For the Defense - Vol. 8, Issue 4 - 19

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
text, lacking in creativity and nuance, and devoid of brand tone
and style. If the goal of marketing content is to help distinguish
you from your competitors, relying on AI-generated content will
not get you there-as we saw from ChatGPT's somewhat banal and
formulaic drafts of this article.
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
Beyond the practical downsides, the use of AI in legal marketing
also carries some legal and ethical risks. Litigation is on the rise
around issues including whether and to what extent materials
generated using AI are subject to copyright and other protections,
as well as whether the use of copyright protected materials by AI
tools could be considered infringement. These IP-related issues have
already touched the legal industry. In Thomson Reuters Enterprise
Centre GMBH v. Ross Intelligence Inc., the U.S. District Court for
the District of Delaware has been asked to decide whether the use
of Westlaw materials, including Westlaw headnotes and the Key
Number System, by a legal research startup to train its AI platform
constituted either copyright infringement or fair use.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
ChatGPT is only one of the growing number of AI-based
applications available to lawyers and law firms-both publicly
available tools and those developed specifically for law firm
use. While the information provided to the program does not
get incorporated into the data used to train it (its responses are
generated from a fixed dataset last updated more than two years
ago, in September 2021), data-relates issues, such as privacy, data
security, and data ownership and use, are a concern. Lawyers and
firms should evaluate these risks on a tool-by-tool basis.
File your client's motion after the
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
Effective Implementation of AI Tools
Understanding the potential benefits, drawbacks and risks is
important to the implementation of any technology, and critical in
the context of using AI in legal marketing. Having a comprehensive
strategy for integrating AI-enabled technology into your existing
processes can help address some of the downsides and mitigate
some of the risks.
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
Consider the following best practices:
*
*
The use of AI by lawyers and law firms certainly implicates
ethical issues, the full extent of which will not be fully realized
until sometime in the future. As we saw with the development
of social media and remote work, legal ethics rules tend to lag
significantly behind advances in technology, putting lawyers in
potentially risky professional positions.
That said, the duties of
competency (especially as it applies to technology-see the lawyers
in the airline case, above!), diligence and client confidentiality, as
well as the rules around attorney advertising, are all implicated by
the use of AI in legal marketing.
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
*
Final Words from ChatGPT
As a final part of my experiment with ChatGPT, I asked the
program what final words it might have about the use of AI in
legal marketing. Here is what it said:
PANTONE
2955C
CMYK
7406C
90/78/39/30
NOTES:
1
RGB
9/22/91/0
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
#153A5B
#EAC137
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
5
PANTONE
2955C
7406C
CMYK
About the Author
Click here to view and/or print the
90/78/39/30
RGB
9/22/91/0
full notes section for this article.
22/58/92
234/194/56
HEXIDECIMAL
#153A5B
#EAC137
About the Author
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
The integration of AI into legal marketing and business
development is not a mere option but a strategic
imperative for criminal and white-collar defense lawyers
in Pennsylvania seeking to thrive in a competitive legal
landscape. AI's capacity to elevate client
22/58/92
234/194/56
acquisition,
engagement, and streamline case management can
position your firm for sustained growth and success. While
ethical considerations are paramount, the future holds
exciting possibilities that can continue to revolutionize
legal marketing and business development practices.
Embracing AI is not just about staying relevant; it's about
shaping the future of your practice.
While I think it's a bit overstated-once again AI is trying to sell
itself, it seems-I do agree with ChatGPT that AI holds exciting
possibilities for legal marketing and business development, as long
as it is used cautiously and with an understanding of its benefits,
limitations, and risks.
understands the boundaries of AI use for legal and
marketing purposes.
Stay updated on AI advancements and best practices
for the integration of AI tools into legal marketing.
Understand your challenges, pain points, and goals
so you know what you're trying to accomplish by
using AI.
Select the AI tools and platforms that align with your
goals and budget.
* Make sure that legal and marketing professionals
are adequately trained in the use of the AI-enabled
tools.
* Consider a firmwide AI policy so that everyone
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
Share this article
Vol. 4, Issue 4 l For The Defense 9
Vol. 8, Issue 4 l For The Defense 19
Meg Pritchard is a litigator
and legal journalist turned
content marketing strategist
who helps leading law
firms develop exceptional
content that drives business
growth. Meg doesn't believe
human lawyers (or content
marketing strategists) will be
replaced by AI bots any time
soon-but they might be replaced by professionals
who know how to use AI to their advantage. Connect
with Meg on LinkedIn or at 215.514.3206.
For the Defense - Vol. 8, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 8, Issue 4
