A recent legal case has seemingly gotten entangled in the use of generative AI by lawyers for one side that have landed in hot water. Lessons for everyone arise.
There is the other end of the extreme that also is equally unsettling. Any attorney that fully dives headfirst into generative AI can find themselves striking the shallow end of the pool if they aren’t savvy about what generative AI can and cannot do. When I refer to generative AI, I am speaking of a range of such AI apps including ChatGPT, GPT-4, Bard , and many others.
With that overall context, I will first bring you up-to-speed about the two lawyers and the legal drama afoot. I will do so in a somewhat rapid fashion and urge those of devout interest to pursue the details posted online at various legal-oriented forums. I aim to provide enough of a picture of what they have gotten themselves into to illuminate what the blaring headlines are all about and to set the stage for identifying useful lessons learned.
I’ll give you a hint of what next transpired. Turns out that the attorney that cited the legal cases had apparently relied upon a fellow attorney in his office to do the legal research on his behalf. This fellow attorney had apparently used generative AI, specifically ChatGPT, as part of the legal research endeavor. When using ChatGPT, the fellow attorney had seemingly asked ChatGPT to identify pertinent legal cases, which it supposedly did, and those then were encompassed into the legal filing.
You would almost naturally assume that after being alerted that the cited cases were of questionable authenticity, the two lawyers would have realized that maybe a slipup had occurred. The course of action would be to quickly clarify and try to set the record straight. Either the cases do exist and there is substantive proof of this existence, or they don’t exist and the aim would be to politely and with a prayer retract them from your legal posturing .
“The United States Court of Appeals for the Eleventh Circuit specifically addresses the effect of a bankruptcy stay under the Montreal Convention in the case of Varghese v. China Southern Airlines Co. Ltd., 925 F.3d 1339 , stating “Appellants argue that the district court erred in dismissing their claims as untimely…”Notice that the above-quoted excerpt indicates that there was a supposed legal case entailing Varghese and another case entailing Zicherman.
“On April 25, 2023, Plaintiff’s counsel submitted an affidavit annexing certain documents which he identifies as the cases in question. Defendant respectfully submits that the authenticity of many of these cases is questionable. For instance, the “Varghese” and “Miller” cases purportedly are federal appellate cases published in the Federal Reporter. [Dkt. 29; 29-1; 29-7]. We could not locate these cases in the Federal Reporter using a Westlaw search.
“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.” “10. That your affiant has never utilized Chat GPT as a source for conducting legal research prior to this occurrence and therefore was unaware of the possibility that its content could be false.”
A lot of attention on this newsworthy legal tale has focused on the so-called AI hallucinations that generative AI can generate. In theory, the legal cases that ChatGPT allegedly cited were made up by the AI app, ergo this demonstrably appears to be an instance of so-called AI hallucinations. You also have to realize that this kind of made-up content can occur at any time and occur with any of the myriads of generative AI apps. Make sure to prepare your mind to assume that all outputs from generative AI must be assumed to be potentially wobbly until suitably reviewed. This is your safest course of action.
Now that I’ve covered that key facet, I would like to double down and add something else that few seem to be equally pointing out.
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