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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: Fresh off his victory in the Iowa Republican caucuses, Donald

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Speaker 2: Trump spent much of the day in a Manhattan courtroom

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Speaker 2: at the next trial in his crowded legal calendar, this

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Speaker 2: time in a defamation lawsuit by e Gen Carroll, the

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Speaker 2: writer who won a separate sexual abuse case against him

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Speaker 2: last year. Trump has continued to rail against Carol despite

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Speaker 2: that verdict, as he did in an impromptu press conference

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Speaker 2: during the closing arguments last week in the New York

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Speaker 2: Age's civil fraud lawsuit against him.

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Speaker 3: I have no idea who this woman is. I have

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Speaker 3: absolutely no idea. The whole thing is ridiculous that this

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Speaker 3: is even a case. This should never have happened. But again,

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Speaker 3: this is sponsored by the Democrats. That's another case.

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Speaker 2: My guest is Dave Ehrenberg, Beach County State Attorney. Donald

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Speaker 2: Trump continues his tour of courtrooms around the country, like

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Speaker 2: the DC Appellate Court last week. He doesn't have to

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Speaker 2: be in the courtroom, but he is for the very

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Speaker 2: beginning of the trial. So what do you make of this?

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Speaker 2: Is he trying to impact the jury or impact the voters.

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Speaker 4: Impact the voters. This is all about public relations. This

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Speaker 4: case has already been lost. The judge said, we're not

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Speaker 4: going to relitigate the past trial, which said, according to

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Speaker 4: the jury, that Donald Trump committed sexual assault against Egene

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Speaker 4: Carroll and committed defamation against her. So now we're just

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Speaker 4: talking about damages. How many millions in compensatory and possible

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Speaker 4: punitive damages will be assessed. So the only reason why

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Speaker 4: Trump is there, I think, is to try to gain

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Speaker 4: political points, to show that he is being derided as

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Speaker 4: the leading candidate for president. This is the Biden administration

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Speaker 4: doing this, even though that doesn't make sense, and ultimately

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Speaker 4: nothing fuels his magabase more than martyrdom and grievance.

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Speaker 2: I want to talk about what his defense could possibly

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Speaker 2: be here, because the judge has basically cut off every

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Speaker 2: avenue of defense that I can see. He can't deny

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Speaker 2: that sexual abuse happened, or that he believed his statements

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Speaker 2: were true. He can't comment on Carol's prior romantic relationships

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Speaker 2: or the lack of DNA. I mean, what is his

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Speaker 2: defense here?

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Speaker 4: He doesn't have a defense. In fact, I don't think

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Speaker 4: it's a good move for him to try to testify

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Speaker 4: it because if he tries to pull what he did

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Speaker 4: in the New York civil fraud trial in this trial,

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Speaker 4: he's going to get sanctioned. He's going to get cut off.

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Speaker 4: This is a jury trial, this is not a bench

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Speaker 4: trial like the last trial. And you have a federal

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Speaker 4: judge and Judge Caplan who's not messing around judging Goron.

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Speaker 4: A state cort judge in New York gave him a

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Speaker 4: wider latitude, and he allowed Trump to bash the judge

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Speaker 4: and the process and the attorneys. That's not going to

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Speaker 4: happen here. And in this case, he's limited to what

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Speaker 4: he can say, as you correctly pointed out, they can't

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Speaker 4: religate the last case. He can't attack Egen Carroll, and

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Speaker 4: so what is he going to say. He's not going

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Speaker 4: to be able to go on a political rant. So

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Speaker 4: there really is nothing he could say that could influence

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Speaker 4: a jury here. Best, he just not testified at all.

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Speaker 2: So he says he wants to testify. Of course, he

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Speaker 2: said he wanted to testify at the last Egene Carroll trial,

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Speaker 2: So who knows the judge is saying that he can

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Speaker 2: do so if he wants to testify on Monday January

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Speaker 2: twenty second, which is the day before the New Hampshire primary,

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Speaker 2: So maybe.

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Speaker 4: Maybe Well, he had a lawyer the last time this

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Speaker 4: Takapina guy, and Tacopina and Trump split up. They just

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Speaker 4: had a divorce and he's been represented. Now Trump is

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Speaker 4: by Elena Haba, and Alena Habba is gung ho on

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Speaker 4: Trump testifying. The word was that Tacopina did not want

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Speaker 4: Trump to testify. So this is Trump saying, I am

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Speaker 4: going to do it. I am going to show that

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Speaker 4: the whole process is a fraud, but he's not going

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Speaker 4: to be allowed to testify that way. So in the end,

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Speaker 4: I think he just does what he's done before, which

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Speaker 4: is to promise that he's going to testify, but then

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Speaker 4: in the end he does not.

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Speaker 2: So Joe Takapina is a well experienced trial lawyer, so

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Speaker 2: there is the reason why he doesn't want Trump to testify.

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Speaker 2: Alena Habba I don't think has much trial experience at all.

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Speaker 2: And again today she was, you know the same thing

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Speaker 2: that happened in the trial, the New York trial. They

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Speaker 2: seem to be trying to get on the judge's bad side,

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Speaker 2: challenging the judge, and you know, arguing with the judge.

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Speaker 2: I mean, in the trial that ended last week with

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Speaker 2: Judge and Gorn, I mean, it was crazy some of

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Speaker 2: the things that they did and said to this judge

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Speaker 2: who was going to be making the decision without a jury.

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Speaker 2: So I'm not sure about her courtroom tactics.

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Speaker 5: Now.

