Tuesday, July 18, 2023

How Will Artificial Intelligence Impact Construction Litigation?

In the first half of 2023, artificial intelligence (“AI”) caught the public’s imagination. Attorneys have not been immune from the fever-pitch of commentary regarding the possible applications. While early adopters have had varying degrees of success, commentators have proposed various potential impacts on construction projects and disputes. This article discusses potential areas where AI can assist in preventing and resolving disputes from the pre-bid stage through project completion and close-out.

What is AI?

Artificial intelligence entered the popular zeitgeist accompanied by both optimistic and pessimistic predictions about the future. Internet searches on AI exploded in December 2022, reflecting a rapid and widespread public interest in the topic. The term “AI” itself is often loosely used to refer to a machine or computer software with the ability to conduct machine learning.[1] Whereas “automation” is the simple process of computing inputs, artificial intelligence refers to the ability to learn without additional programming from a human being. Now, increased computing power is finally helping some of the potential applications of this technology come into focus. Nonetheless, artificial intelligence is still maturing and is subject to “hallucinations” where the technology essentially generates erroneous nonsense.

In the Contract:

Changes in the scope of work are one of the most common sources of construction disputes. AI has the potential to impact construction contracts by mining details such as the proper scope of work. A construction contract can be a lengthy, complicated document with cross-references to bid documents, other agreements and specifications. For example, parties could use AI in the future to flag when a revised drawing requires a formal change order. These details are often central to subsequent disputes. Of course, in any scenario all contractual language should always be reviewed by an experienced construction attorney.

In the Field:

AI has multiple use cases on the ground. For example, AI with “computer vision” may be used to predict the best locations to drill into concrete while avoiding expensive mistakes and obstacles.

AI may have use cases in scheduling and management. Delays are a common source of frustration on construction projects. It now seems plausible AI could be used in the future to analyze available data to, (i) predict the probability of a delay, and (ii) after a delay occurs, to identify the cause.

AI may also have certain use cases in preventing or limiting workplace injuries. For example, AI could conceivably be used to scan a construction site for individuals without certain personal protective equipment. Machine learning will also be involved in any autonomous machinery or equipment used on job sites of the future.[2]

In the Office:

Construction disputes typically involve a multitude of documents, including contracts, specifications, drawings, change orders and correspondence. Analysis of a well-documented construction project can quickly become one of the most time-consuming aspects of a dispute. To the extent AI may gain the ability to apply machine learning to increase the efficiency of large document reviews, this could represent a significant change in the landscape of construction litigation.

In Court:

Some intrepid lawyers have begun using artificial intelligence as part of their practice. These early adopters have been met with mixed results, and sometimes worse. Some courts are responding by requiring that any attorney using artificial intelligence disclose when AI is used in the preparation of filings. They also must certify that each and every citation to the law of the record has been verified as accurate.[3]

Of course, the use of artificial intelligence may trigger several important professional and ethical duties for attorneys. The ABA recently addressed some of these concerns when the House of Delegates adopted a resolution regarding the use of artificial intelligence at the 2023 Midyear Meeting.


It can be difficult to separate the wheat from the chaff when it comes to the true potential of AI and machine learning. In terms of the technology adoption lifecycle, AI has likely turned an important corner as it transitions from “innovators” to “early adopters.” For some of us, the hype and prognostications can be an obstacle to performing an objective assessment of likely benefits and risks. Construction law remains in the very early stages of the so-called “AI Revolution” and the final destination remains unclear.

Construction, like the law itself, is an old profession not known for embracing disruption. But while the promise of artificial intelligence can be alluring, construction attorneys should be careful not to allow these new tools to replace their own research and judgment. Nonetheless, the potential of machine learning to impact all phases of construction from planning and drafting through project completion and dispute resolution warrants close attention and thoughtful analysis. The power of the underlying technology will continue to grow.

Patrick McKnight is a member of Fox Rothschild’s national Construction Practice Group. For more information, please contact Patrick at pmcknight@foxrothschild.com. 

[1] To be clear, machine learning is more accurately described as a subset of artificial intelligence.

[2] The flip side of the coin is how liability will be apportioned when AI is accused of causing an injury. This is a developing area of tort law beyond the scope of this article. 

[3] See e.g., Judge Michael Baylson’s June 6, 2023 Standing Order Re: Artificial Intelligence (“AI”) in the Eastern District of Pennsylvania.

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