Courts, Technology

If You Aren't The One Writing Your Briefs In Texas, It Better Be Some Other Human!

You know, someone should have felt like something was up when the filing opened up with Lorem ipsum.

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How would they know? They’ll never know.

You know what’s great about legal writing? I’ll give you a moment. Had enough and went to ChatGPT to give you a skeleton outline for why legal writing is res ipsa amazing? You better not be practicing in Texas. It might be a cool little trick to do on your personal time, but I’d advise against you doing it in court. Especially in the Northern District:

A federal trial court judge in the Northern District of Texas has issued a standing order requiring all attorneys appearing before the court to certify that no portion of the filing was drafted by generative artificial intelligence or that any language drafted by AI was checked for accuracy by a human being.

“These platforms in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations,” Judge Brantley D. Starr of the US District Court for the Northern District of Texas said Tuesday.

He’s right, you know. And while the best thing to do would be to blame each attorney for actual usual error rather than the negligence that the per se potential of using AI poses, making people swear from the jump to not use the damned thing is probably the second or third best option. That said, Judge Starr raises a great point about why the use of AI for legal writing specifically shouldn’t pass muster:

As to bias, Starr said, “While attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients, generative artificial intelligence is the product of programming devised by humans who did not have to swear such an oath.”

“Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why,” Starr said.

While I appreciate this over some NPC response of “AI bad human good,” I’m not sure what the bright line for Starr’s metric is. Unless each programmer involved with Westlaw, Lexis, and that little squiggly thing in Microsoft Word that catches typos has a JD, those commonplace tools of the trade are also “product(s) of programming devised by humans who did not have to swear such an oath.” If Westlaw’s black box shoots some overturned case that hasn’t been good law since 1842, surely we’d fault the lawyer who didn’t do the due diligence of reading their work and not the search tool. Why treat this differently?

If you’ve been wondering what the punishment given for the lawyers who consult AI ESQ is — and of course you have — this should scratch the itch.

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The court will “strike any filing from an attorney who fails to file a certificate on the docket attesting that the attorney has read the Court’s judge-specific requirements and understands that he or she will be held responsible under Rule 11 for the contents of any filing that he or she signs and submits to the Court, regardless of whether generative artificial intelligence drafted any portion of that filing,” Starr ordered.

That said, Texas’s Northern District or any other court may decide to spice up the wrist slaps delivered to those getting a bit of “technical help” on their writing. Presumably sanctions. That may or may not include the judge forcing you to buy chicken for opposing counsel.

I’d suggest you either brush up on that legal writing textbook collecting dust in your “I glanced at this books while getting a JD” cabinet or start adding a Nando’s gift card column to your overhead costs.

Attorneys Must Certify AI Policy Compliance, Judge Orders [Bloomberg Law]

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Earlier: For The Love Of All That Is Holy, Stop Blaming ChatGPT For This Bad Brief

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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