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Speaker 4: One of the first things they teach you in law

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Speaker 4: school is never upset the person wearing the black robe

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Speaker 4: and wielding that gavel. Big mistake, But yet they keep

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Speaker 4: doing it. And they got away with it with the

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Speaker 4: judge and Gorin because they knew their goose was cooked

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Speaker 4: in the New York civil fraud case, so what do

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Speaker 4: they have to lose? But by attacking Judge and Girn,

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Speaker 4: I think it gave Trump a false sense of confidence

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Speaker 4: that he can do it again. This is a federal judge.

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Speaker 4: We're talking about lifetime appointments, and these guys run their

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Speaker 4: court room like a tight ship. And there's no way

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Speaker 4: that Trump's going to be able to get away with

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Speaker 4: any of this stuff, especially because it is a jury trial.

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Speaker 4: So although he promises he's going to testify, I think

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Speaker 4: this is like other promises where he's promised to testify

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Speaker 4: earlier in the New York civil fraud case, which then

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Speaker 4: he didn't do. Or in the first trial in this matter,

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Speaker 4: he said he would testify and he didn't do. Just

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Speaker 4: like he said he would meet with Bob Muller during

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Speaker 4: the investigation, which he didn't do. And just like he

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Speaker 4: said he was going to have a health care plan

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Speaker 4: that comes out in two weeks.

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Speaker 2: Oh, you're going back far now, but you have a

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Speaker 2: lot to work with. So what's interesting is the Council

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Speaker 2: for Egene Carroll, ROBERTA. Kaplan, express concern in recent days

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Speaker 2: that Trump would attempt to turn the trial into a circus,

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Speaker 2: and she suggested the judge be prepared to hold Trump

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Speaker 2: or his lawyers in contempt of court or issue punitive

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Speaker 2: fines and monetary sanctions. Was that necessary for her or

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Speaker 2: just for publicity? Everyone knows Judge Caplin. Judge Caplin is

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Speaker 2: no nonsense and he doesn't need it, seems to me

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Speaker 2: direction from an attorney how to run his courtroom.

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Speaker 4: I agree it does. Caplin is not going to suffer

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Speaker 4: fools lightly. And I do understand why miss Kaplin, no relation.

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Speaker 4: Eging Carroll's lawyer wanted Trump to say under oath that

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Speaker 4: I will not violate the court's order. But you know what,

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Speaker 4: she also wanted Trump to admit under oath that he

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Speaker 4: committed sexual assault against Eging Carroll. And although the jury

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Speaker 4: found it, in our country, we still don't force defendants

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Speaker 4: to incriminate themselves or to stay certain things like I

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Speaker 4: did it, I'm guilty. So I think she was asking

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Speaker 4: for too much and the judge is not going to

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Speaker 4: go there.

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Speaker 2: What's unusual in this case is you talk about secret juries,

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Speaker 2: anonymous juries. This jury is so anonymous that the judge

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Speaker 2: told potential jurors that if they're selected for the trial,

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Speaker 2: they should use fake names when discussing the case with

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Speaker 2: each other, and they't be permitted to disclose their role

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Speaker 2: to anyone, including family members.

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Speaker 4: Yeah. I've seen anonymous juries before, but I've never seen

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Speaker 4: an order where you can't even communicate with each other

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Speaker 4: using your real name. But it makes sense you want

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Speaker 4: this to be air tight. But it really tells you

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Speaker 4: what kind of political culture we're in now, what kind

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Speaker 4: of country we're in now where you have the threat

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Speaker 4: of violence against your political and legal opponents that's so

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Speaker 4: pervasive that you need an anonymous jury like you do

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Speaker 4: in mafia cases when you are trying a former president

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Speaker 4: and the leading candidate for president in the Republican side.

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Speaker 4: This should never be normalized. The fact that the person

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Speaker 4: who won the Iowa Coxes has to get on a

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Speaker 4: plane and go to a courtroom where he's already been

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Speaker 4: found liable for sexual assault should never be normalized in

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Speaker 4: this country. Well.

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Speaker 2: Also, increasingly judges are being threatened. In fact, in the

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Speaker 2: civil fraud trial before the closing arguments, Judge Angern was

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Speaker 2: also threatened.

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Speaker 4: Yeah, you know, judges get their houses swatted, they get threatened,

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Speaker 4: their families get threatened, and you know, we just seemed

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Speaker 4: to accept that this is not how a functioning democracy

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Speaker 4: is supposed to work. We're not a fascist country, at

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Speaker 4: least not yet, and you're not supposed to threaten your

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Speaker 4: political or legal enemies. But that is what certain elements

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Speaker 4: of the MAGA movement have done. And look, it's not

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Speaker 4: everyone PAI. You have extremists within the movement who think

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Speaker 4: that anyone who attacks the leader needs to be threatened

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Speaker 4: and really possibly even killed, and that is absolutely unacceptable

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Speaker 4: and we need leaders to stand up and say no,

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Speaker 4: this is not to go on any longer.

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Speaker 2: What's curious he has escalated his attacks against Egene Carroll.

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Speaker 2: He's repeated what's already been determined in the last trial

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Speaker 2: to be defamatory. So after the actually it wasn't after

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Speaker 2: the closing arguments. It was during the New York Attorney

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Speaker 2: General's closing arguments. Trump held his own press conference downtown

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Speaker 2: and he repeated that he'd never heard of her before,

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Speaker 2: he didn't know who she was. So I mean, we're

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Speaker 2: going to keep having trial after trial after trial if he.

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Speaker 4: Repeats the information, yes, until the cost of saying these

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Speaker 4: things is so great where he gets hit with such

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Speaker 4: punitive damages that it's not worth it anymore. So one

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Speaker 4: of two things has to happen for this to stop.

