If you read our recent article, Warning; Lawyers using Chat GPT unwittingly cited Non-existent Cases to Judge in Federal Court (May 27, 2023), you know that at least one lawyer, if not more, and their law firm, face not only Rule 11 sanctions, but possible disciplinary action, which could affect their license to practice law. Yes, it's that serious, but let's peel back the onion a bit to ascertain the depth of the fault, and what should have been done in the first place to avoid it.
I well recall one of the first things we learned as new first-year law students in Legal Research and Writing class was the reference to West Publishing Company, under the topic "Attorney Key Number 44(2), ATTORNEY'S FAILURE TO RESEARCH AUTHORITIES CONSTITUTES GROSS NEGLIGENCE.That was enough to scare me, and many others similarly situated in that classroom, I am sure.
One of the first things we learned in that class was how to Shephardize a case, meaning to use Shepard's Citator as a reference tool to determine whether a court decision we wished to use in advocacy had been upheld on appeal, and treated by other courts in subsequent cases, meaning was it still good law, and could it be relied upon to cite to a judge in support of a legal position advanced on behalf of a client.
This was before the age of the personal computer; back then, we manually searched for the relevant decision in the citator volumes, updating it as necessary with softcover supplementary monthly editions. This was a required task, because if a case had been criticized subsequently to being handed down, or worse, the principle it stood for overruled, or reversed and remanded on appeal, you did not want your opponent to educate the judge at a hearing to that fact, destroying not only your legal argument, but probably your credibility with that judge for a long time afterward. This would present a problem, as you would most likely be before that judge again in other matters. Now of course, modern online databases containing that information are readily available, BUT you still have an obligation to Shepardize (the term survives) the decisions you are relying upon.
The lawyer on the hot seat. in his affidavit, admitted using Chat GPT to supplement his legal research, claiming it was common practice:
"6. As the use of generative artificial intelligence has evolved within law firms, your affiant consulted the artificial intelligence website Chat GPT in order to supplement the legal research performed.
7. It was in consultation with the generative intelligence website Chat GPT, that your affiant did locate and cite the following cases, in the affirmation in opposition submitted, which this Court has found to be nonexistent:" Affidavit of Steven A. Schwartz, Roberto Mata vs. Avianca, Inc., Case No.: 22-civ-1461- PKC (SDNY 2023).
If you rely upon a platform that employs artificial intelligence, it is necessary that you verify that the information is accurate, true and correct, if you plan to use that information for any purpose. Not only is it common sense, for professionals of any kind, consider it prudent as well as mandatory. what apparently happened here is that Chat GPT, when presented with a legal research problem, took the data available on the subject, as actually created court decisions favorable to the lawyer's position. The fact that these citations to authority were fictional was not a concern to the program, creating the legal and professional nightmare for the lawyer, who failed to check (Shepardize) the accuracy of the Chat GPT research, at which point he would have learned that the cases it gave him do not exist. I fear for his future, as Federal District Court judges can be harsh with Rule 11 violations.
Today's lesson: whether you are a lawyer, compliance officer, or simply researcher looking to use AI to provide a solution to your issue, check the results carefully, before deploying them anywhere. Artificial Intelligence is an amazing tool to access data and information not otherwise accessible or available, but in its zeal to assist you, it might also provide you with something not entirely accurate. Trust but verify, please. It will help you avoid sleepless nights, like those that attorney Schwartz is most certainly enduring now, in anticipation of that upcoming hearing in Federal Court.