How
many
fake
cases
does
it
take
before
we
stop
blaming
the
tool
and
start
blaming
the
lawyer?
It
seems
as
if
not
a
day
goes
by
without
another
false
case
citation
making
headlines.
In
courtrooms
across
the
world,
judges
are
grappling
with
a
deluge
of
error-ridden
filings.
Lawyers
in
firms
big
and
small
are
making
these
mistakes,
resulting
in
harshly
worded
judicial
orders,
stern
reprimands,
and
even
sanctions.
Some
claim
it’s
a
technology
problem,
asserting
that
generative
artificial
intelligence
(AI)
tools
are
providing
errors,
resulting
in
false
case
citations.
While
it’s
true
that
generative
AI
is
prone
to
including
incorrect
output,
that’s
not
the
reason
the
fake
cases
end
up
in
court
filings.
Instead,
the
fault
lies
with
legal
practitioners.
This
technology
is
revealing
the
ugly
underbelly
of
legal
practice:
Lawyers
have
been
overwhelmed
by
client
and
billable
hour
demands
for
many
years,
and,
as
a
result,
have
taken
shortcuts
resulting
in
carelessly
prepared
work
product.
Before
the
advent
of
AI,
judges
gave
attorneys
the
benefit
of
the
doubt,
assuming
that
they’d
misread
the
case
or
failed
to
check
a
case
citation,
resulting
in
misspellings
or
transposed
digits.
But
when
faced
with
fictional
case
names,
citations,
and
quotes,
the
conclusion
is
inescapable:
some
lawyers
simply
don’t
read
the
documents
prepared
for
them
—
whether
by
AI
or
another
person
—
before
filing
them
with
the
court.
This
irrefutable
and
unacceptable
situation
is
leading
many
judges
to
be
justifiably
upset.
You
need
look
no
further
than
the
standing
order
issued
earlier
this
month
by
United
States
Magistrate
Judge
for
the
Northern
District
of
Texas,
Dallas
Division
David
L.
Horan.
At
the
outset,
Horan
made
it
clear
that
the
order
was
directed
at
both
attorneys
and
pro
se
litigants,
both
of
whom
“are
beginning
to
make
the
jump
from
…
(legal
research)
databases
into
the
world
of
Artificial
Intelligence.”
He
explained
that
the
court
did
not
oppose
the
use
of
AI
to
draft
filings,
and
instead
acknowledged
that
when
“done
right,
AI
can
be
incredibly
beneficial
for
attorneys
and
the
public.”
However,
generative
AI
output
combined
with
carelessness
is
significantly
hampering
the
administration
of
justice:
“While
one
party
can
create
a
fake
legal
brief
at
the
click
of
a
button,
the
opposing
party
and
court
must
parse
through
the
case
names,
citations,
and
points
of
law
to
determine
which
parts,
if
any,
are
true.
As
AI
continues
to
proliferate,
this
creation-response
imbalance
places
significant
strain
on
the
judicial
system.”
The
judge
was
clear:
careless
practitioners
are
the
problem,
not
the
technology.
While
AI
can
provide
false
output,
the
burden
is
on
the
litigant
to
review
the
document
for
accuracy:
“(A)n
attorney
[or
pro
se
party]
who
submits
fake
cases
clearly
has
not
read
those
nonexistent
cases
…
It
is
one
thing
to
use
AI
to
assist
with
initial
research
…
It
is
an
entirely
different
thing,
however,
to
rely
on
the
output
of
a
generative
AI
program
without
verifying
the
current
treatment
or
validity
—
or,
indeed,
the
very
existence
—
of
the
case
presented.”
In
other
words,
due
diligence
is
required
before
filing
a
submission
with
the
court.
This
includes
reading
and
verifying
the
content
and
all
cases
referenced
therein.
Horan
explained
that
doing
so
is
the
bare
minimum:
“Confirming
a
case
is
good
law
is
a
basic,
routine
matter
and
something
to
be
expected
from
a
practicing
attorney.”
That’s
why
verifications
are
required
on
all
documents
filed
with
the
court:
“By
presenting
to
the
court
a
pleading,
written
motion,
or
other
paper
—
whether
by
signing,
filing,
submitting,
or
later
advocating
it
—
an
attorney
or
unrepresented
party
certifies
that
to
the
best
of
the
person’s
knowledge,
information,
and
belief,
formed
after
an
inquiry
reasonable
under
the
circumstances
…
the
claims,
defenses,
and
other
legal
contentions
are
warranted
by
existing
law.”
When
litigants
submit
filings
that
are
rife
with
errors
and
non-existent
caselaw,
the
blame
lies
with
them,
not
the
technology.
That
failing
is
inexcusable
and
leads
to
a
waste
of
court
resources:
“That
the
AI-generated
excerpts
appeared
valid
to
an
attorney
or
pro
se
participant
does
not
relieve
him
of
his
duty
to
conduct
a
reasonable
inquiry
into
the
law
…
An
attempt
to
persuade
a
court
or
oppose
an
adversary
by
relying
on
fake
opinions
is
an
abuse
of
the
adversary
system.”
Put
simply,
the
solution
to
false
citations
isn’t
better
technology;
it’s
better
lawyering.
Generative
AI
is
a
great
resource,
but
it
can’t
replace
professional
judgment
or
due
diligence.
As
courts
grow
less
tolerant
of
these
missteps,
the
message
is
clear:
You
can’t
outsource
responsibility.
If
you
sign
it,
you
own
it.
Or,
as
Judge
Horan
aptly
concluded:
“The
use
of
artificial
intelligence
must
be
accompanied
by
the
application
of
actual
intelligence
in
its
execution.”
Nicole
Black
is
a
Rochester,
New
York
attorney
and
Principal
Legal
Insight
Strategist
at AffiniPay,
parent
company
of
MyCase,
LawPay,
CASEpeer,
and
Docketwise.
She’s
been
blogging
since
2005,
has
written
a
weekly
column
for
the
Daily
Record
since
2007,
is
the
author
of
Cloud
Computing
for
Lawyers,
co-authors
Social
Media
for
Lawyers:
the
Next
Frontier,
and
co-authors
Criminal
Law
in
New
York.
She’s
easily
distracted
by
the
potential
of
bright
and
shiny
tech
gadgets,
along
with
good
food
and
wine.
You
can
follow
her
on
Twitter
at
@nikiblack
and
she
can
be
reached
at
[email protected].