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Speaker 4: Either the punitive damages in this case or a subset

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Speaker 4: of the case has to be so great that he

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Speaker 4: decides is not worth it, or he actually gets a

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Speaker 4: political hit from it where his poll numbers drop, and

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Speaker 4: then I think he'll back away from it. But right now,

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Speaker 4: neither of these things has happened. He got fined five

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Speaker 4: million dollars in the first case. That's not enough for

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Speaker 4: him to change his behavior. And he just won the

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Speaker 4: Iowa caucus, So as long as he keeps winning, he's

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Speaker 4: not going to change his behavior.

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Speaker 2: Let's turn to Trump's claim of absolute presidential immunity in

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Speaker 2: the DC Circuit Court and the question that was heard

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Speaker 2: round the country from Judge Florence Pan about whether or

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Speaker 2: not you could assassinate your political rivals and get away

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Speaker 2: with it because of presidential immunity. Do you think that's

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Speaker 2: going to come fast that decision?

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Speaker 4: I do, and you can see by the judges questioning

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Speaker 4: it was just such a no brainer. Where of course

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Speaker 4: a president doesn't have absolute immunity. Of course they can't

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Speaker 4: kill their political rivals. And look, it's not so funny

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Speaker 4: when it happens to the other guy. So if you

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Speaker 4: give Joe Biden this kind of power, he can cancel

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Speaker 4: the election, arrest Donald Trump, and be president for life.

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Speaker 4: So of course they're not going to rule for absolute immunity.

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Speaker 4: Now the question is how long will the decision take.

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Speaker 4: I think it'll be soon. The DC's Circuit Court of

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Speaker 4: Appeals has expedited its review. And then the question is

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Speaker 4: when it's not If when DC Circuit rules against Trump,

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Speaker 4: what does a Supreme Court do? I would bet that

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Speaker 4: they're going to defer to the d C Circuit and

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Speaker 4: deny review and then it's game on. In the election

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Speaker 4: interference case in Washington, d C.

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Speaker 2: I agree with you. I think we're in the minority.

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Speaker 2: I think a lot of you know, legal scholars, legal experts,

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Speaker 2: think the Supreme Court has to take that case, has

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Speaker 2: to make the decision. But they already have so many

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Speaker 2: different issues related to the election coming up that I'm

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Speaker 2: not sure they want to go into another one yet.

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Speaker 4: Right, this is a no brainer. This is not a

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Speaker 4: hard one, and the Supreme Court, i think, would rather

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Speaker 4: deal with other things and it'd be easy. I think

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Speaker 4: the reason why the Supreme Court one of the reasons

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Speaker 4: why they deny their own expedited review, because remember Jack

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Speaker 4: Smith wanted the Supreme Court to bigfoot the d C.

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Speaker 4: Circuit Court of Appeals, and they said, now we're going

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Speaker 4: to let the DC Circuit handle it. I think one

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Speaker 4: reason why they did that was that they were going

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Speaker 4: to defer to the ruling of the DC Circuit, knowing

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Speaker 4: they would deny presidential absolute immunity.

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Speaker 2: Do you think that the decision will just be we're

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Speaker 2: denying absolute presidential immunity, or the judges might have to

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Speaker 2: set out some of the parameters where presidential immunity might apply.

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Speaker 4: Judges generally like to rule on the narrowest issue possible,

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Speaker 4: don't get too ambitious, especially when there's an expedited review.

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Speaker 4: So I think they're just going to deny it here.

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Speaker 4: I don't think they're going to go much further, because

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Speaker 4: you do that, then you open it up to more delays.

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Speaker 4: And this case, the one washing d C for election interference,

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Speaker 4: is the one that's most likely to be try before

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Speaker 4: the election. It's in that sense, the most important case

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Speaker 4: because all the others, I think, with the possible exception

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Speaker 4: of the New York State case on Stormy Daniels, will

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Speaker 4: be tried after the election. So that's why I think

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Speaker 4: these courts want to get started as soon as possible.

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Speaker 2: The judge, Judge Tanya chuck And has not she's sort

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Speaker 2: of put everything on hold, but she hasn't actually, you know,

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Speaker 2: taken it off the docket the March fifth trial. Do

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Speaker 2: you think that there's any way they could meet that

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Speaker 2: if let's say the DC Circuit comes down this week

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Speaker 2: and says no presidential immunity, the Supreme Court says, no,

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Speaker 2: we're not going to review it. How long?

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Speaker 4: Oh, then it's immediate. I think also the DC Circuit

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Speaker 4: will remove the stay the state of the case immediately,

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Speaker 4: and then it goes to Tanya Chuck and Judge Chutkin.

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Speaker 4: She will calendar it. Now it's set for March fourth,

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Speaker 4: I think within sixty days of that is the trial.

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Speaker 4: That's what I have been saying from the beginning. I'm

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Speaker 4: going to stick to my prediction and this case will

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Speaker 4: be decided well before the election. And you see the polls.

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Speaker 4: Even though Trump won pretty handily in Iowa, still a

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Speaker 4: certain second that says if he's found guilty in one

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Speaker 4: of these trials, people would switch their vote away from him.

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Speaker 2: What about your Florida trial down there on classified documents,

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Speaker 2: you have a date for that.

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Speaker 4: It's scheduled going May. It ain't going. Here's the thing,

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Speaker 4: Judge Cannon is slow walking this case. That case in

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Speaker 4: my neck of the Woods is the strongest of all

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Speaker 4: the four cases against Trump. He has no defense, but

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Speaker 4: that case is going to be delayed past the election,

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Speaker 4: and that's a shame.

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Speaker 2: It's great to have you on the show, Dave, thanks

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Speaker 2: so much. That's Palm Beach County State Attorney Dave Arenberg.

