January 29, 2024

Jennifer Hoekstra Discusses A.I.’s Transformative Role in Mass Tort Litigation

Author: Pawan Murthy

In this blog post, Jennifer Hoekstra, partner at Aylstock, Witkin, Kreis & Overholtz, shares her insights on technology and AI in mass torts. With extensive experience in this field, she highlights how advancements in AI are influencing mass tort law firms and shaping the future of litigations.

Q: Please tell us about yourself and your background
A: My name is Jennifer Hoekstra, and I am a partner at Aylstock, Witkin, Kreis & Overholtz, located in Pensacola, Florida. I have specialized in mass torts for over 15 years, primarily focusing on pharmaceuticals and medical devices, though I’ve also been involved in other significant cases, such as the recent 3M Earplug litigation. My work has included involvement in the Actos litigation, where my primary responsibilities have centered around discovery.

Q: Have you seen a change in the mass tort industry as it relates to adoption of new technologies?
A: The mass tort industry exhibits a blend of approaches towards technology. Larger firms, in particular, are progressively adopting technology and automation for efficient client file management. In the early years of my legal career, we maintained physical files alongside electronic ones, due to concerns about the reliability of digital databases. I recall working with claims in Medtronic and Guidant, where information was manually noted on folders, then entered and verified manually. This process is now entirely digital. For instance, in the 3M settlement, registration forms are distributed via emails and cell phones, marking a significant departure from paper usage.

Additionally, firms recognize the financial benefits of utilizing client data for future litigation possibilities. A clear example of this is what I call “spin off” litigations, such as Vioxx, which led to Avandia, which then led to Actos. This progression demonstrates how firms can leverage past client data to identify potential new cases. The extent of technology adoption varies among firms, with some adapting more seamlessly than others.

Q: Do you believe AI technology will replace lawyers, as some think, or become a useful tool in the practice of law?
A: Artificial Intelligence undoubtedly offers significant benefits, especially for firms handling sensitive or vulnerable client data. However, its implementation must be carefully managed to avoid inadvertently exposing client data, particularly when using open source or public platforms.

From my experience, AI has been incredibly useful for generating trial graphics, PowerPoint presentations, and even drafting initial client communications. The evolution from traditional online searching to instructing AI to create specific legal document templates represents a considerable advancement, provided it’s done on isolated systems with robust data protection measures.

One should be cautious, though, as AI often aims to provide any response, even when it is not sure if the data is accurate or complete. This kind of behavior has been named “AI hallucinations.” For example, I recall an instance on an ESI Listserv where someone used AI to identify key cases in a particular jurisdiction. The AI missed two crucial cases due to recent questions about their legal standing, illustrating that AI may provide some response versus nothing. It also shows that AI is only as good as the data they’re trained on. Free AI services like ChatGPT may not have the most current case information, which is something only a legal professional would know.

I don’t foresee AI replacing lawyers, as there remains an essential mental component in legal work. However, AI and Technology Assisted Review (TAR) have been invaluable tools in my practice, particularly in discovery phases. We’ve successfully implemented TAR protocols in both the Actos and 3M litigations, demonstrating its utility, which has laid the groundwork for implementing AI. In fact, our firm is currently exploring AI platforms to accelerate document review and settlements, ensuring all the data remains in closed, secure systems and outcomes are double checked for accuracy and quality.

Q: There’s a stigma that attorneys are very suspicious of new technology and hesitant to try new things. Is that true and, if so, do you think that is changing?
A: The landscape is certainly evolving, though some level of apprehension towards change remains inherent in the legal profession. Two decades ago, it was commonplace for attorneys to physically visit a library to Shepardize cases. This practice was later replaced by a generation of lawyers trained exclusively in the use of electronic resources like Westlaw, bypassing the need for traditional law library research. This represents a significant learning curve.

For instance, new associates today are often taken aback by the mere existence of paper document collections, a stark contrast to their expectations of digital-only files. This shift in mindset among younger lawyers is pushing firms towards greater technological integration.

I believe that firms who are resistant to adopting technology will struggle to remain competitive in the increasingly demanding and dynamic legal environment. As we move forward, more legal processes are being digitized. Requirements such as registering for online portals, serving complaints through digital systems, or the necessity of email for various legal tasks are becoming the norm. Firms that lag in technology adoption find themselves constrained, often asking archaic questions like where to mail physical forms. However, such firms are gradually diminishing in number, signaling a broader acceptance and integration of technology in the legal field.

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