Friday Frivolity: AI Lawyering Strikes Out Again
My law school recently provided me with a subscription to the latest version of ChatGPT. I find it a very useful tool. I use it as a proofreader. I give it my exams to have it generate model answers that I compare to my expectations. I use it to get ideas for exam questions, and I sometimes feed my own research questions into it as a starting point for research. I should ask it to proofread my blog posts more regularly, but it does not have a good redline function, so it is a lot of work to incorporate its suggestions.
Sometimes when a student asks me a question and I don’t have a ready answer, I start with ChatGPT. Recently, a student asked me whether “ten days” in the merchants’ exception to the Statute of Frauds in UCC § 2-201(2) means ten calendar days or ten business days. I had wondered about that myself on occasion, but never tracked down an answer, of if I did, I forgot it. I asked ChatGPT, and it said that “ten days” was ten calendar days. Among the sources cited were Comment 3 to § 2-201, which says nothing pertinent, and Adams v. New England Die Casting Co., 392 N.E.2d 514 (Mass. App. Ct. 1979). Having looked at the comment and not found it useful, I checked the case. It does not exist.
And so it goes. Some practitioners in my home state of Oklahoma did not catch the hallucinations that generative AI embedded in their submissions to a court. Just last week, my colleague Ashley McCord (below) shared an opinion from the U.S. District Court for the Eastern District of Oklahoma disciplining attorneys in Mattox v. Product Innovations Research, LLC.
In eleven documents filed in the case, attorneys included eighteen citations to non-existent cases or to cases that did not stand for the propositions for which were cited. When opposing counsel objected to the citations, the negligent attorney blamed “clerical and formatting errors.” As the Court noted, the problem was not form; it was falsity.
The Court imposed penalties under Rule 11 on the offending attorneys, ranging from a public reprimand to that plus $3000. The filings with fabricated references were stricken from the record, and attorneys were given sixty days to submit filings that are reviewed and verified for accuracy by a human being.