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Speaker 2: And now turning to tensions at the border, the drowning

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Speaker 2: deaths of a woman and two children in the Rio

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Speaker 2: Grande River as they tried to enter the United States

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Speaker 2: from Mexico on Friday have intensified tensions between Texas and

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Speaker 2: the federal border officials. US border officials say Texas officers

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Speaker 2: prevented federal border officials from helping them. Joining me is

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Speaker 2: Leon Fresco, a partner at Holland and Knight and the

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Speaker 2: former head of the Office of Immigration Litigation in the administration. Leon,

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Speaker 2: what happened? What do we know happened on Friday because

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Speaker 2: it seems like there were conflicting reports.

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Speaker 1: Well, there were conflicting reports, including one from the Congressman

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Speaker 1: Henry Quayar, who's the esteemed congressman along the border. And

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Speaker 1: so the Department of Justice actually filed a brief and

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Speaker 1: the Supreme Court that actually discussed this issue slightly more.

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Speaker 1: And it seems like there were six migrants that were

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Speaker 1: actually in distress. So the Mexican government reported this to

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Speaker 1: the Department of Homeland Security, and by the time the

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Speaker 1: Department of Homeland Security would have responded, it seems like

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Speaker 1: even if Texas had let them in, three of them

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Speaker 1: would have already been found deceased. Unfortunately, there were two

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Speaker 1: others that were rescued by the Mexican government that presumably

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Speaker 1: would have been rescued by the border patrol. They've been

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Speaker 1: allowed to enter, but there is no dispute that the

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Speaker 1: Texas state officials are blocking this park in Eagle Past,

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Speaker 1: Texas and not permitting the Department of Homeland Security officials

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Speaker 1: enter the park, which the Department of Homeland Security officials

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Speaker 1: say is a violation of their right to enter in

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Speaker 1: times of emergency, that they have a federal right under

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Speaker 1: the supremacy clause to do that.

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Speaker 2: And which side do you agree with? Does Texas have

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Speaker 2: the right or does the Department of Homeland Security have

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Speaker 2: the right.

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Speaker 1: It's clear that if there's any kind of transnational emergency

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Speaker 1: that's happening on the border, that the federal officials have

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Speaker 1: the ability to access the border to be able to

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Speaker 1: respond to that transnational emergency. Where they can't necessarily do

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Speaker 1: things is that they were just patrolling this park and

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Speaker 1: the State of Texas said, this is our park to patrol.

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Speaker 1: The federal officials don't have jurisdiction here. That's fine, but

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Speaker 1: in these situations of an emergency, there's no doubt that

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Speaker 1: the federal government has the authority to enter, and so

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Speaker 1: the Texas government not allowing them to enter will probably

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Speaker 1: lead at some point to some sort of injunctive relief

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Speaker 1: that will then, if it happens again, could lead to

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Speaker 1: contempt of court finding.

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Speaker 2: So Texas Governor Greg Abbitt has been escalating the tensions

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Speaker 2: with the federal government over immigration at the border. Was

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Speaker 2: this part of the new law that's been passed where

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Speaker 2: Texas says that its local officers can arrest migrants, which

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Speaker 2: is normally a job for the federal government.

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Speaker 1: Well, this is part of that overall strategy. The law itself,

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Speaker 1: what it's going to do is it's going to say

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Speaker 1: that if you're not in Texas legally it's a misdemeanor,

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Speaker 1: that you can then be taken to the border, and

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Speaker 1: if you don't actually cross back into Mexico, you can

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Speaker 1: be rearrested again for a felony. And so all of

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Speaker 1: these areas that are being enclosed are part of this

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Speaker 1: overall strategy to be able to have places to take

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Speaker 1: people to along the border and say here are your

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Speaker 1: key choices. Either go back into Mexico or if you

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Speaker 1: try to come back in we will arrest you under

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Speaker 1: the Texas law. Of course, the legality of that Texas

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Speaker 1: law is currently under review at the courts and it's

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Speaker 1: probably going to work its way all the way up

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Speaker 1: to the Supreme Court.

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Speaker 2: So Leon, this is all part of the bigger problem

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Speaker 2: of immigration and the security at the southern border. And

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Speaker 2: in the Iowa Caucuses, that was one of the major

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Speaker 2: concerns of the caucus goers there. What is the status

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Speaker 2: of negotiations over immigration.

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Speaker 1: Well, one of the biggest problems happened in the last

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Speaker 1: few days where House Speaker Mike Johnson said that he

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Speaker 1: thought that there wasn't any legislation that would be able

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Speaker 1: to be created by this Senate group of negotiators that

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Speaker 1: would be acceptable to the House, such that this needed

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Speaker 1: President Trump to be able to come in and be

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Speaker 1: able to solve this problem, and that what President Biden

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Speaker 1: needed to do was just unilaterally act with any powers

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Speaker 1: that he had, but that the legislation to solve the

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Speaker 1: border problem would be too weak if it was the

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Speaker 1: current legislation that's being talked about by the Senate. I

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Speaker 1: don't think that's going to be the last word. I

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Speaker 1: think that's posturing. In many cases I do think the

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Speaker 1: White House wants a deal. The White House is actually

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Speaker 1: brought in all the relevant negotiators and chairmen to speak

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Speaker 1: today at the White House to try to get a deal.

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Speaker 1: The White House very much wants a deal. They're negotiating

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Speaker 1: in areas that make many very Democrats very uncomfortable with

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Speaker 1: regard to what kinds of limitations they're willing to accept

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Speaker 1: along the border. But at the end of the day,

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Speaker 1: it's going to come down to can the Senate pass something?

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Speaker 1: And if the Senate can pass something on a bipartisan basis,

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Speaker 1: then they can make the House look really badly. If

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Speaker 1: they refuse to pass something, then it becomes evident that

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Speaker 1: the House would be the ones blocking progress.

