.