Fifty Years of Progress: How AI Is Elevating Litigation—And How to Preserve Privilege While Using It

• Pages: 10-11
• Date: 01 January 2026
• Published date: 01 January 2026
• Author: Shirin Afsous
• Subject Matter: Civil Law

Published in Litigation News Volume 51, Num ber 2, Winter 202 6. © 2026 by the Amer ican Bar Ass ociation. Rep roduced with pe rmission. A ll rights reser ved. This info rmation or any po rtion thereof

may not be copied o r disseminated i n any form or by any means o r stored in an elec tronic databas e or retrieval system w ithout the expres s written consen t of the American Ba r Association .

Fifty Years of Progress: How AI Is

Elevating Litigation—And How to

Preserve Privilege While Using It

By Shirin Af sous, Litigation News Team Editor

uring the last 50 years, litigation has undergone

extraordinary transformation. The era of paper

f‌iles, dictation tapes, and physical document

warehouses has given way to digital repositories,

sophisticated analytics, and technology-assisted

reviews. Today, artif‌icial intelligence (AI) marks the next great

inf‌lection point in that evolution. But unlike previous shifts,

AI does far more than streamline workf‌low—it expands the

litigator’s capabilities in profound ways. However, as these

tools become standard in modern litigation, lawyers must

remain attentive to how longstanding privilege doctrines apply

to AI-augmented practice. This balance between innovation

and professional responsibility is shaping the next chapter of

litigation, including through the recently proposed Federal

Rule of Evidence 707, which is designed to bring clarity to

the use of AI-generated materials in court. The upside of

using AI in litigation is undeniable: AI oers enormous ben-

ef‌its. Privilege concerns—though real—are manageable with

thoughtful policy, technology choices, and attorney oversight.

The Evolution of Li tigation Technolog y

Technological change has consistently benef‌ited litigators who

embrace it. For example, email and early digital search, both

at one point considered novel and risky, uniformly improved

document retrieval. E-discovery platforms transformed large-

scale review. Predictive coding reduced costs and saved thou-

sands of attorney hours. AI continues this upward trajectory.

Unlike earlier tools limited to search or categorization, mod-

ern AI systems can analyze patterns, summarize records, cre-

ate structured timelines, generate draft briefs, and help teams

prepare for hearings and depositions. These capabilities do

not replace the attorney’s judgment; rather, they enhance it.

They shift lawyers’ focus from administrative burden to stra-

tegic thinking, client counseling, and persuasion.

AI’s Transformati ve Impact Across Liti gation

1. E-Discovery and Document Review: AI-driven review tools

now recognize concepts, relationships, and anomalies far more

eectively than keyword-based search alone. This contextual

understanding enables earlier issue spotting, improved quality

control, and more accurate identif‌ication of potentially privi-

leged material. Firms leveraging AI report faster turnaround,

better consistency, and more predictable budgets—aggressive

advantages in competitive legal markets.

2. Legal Research, Drafting, and Analysis: Generative AI

accelerates research and drafting, producing thoughtful starting

points that attorneys independently validate, review, and ref‌ine.

Lawyers remain responsible for accuracy and argumentation,

but AI provides structure, summaries, and even potentially rel-

evant authorities when utilizing specialized legal AI tools, more

quickly. This augmentation allows litigators to invest more time

in developing narrative, strategy, and client communication—

precisely the high-value work that distinguishes strong advocacy.

3. Litigation Strategy and Predictive Insights: AI-powered

analytics illuminate judge-specif‌ic tendencies, motion practice

patterns, and likely timelines. They can surface vulnerabilities

in an opposing party’s evidence or highlight trends that might

inf‌luence settlement. These insights do not dictate decisions—

they inform them.

Privilege in th e Age of A I: Opportunities an d Concerns

As AI oers tremendous benef‌its, the privilege doctrine must

be applied thoughtfully to preserve conf‌identiality. Lawyers

must adopt tools and workf‌lows that protect the integrity of

attorney-client communications and work product, and cli-

ents must employ systems and procedures to safeguard inad-

vertent disclosures.

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WINTER 202 6 • VOL. 51 NO. 2

10 | ABA LITIGATION SECTIO N

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