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Speaker 2: There are some areas where the Senate negotiators have come

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Speaker 2: to agreement right absolutely.

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Speaker 1: The Senate has some spots with regards to sort of

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Speaker 1: a re implementation of Title forty two authority, which was

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Speaker 1: the auplority to automatically expel people at the border who

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Speaker 1: don't come in through the ports of entry, who actually

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Speaker 1: try to come in illegally in between the ports of jury,

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Speaker 1: with limited exceptions for very extreme humanitarian cases. Also an

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Speaker 1: expansion of detention for those kinds of people who enter

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Speaker 1: the United States and are waiting for their cases to

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Speaker 1: be heard. But the area that's not yet resolved is

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Speaker 1: there are these thirty thousand people per month that the

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Speaker 1: Biden administration is allowing legally to enter the United States

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Speaker 1: from Cuba, Haiti, Nicaragua, and Venezuela that the Biden administration

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Speaker 1: argues is necessary so that people don't enter illegally, so

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Speaker 1: that people wait in their countries and applied for this program.

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Speaker 1: The Republicans want that program eliminated, and they also wanted

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Speaker 1: to be eliminated that basically, under almost all circumstances that

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Speaker 1: the Biden administration couldn't find someone with urgent circumstances on

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Speaker 1: the border and admit them in legally. And so those

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Speaker 1: two areas are under debate about whether those will be accomplished.

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Speaker 2: There Thanks so much, Leon, that's Leon Fresco, a partner

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Speaker 2: at Holland and Knight. Will Artificial intelligence change the legal profession?

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Speaker 2: Or a better question, maybe just how much will artificial

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Speaker 2: intelligence change the legal profession? In fact, AI has already

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Speaker 2: taken some of the drudge work out of legal work,

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Speaker 2: but a study last year by researchers at Princeton University,

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Speaker 2: the University of Pennsylvania, and New York University concluded that

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Speaker 2: the industry most exposed to the new AI was legal services,

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Speaker 2: and a research report by Goldman Sachs estimated that forty

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Speaker 2: four percent of legal work could be automated. Federal judges

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Speaker 2: have begun implementing checks around the use of AI in

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Speaker 2: court filings by issuing standing orders, and the global head

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Speaker 2: of AI at Ropes and Gray, Shannon Kirk, and her

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Speaker 2: colleague Amy Longo, have developed an AI court order tracker

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Speaker 2: that examines standing orders and local rules on the use

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Speaker 2: of AI in connection with court filings. She joins me, Now, Shannon,

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Speaker 2: before we get to your tracker, tell me what the

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Speaker 2: main concerns of lawyers are about AI.

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Speaker 5: I think it has to really, you know, the concerns

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Speaker 5: when you talk about lawyers concerns regarding AI depends on

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Speaker 5: what practice group you're in, right, So generally I can

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Speaker 5: speak to what I focus on, which is litigation and

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Speaker 5: our concerns with respect to quote AI in litigation, right,

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Speaker 5: and so that runs the spectrum of concerns. One of

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Speaker 5: them would be a concern that we've always had for

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Speaker 5: all litigators at all times, which is how to train

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Speaker 5: our junior classes. That concern is amplified now and we

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Speaker 5: can talk about that if you want with JENAI right.

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Speaker 5: So that's one concern. Another concern that I'm particularly focused

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Speaker 5: on is how sophisticated are the courts and my opponents

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Speaker 5: and regulators going to be when we talk about JENI right.

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Speaker 5: And that's partially why we have the tracker, is tracking

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Speaker 5: how sophisticated and specific and precise everyone is being in

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Speaker 5: the law when we talk about JENAI versus quote this

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Speaker 5: big global scary thing called AI right. Another concern, of course,

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Speaker 5: is how JENI, when it actually is deployed in litigation,

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Speaker 5: will change staffing, will change budgeting, and therefore change how

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Speaker 5: firms are comprised and how we hire and how we build.

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Speaker 5: So there's a lot of concern.

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Speaker 3: You know.

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Speaker 5: I sort of hesitate using the word concern because it

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Speaker 5: implies that I think it's negative, right, I don't. I

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Speaker 5: think that there are some sort of concerning concerning things

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Speaker 5: that maybe some folks would see as negative. But I

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Speaker 5: think that it's all about, you know, appreciating those concerns

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Speaker 5: in the context of how are we going to adapt

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Speaker 5: to all of it? Because we have to.

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Speaker 2: Do lawyers think that this will mean that less lawyers

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Speaker 2: will be needed in the future, because AI will be

437
00:23:46,320 --> 00:23:49,280
Speaker 2: doing some of that work, especially the groundwork or the

438
00:23:49,320 --> 00:23:52,160
Speaker 2: work that you know associates might end up doing.

439
00:23:53,080 --> 00:23:56,960
Speaker 5: Right, I mean, I think that's sort of inevitable that

440
00:23:57,920 --> 00:24:03,200
Speaker 5: there will be for certain functions in litigation less need

441
00:24:03,240 --> 00:24:07,639
Speaker 5: for that junior rank. And so we saw this already

442
00:24:08,080 --> 00:24:11,920
Speaker 5: in the uptick in used. It took in my estimation,

443
00:24:12,040 --> 00:24:15,760
Speaker 5: about ten years in the wider adoption of predictive coding

444
00:24:15,920 --> 00:24:19,960
Speaker 5: right or TAR technology assisted review, et cetera. And so

445
00:24:20,880 --> 00:24:24,600
Speaker 5: when I started out as a junior lawyer twenty five

446
00:24:24,720 --> 00:24:30,480
Speaker 5: years ago, we used to all flog through documents one

447
00:24:30,560 --> 00:24:33,000
Speaker 5: by one by one in a linear fashion. Or we

