Artificial Precedent

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Lawyers using artificial intelligence to write their briefs have a problem. The AI brief writers sometimes cite nonexistent cases to support their arguments, Daniel Wu reports in the WaPo. Yes, that’s certainly easier than combing through the pile of opinions that a computer search turns up to find one that actually supports your point.

Using new tools to make legal research better and more efficient is a great improvement. That has been steadily improving since computer-aided research was first invented long ago, and AI may well be a quantum leap in that development. Using AI to actually write your brief is a much riskier step. But submitting an AI brief without cite-checking it is gross negligence, in my opinion.

The WaPo story reports:

Judges aren’t happy. In May, a Utah appeals court ordered an attorney to pay $1,000 to a Utah legal aid foundation for submitting a brief with references to nonexistent cases that the attorney later attributed to AI, according to court documents. The same month, a federal court in Indiana fined an attorney $6,000 and a California special master ordered two law firms to pay $31,100 to opposing attorneys in an insurance dispute for submitting briefs with similar mistakes.

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Lisa Lerman, a law professor at the Catholic University of America, said that lawyers taking shortcuts when pressed for time is not a new issue. Attorneys have been known to plagiarize previous briefs or cite irrelevant cases.

But AI tools can confidently fabricate cases and citations an attorney might fail to double check. That presents “dangers of an entirely different order,” Gillers said. He argued that filing court documents without checking the veracity of citations is “the classic definition of malpractice.”

Legal associations seem to agree, but formal AI policies are still taking shape. The American Bar Association wrote in a July opinion that failing to review AI output “could violate the duty to provide competent representation.” State bar associations that have adopted AI policies generally require attorneys to verify the accuracy of AI research, though they are split on whether attorneys must disclose AI use up front.