The Bot, the Bar Exam, and Entry-Level Law Practice

October 6th, 2023 / By Deborah J. Merritt

Generative AI will transform legal education and law practice in ways that we are just starting to imagine. To stretch our imaginations–and begin thinking about the ramifications for legal education–I decided to feed GPT-4 some of the sample questions that NCBE has prepared for the NextGen bar exam. I wasn’t interested in whether GPT-4 could pass NextGen; that’s almost a given at this point. Instead, I used these questions as examples of the kind of client problems that a newly licensed lawyer might face. How could GPT-4 help that lawyer address those problems?

In this and a series of future posts, I’ll explore that question. Along the way, I hope to develop some insights into how GPT-4 could reshape legal education and the bar exam. Let’s get started with the first problem facing our hypothetical entry-level lawyer.

An Illegal Search?

NCBE’s first sample question is a multiple-choice question centered on a criminal defense lawyer representing a client who has been charged with possession of fentanyl. Check out the question on the NextGen site.

This question follows a new format that NCBE has deveoped for the NextGen exam. It assesses the test-taker’s familiarity with legal concepts without requiring recall of detailed rules. GPT-4 easily chose the correct answers here (A and F). But that’s not particularly interesting given what we already know about GPT-4’s capabilities. Instead, let’s imagine that a new lawyer confronted this problem at work and wasn’t sure where to start. Workplace problems don’t come with multiple-choice answers, so I started a new chat (on a different day) and fed GPT-4 the same problem with these modifications:

• I began the prompt with the words “Imagine that you are a criminal defense lawyer . . . . “
• I changed the call of the question to “What legal topics are the most important for you to research to determine the likelihood of success on a motion to suppress?”
• I omitted the provided answers.

Here’s what GPT-4 advised me:

---

1. Standing to Challenge the Search: One of the most crucial questions is whether your client has standing to challenge the search. A defendant can only challenge a search if they had a “reasonable expectation of privacy” in the place searched. Since your client doesn’t live in the uncle’s house and was not present during the search, you’ll need to determine if they had a legitimate expectation of privacy in the guest bedroom.
2. Consent to Search: Even if a search would have been illegal without a warrant, if someone gives the police permission to search, that search is usually considered reasonable and, therefore, legal. Here, the uncle gave the officers consent. You would need to research:
   • Whether the uncle had actual authority or the apparent authority to consent to a search of the guest bedroom.
   • If the consent was voluntarily given or if there were any issues of coercion, duress, or misunderstanding.
3. Scope of the Consent: It’s essential to determine if the search exceeded the scope of the consent given. If the uncle only agreed to a cursory look around and the police conducted a detailed and invasive search of the guest room, then the search might exceed the scope of the consent.
4. Exigent Circumstances: You’d need to evaluate if the police are claiming any exigent circumstances that justified a warrantless entry. A mere noise complaint might not rise to the level of an exigent circumstance, but it’s good to be prepared for any arguments the prosecution might raise.
5. The Plain View Doctrine: If contraband or evidence of a crime is in plain view and an officer has a legal right to be in the position to have that view, they can seize it without a warrant. Determine if the fentanyl was in plain view when the officers conducted the search.
6. The Fruit of the Poisonous Tree Doctrine: If the initial entry or search was illegal, then any evidence discovered as a result of that illegal action could be considered “fruit of the poisonous tree” and might be suppressed.
7. State Constitution and Statutes: Besides the U.S. Constitution’s Fourth Amendment, look into the state constitution and any state statutes that might provide additional protections against unreasonable searches and seizures.
8. Recent Case Law: It’s crucial to research recent cases in your jurisdiction to see how courts have ruled on similar issues. Case law can give you an idea of how your motion might be received and can be used to support your arguments.

Once you’ve researched these topics, you’ll have a clearer picture of the strengths and weaknesses of a motion to suppress in this situation.

---

This is an enormously helpful response: It identifies several angles for the lawyer to explore and gives some detail about each one. I particularly like the fact that GPT-4 advises the lawyer to remember the state constitution and statutes; those do provide additional protection in some states. And I like the final reminder to check recent case law. New attorneys (and even more senior ones) sometimes forget that step. At least on this problem, GPT-4 serves as an excellent issue spotter.

Ethan Mollick has described GPT-4 as an intern who is willing to do lots of work quickly and without pay. In this situation, I think of GPT-4 as a group of senior mentors that a new attorney can tap for advice. Some of the advice is better than other advice, and some advice is just plain wrong: Even very distinguished senior lawyers sometimes make a mistake. But as this example shows, GPT-4’s collective wisdom is well worth tapping.

Our new lawyer, of course, still has a lot of work to do. In my next post, I’ll explore what the new lawyer might do next–and how GPT-4 might continue to help.

AI, Uncategorized, Bar Exam, GPT-4, law practice