448
00:24:33,080 --> 00:24:35,320
Speaker 5: used to sit in a warehouse for months going through

449
00:24:35,359 --> 00:24:40,240
Speaker 5: boxes right, and it would take, obviously staffing wise, a

450
00:24:40,280 --> 00:24:43,199
Speaker 5: lot of us. You know, that's a lot of us

451
00:24:43,240 --> 00:24:48,560
Speaker 5: first year, second year is third years. Then around ish

452
00:24:49,080 --> 00:24:53,240
Speaker 5: two thousand and eight, we start seeing predictive coding, We

453
00:24:53,480 --> 00:24:57,840
Speaker 5: TAR one point oh, et cetera. I get my job

454
00:24:58,040 --> 00:25:01,359
Speaker 5: full time as an E diiscovery lawyer in two thousand

455
00:25:01,400 --> 00:25:05,119
Speaker 5: and eight, and what we started to see was a

456
00:25:05,160 --> 00:25:10,520
Speaker 5: reduction in the need for big armies of contract attorneys

457
00:25:10,760 --> 00:25:15,760
Speaker 5: and a ton of firm attorneys doing document review, right,

458
00:25:15,840 --> 00:25:19,680
Speaker 5: so you can just track that. I think with JENAI

459
00:25:20,040 --> 00:25:23,959
Speaker 5: what we will it's inevitable, right, a portion of that

460
00:25:24,119 --> 00:25:28,200
Speaker 5: document review, so that slice of lawyer life of document

461
00:25:28,240 --> 00:25:35,400
Speaker 5: review will eventually transition to prompt and prompt engineers and

462
00:25:36,359 --> 00:25:40,280
Speaker 5: you know, figuring out how to design the query of

463
00:25:40,320 --> 00:25:44,359
Speaker 5: the GENI tool to bring back items that are quote

464
00:25:44,400 --> 00:25:48,080
Speaker 5: relevant or hit a certain qualification. That's going to take

465
00:25:48,160 --> 00:25:51,760
Speaker 5: less lawyers. What you'll need then is to develop the

466
00:25:51,840 --> 00:25:54,800
Speaker 5: expertise in the junior ranks on how to Q see

467
00:25:54,920 --> 00:25:59,840
Speaker 5: that output and what to do with it. Right, long

468
00:25:59,840 --> 00:26:03,679
Speaker 5: way of saying that, this to me is just another

469
00:26:03,760 --> 00:26:09,000
Speaker 5: evolution of that staffing reduction, which means a shifting of

470
00:26:09,040 --> 00:26:11,080
Speaker 5: what we do with our junior lawyers and how we

471
00:26:11,200 --> 00:26:11,720
Speaker 5: train them.

472
00:26:12,160 --> 00:26:18,200
Speaker 2: Is there a general concern among lawyers that opposing counsel

473
00:26:18,359 --> 00:26:22,159
Speaker 2: maybe drafting filings using generative AI.

474
00:26:23,240 --> 00:26:26,760
Speaker 5: You know, I think if you read the headlines, you

475
00:26:26,840 --> 00:26:30,159
Speaker 5: might have that sense that there's this overarching sphere that

476
00:26:30,200 --> 00:26:34,920
Speaker 5: your opponents are doing that. I personally don't have that

477
00:26:35,000 --> 00:26:39,320
Speaker 5: concern when you look at the numbers, right. I've been

478
00:26:39,359 --> 00:26:44,359
Speaker 5: able to track three court orders where lawyers were sanctioned

479
00:26:44,400 --> 00:26:49,919
Speaker 5: for using hallucinations in court filings, and so that's you know,

480
00:26:49,960 --> 00:26:55,679
Speaker 5: those are headline grabbing things that people focus on. In reality,

481
00:26:55,920 --> 00:26:58,920
Speaker 5: do I think or do I think generally we're all

482
00:26:58,960 --> 00:27:02,600
Speaker 5: talking about a concer learned that lawyers out there are

483
00:27:02,600 --> 00:27:08,800
Speaker 5: going to be using hallucinations and false case law. You know, sure,

484
00:27:09,240 --> 00:27:15,040
Speaker 5: we always have concerns that opposing counsel is not exactly,

485
00:27:15,480 --> 00:27:18,800
Speaker 5: you know, citing cases accurately, and so this is just

486
00:27:18,920 --> 00:27:22,080
Speaker 5: more of that, right, whether they're citing inaccurately or just

487
00:27:22,160 --> 00:27:27,280
Speaker 5: citing totally fake cases. You know, it's difficult for me

488
00:27:27,680 --> 00:27:30,680
Speaker 5: really to say that that's an overarching concern because I'm

489
00:27:30,680 --> 00:27:34,000
Speaker 5: at a big law firm, and you would expect our

490
00:27:34,040 --> 00:27:38,399
Speaker 5: opposing counsel in our types of cases to be really

491
00:27:38,400 --> 00:27:42,400
Speaker 5: doing their homework. Because of course, if someone cited a

492
00:27:42,400 --> 00:27:46,920
Speaker 5: fake case in opposition to something I filed or any

493
00:27:46,960 --> 00:27:50,480
Speaker 5: of our lawyers filed, we would seize on that right.

