Litigation

Cal. Litig. MAY 2024, VOLUME 37, ISSUE 1

EDITOR’S FOREWORD: NO WAITING: LITIGAITION IS HERE!

Written by Benjamin G. Shatz*
Editor-in-Chief

In November 2022 ChatGPT was let loose, changing everything, including the legal world. The past year has seen articles about:

  • judges using AI to draft rulings (see Colombian judge uses ChatGPT to make decision in legal first (Feb. 3, 2023) Daily Mail; Judge admits he used ChatGPT to write a Court of Appeal ruling as he calls the AI tool ‘jolly useful’ (Sept. 14, 2023) Daily Mail; AI object! Judges will be able to use ChatGPT in legal rulings in England and Wales—despite the technology being prone to making up bogus cases (Dec. 12, 2023) Daily Mail);
  • AI passing the Bar Exam (see Arredondo, GPT-4 Passes the Bar Exam: What That Means for Artificial Intelligence Tools in the Legal Profession (April 19, 2023) Stanford Law School Blog);
  • lawyers being sanctioned for relying on AI-generated filings (Mata v. Avianca Inc., No. 22-CV-1461-(PKC), 2023 WL 4114965 (S.D.N.Y. June 22, 2023); Neumesiter, Lawyers blame ChatGPT for tricking them into citing bogus case law (June 8, 2023) AP; Merken, Another NY lawyer faces discipline after AI chatbot invented case citation (Jan. 30, 2024) Reuters);
  • a criminal defendant seeking a new trial based on ineffective assistance of counsel, alleging his lawyer incompetently used AI to craft his closing argument (Gerstein, Pras Michel of Fugees seeks new trial, contends former attorney used AI for closing argument (Oct. 16, 2023) Politico); and
  • courts nationwide (e.g., Texas, Ohio, Pennsylvania, Hawaii, Florida) imposing or considering new rules to ban or regulate the use of AI in litigation. For example, the Fifth Circuit Court of Appeals has proposed a rule that counsel must certify that no generative AI was used in drafting a document to be filed, or if it was used, that "all generated text, including all citations and legal analysis, has been reviewed for accuracy and approved by a human." (See Raymond & Merken, Two US appeals courts form committees to examine AI use (Jan. 14, 2024) Reuters [referencing AI-related committees in the Third and Ninth Circuits].)

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