494
00:27:51,520 --> 00:27:55,520
Speaker 5: So what would concern me more and does concern me,

495
00:27:56,000 --> 00:27:59,880
Speaker 5: is access to justice right and making sure that our

496
00:28:00,080 --> 00:28:04,680
Speaker 5: pro say litigants are pro bono litigants. Who have less resources,

497
00:28:05,680 --> 00:28:09,320
Speaker 5: do have access to these powerful tools, but know how

498
00:28:09,359 --> 00:28:12,679
Speaker 5: to use them and know the pitfalls. That is what

499
00:28:12,720 --> 00:28:16,720
Speaker 5: would concern me and does concern me those headlines, those

500
00:28:16,760 --> 00:28:19,440
Speaker 5: scary headlines, and there's really only been a handful of

501
00:28:19,960 --> 00:28:24,359
Speaker 5: people being not very bright and using these tools. They

502
00:28:24,800 --> 00:28:29,879
Speaker 5: don't help us as a legal profession. Make sure that

503
00:28:29,960 --> 00:28:32,960
Speaker 5: there is access to justice and that there are pro

504
00:28:33,040 --> 00:28:38,959
Speaker 5: bono litigants that could responsibly use these tools. Right, it

505
00:28:39,000 --> 00:28:42,120
Speaker 5: creates this fear factor. And then we get to our tracker,

506
00:28:42,160 --> 00:28:44,000
Speaker 5: and you'll see there's a couple of courts that have

507
00:28:44,120 --> 00:28:48,680
Speaker 5: all out banned the use of these tools because I

508
00:28:48,720 --> 00:28:53,080
Speaker 5: think it's in reaction to those handful of headline grabbing cases.

509
00:28:54,040 --> 00:28:58,120
Speaker 2: So, now tell us about the AI tracker you've developed.

510
00:28:59,080 --> 00:29:05,080
Speaker 5: Sure, So the tracker for me, it has two purposes, right,

511
00:29:05,560 --> 00:29:09,600
Speaker 5: For one, it is diagnostic for my role at the firm,

512
00:29:10,120 --> 00:29:12,040
Speaker 5: and then the other piece of it is just a

513
00:29:12,080 --> 00:29:15,920
Speaker 5: practical tool for any lawyer or anybody in court who

514
00:29:15,920 --> 00:29:18,320
Speaker 5: wants to see you know, hey, I'm in the district

515
00:29:18,400 --> 00:29:21,320
Speaker 5: of Hawaii. What do they have any standing orders on

516
00:29:21,800 --> 00:29:26,600
Speaker 5: AI or JENI. And it's meant to be interactive and visual,

517
00:29:26,680 --> 00:29:31,080
Speaker 5: so it's easy to use for that purpose. For my purpose,

518
00:29:32,000 --> 00:29:36,280
Speaker 5: I am the global head of Advanced de discovery and

519
00:29:36,520 --> 00:29:41,480
Speaker 5: AI strategy at ROPES, and so I am asked almost

520
00:29:41,560 --> 00:29:46,040
Speaker 5: on a daily basis, now, what my prediction is for

521
00:29:46,160 --> 00:29:51,080
Speaker 5: the adoption of GENI in the law in litigation? Right?

522
00:29:51,480 --> 00:29:54,600
Speaker 5: And so I could maybe just answer that off the

523
00:29:54,640 --> 00:29:58,000
Speaker 5: cuff what my predictions are, but I've tried to have

524
00:29:58,120 --> 00:30:00,920
Speaker 5: some diagnostic tools thrown out out there, sort of like

525
00:30:01,080 --> 00:30:04,640
Speaker 5: if we were scientists at one of the polls trying

526
00:30:04,680 --> 00:30:07,720
Speaker 5: to gauge and predict global warming, there will be a

527
00:30:07,840 --> 00:30:10,040
Speaker 5: bunch of sensors and probes out there. So that's how

528
00:30:10,040 --> 00:30:12,640
Speaker 5: I think of the tracker, And so the tracker for

529
00:30:12,760 --> 00:30:16,640
Speaker 5: me is telling me, okay, as of today, January sixteenth,

530
00:30:17,000 --> 00:30:21,280
Speaker 5: we have twenty three different courts issuing some kind of

531
00:30:21,440 --> 00:30:25,200
Speaker 5: order on AI or GENAI, and then when you dig

532
00:30:25,240 --> 00:30:28,600
Speaker 5: into it in our tracker, we've got layers of analysis

533
00:30:28,640 --> 00:30:32,440
Speaker 5: on what they are. And then we're also tracking over

534
00:30:32,520 --> 00:30:35,840
Speaker 5: time how they evolve, how they become more sophisticated, and

535
00:30:35,880 --> 00:30:41,000
Speaker 5: we're already seeing that. And so that diagnostic of analyzing

536
00:30:41,000 --> 00:30:43,720
Speaker 5: that helps me to answer that question, what do I

537
00:30:43,760 --> 00:30:46,160
Speaker 5: think the next year or two are going to look

538
00:30:46,280 --> 00:30:49,920
Speaker 5: like for the adoption and actual use of GENAI in litigation.

539
00:30:50,320 --> 00:30:53,080
Speaker 2: What kind of trends do you see if you see

540
00:30:53,120 --> 00:30:56,120
Speaker 2: any trends in these court orders.

541
00:30:56,240 --> 00:31:00,120
Speaker 5: What I'm seeing is interesting. So what I'm seeing is

542
00:31:00,280 --> 00:31:03,440
Speaker 5: we had a bunch come in in November in early December,

543
00:31:03,560 --> 00:31:07,000
Speaker 5: first of all, so I'm seeing an increase of just

544
00:31:07,280 --> 00:31:10,960
Speaker 5: courts issuing standing orders number one, So that helped me

545
00:31:11,080 --> 00:31:14,720
Speaker 5: to predict based on last year's activity and where we

546
00:31:14,760 --> 00:31:16,880
Speaker 5: are with the courts, we're going to get more over

547
00:31:16,920 --> 00:31:20,760
Speaker 5: twenty twenty four. The second trend I'm seeing is that

548
00:31:20,800 --> 00:31:27,040
Speaker 5: they're getting more precise and therefore sophisticated. In other words,

549
00:31:27,160 --> 00:31:31,320
Speaker 5: earlier ones, there's a few that were a little too general, right.

550
00:31:31,400 --> 00:31:36,160
Speaker 5: They just referred to quote AI generally, which is hard

551
00:31:36,680 --> 00:31:40,520
Speaker 5: for practitioners who don't live in this space to appreciate.

552
00:31:40,600 --> 00:31:42,720
Speaker 5: What are they talking about, right? Are they talking about

553
00:31:42,800 --> 00:31:46,280
Speaker 5: ANAI tool that generates information or are they talking about

554
00:31:46,760 --> 00:31:52,640
Speaker 5: a wide definition that could apply to really any automated software.

555
00:31:52,720 --> 00:31:57,000
Speaker 5: So we're seeing more sophistication on that front in getting there,

556
00:31:57,040 --> 00:32:02,560
Speaker 5: and then we're seeing much more specific city around the

557
00:32:02,800 --> 00:32:07,160
Speaker 5: tools that the courts are concerned with. And for example,

558
00:32:07,240 --> 00:32:11,280
Speaker 5: if you look at the Northern District of California November

559
00:32:11,280 --> 00:32:16,600
Speaker 5: twenty second order from Judge Martinez of Gwynn, that order

560
00:32:16,720 --> 00:32:21,360
Speaker 5: is requiring lawyers to maintain records of prompts and inquiries.

561
00:32:21,760 --> 00:32:24,680
Speaker 5: So that's one of the more specific ones that I've seen,

562
00:32:24,840 --> 00:32:28,960
Speaker 5: and that's that evolution or trend. I expect to see

563
00:32:29,000 --> 00:32:30,720
Speaker 5: more of that over twenty twenty four.

564
00:32:30,920 --> 00:32:35,000
Speaker 2: Are there any judges orders that you find troubling or

565
00:32:35,440 --> 00:32:37,240
Speaker 2: you know, involved too much?

566
00:32:37,760 --> 00:32:40,520
Speaker 5: I don't want to be critical of any of these

567
00:32:40,560 --> 00:32:43,040
Speaker 5: court orders because I think they're all doing a great

568
00:32:43,120 --> 00:32:47,600
Speaker 5: job at just trying to focus the bar on concerns

569
00:32:47,640 --> 00:32:50,360
Speaker 5: and that's always good. I would say if you were

570
00:32:50,360 --> 00:32:55,360
Speaker 5: to compare the Eastern District of Pennsylvania, so Judge Bailsen, right,

571
00:32:55,720 --> 00:32:58,960
Speaker 5: that's an earlier one, so that's from June, and I

572
00:32:59,000 --> 00:33:02,440
Speaker 5: would say that that's fairly generic and it doesn't refer

573
00:33:02,600 --> 00:33:08,280
Speaker 5: necessarily to GENAI, but AI in general. And the other

574
00:33:08,760 --> 00:33:13,520
Speaker 5: concern with it is it's not directed to just actual

575
00:33:13,560 --> 00:33:18,520
Speaker 5: court filings, but also the preparation of any complaint, answer, motion,

576
00:33:18,760 --> 00:33:22,920
Speaker 5: brief or other paper. Right, So that's pretty widespread and

577
00:33:22,960 --> 00:33:26,480
Speaker 5: could apply to really any work that lawyers are doing

578
00:33:26,560 --> 00:33:30,880
Speaker 5: if it winds up in a filing. So over last

579
00:33:30,920 --> 00:33:33,600
Speaker 5: year or what we saw was these court orders got

580
00:33:33,600 --> 00:33:37,320
Speaker 5: a little more specific on being applicable when you actually

581
00:33:37,440 --> 00:33:40,920
Speaker 5: file something as opposed to the preparation of something. So

582
00:33:41,320 --> 00:33:43,920
Speaker 5: those are the two concerns that I look at when

583
00:33:43,920 --> 00:33:47,200
Speaker 5: these core orders come out, And one of them is

584
00:33:47,200 --> 00:33:50,560
Speaker 5: is it specific to GENAI? Is it being clear? And

585
00:33:50,600 --> 00:33:54,800
Speaker 5: then the second is is it applicable to an actual

586
00:33:54,920 --> 00:33:59,440
Speaker 5: filing or submission or all of the preliminary work and research,

587
00:33:59,480 --> 00:34:03,640
Speaker 5: because that becomes a little bit more difficult to adhere to.

588
00:34:04,000 --> 00:34:06,560
Speaker 5: On the flip side, the other end of the spectrum

589
00:34:06,920 --> 00:34:10,560
Speaker 5: are court orders that embrace the fact that really, under

590
00:34:10,560 --> 00:34:14,360
Speaker 5: the existing rules, you already have a duty to certify

591
00:34:14,719 --> 00:34:16,239
Speaker 5: accuracy of your filings.

592
00:34:16,360 --> 00:34:19,160
Speaker 2: Thanks so much, Shannon for sharing your tracker with us.

593
00:34:19,719 --> 00:34:22,760
Speaker 2: That's Shannon Kirk, the global head of AI at Ropes

594
00:34:22,840 --> 00:34:24,960
Speaker 2: and Gray. And that's it for this edition of the

595
00:34:25,000 --> 00:34:28,320
Speaker 2: Bloomberg Law Podcast. Remember you've can always get the latest

596
00:34:28,360 --> 00:34:31,279
Speaker 2: legal news by subscribing and listening to the show on

597
00:34:31,360 --> 00:34:35,680
Speaker 2: Apple Podcasts, Spotify, and at Bloomberg dot com Slash podcast

598
00:34:35,719 --> 00:34:39,640
Speaker 2: Slash Law. I'm June Grosso and This Is Bloomberg