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Former Trump Fixer Michael Cohen's Latest Brief Filled With Fake Cases And We All Know Where This Story's Going

It seems that generative AI has struck again.

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Robot wearing dunce hat stands with arms outLawyers representing themselves may have fools for clients, but that’s still an improvement over hiring another attorney who then pisses off the judge.

Former Trump Fixer Michael Cohen has behaved admirably throughout his supervised release — staying out of trouble and dutifully providing testimony against his old boss — and his legal team thought this might be a good time to seek to terminate the arrangement. Cohen’s attorney, David M. Schwartz of Gerstman Schwartz, filed a letter motion outlining three exemplary cases where the Second Circuit upheld a modification of supervised release arrangement.

How did Judge Furman evaluate these cases?

As far as the Court can tell, none of these cases exist.

That must be embarrassing. At least this mistake isn’t happening on one of the most heavily monitored dockets in the federal system or anything!

64 F.4th 223 refers to a page in the middle of a Fourth Circuit decision that has nothing to do with supervised release. See United States v. Drake, 64 F.4th 220 (4th Cir. 2023). 2022 WL 1669877 corresponds to a decision of the Board of Veterans Appeals. See (Title Redacted by Agency), Bd. Vet. App. A22004268, 2022 WL 1669877 (Mar. 11, 2022). 2022 WL 4424741 appears to correspond to nothing at all. Moreover, the Court contacted the Clerk of the Court for the United States Court of Appeals for the Second Circuit, who found no record of any of the three decisions and reported that the one listed docket number (for Ortiz) is not a valid docket number.

We do not know exactly how Schwartz came up with these cases and yet we all know exactly how Schwartz came up with these cases. This has all the hallmarks of a hallucinating AI search using an off-the-rack product like ChatGPT instead of one specifically tailored to provide legal results. Given the hyperventilating coverage surrounding the first time this happened in New York, it’s stunning that any lawyer would go back to that well.

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But as we noted in that story, this is not a “technology” problem, but a lawyering problem. Asking a tool to spit out legal research does not relieve the lawyer of the obligation to review the cases before pasting them into a court filing. And we’re not speaking loosely when we say “paste them into.”

From the offending letter brief’s description of the first cited case:

The Second Circuit affirmed the district court’s decision. The court found that the district court had not abused its discretion in granting early termination, and that the defendant had met the burden of demonstrating that he was no longer a danger to the community.

And the second case. And the third case. It’s verbatim copied in each section. It reads exactly like how ChatGPT composes answers to the query: “Are there Second Circuit cases where the court found that the district court had not abused its discretion in granting early termination, and that the defendant had met the burden of demonstrating that he was no longer a danger to the community?”

But it’s also terrible drafting in any case. A cursory review of the letter before sending it out the door should have at the very least resulted in adding some variety to this boilerplate or, better yet, using the language once to apply to all three. As is, the clunky, repeated passage just underscores how little time and effort went into this letter.

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And you can’t blame AI for your level of effort.

In light of the foregoing, Mr. Schwartz shall, no later than December 19, 2023, provide copies of the three cited decisions to the Court.

In the spirit of cooperation and in the hope of speedrunning past the next inevitable error, asking ChatGPT to provide copies of these cases is only going to conjure up a full fictional opinion. So, um, don’t do that.

If he is unable to do so, Mr. Schwartz shall, by the same date, show cause in writing why he should not be sanctioned pursuant to (1) Rule 11(b)(2) & (c) of the Federal Rules of Civil Procedure, (2) 28 U.S.C. § 1927, and (3) the inherent power of the Court for citing non-existent cases to the Court. See, e.g., Mata v. Avianca, Inc., No. 22-CV-1461 (PKC), 2023 WL 4114965 (S.D.N.Y. June 22, 2023). Any such submission shall take the form of a sworn declaration and shall provide, among other things, a thorough explanation of how the motion came to cite cases that do not exist and what role, if any, Mr. Cohen played in drafting or reviewing the motion before it was filed.

In all seriousness, a guy who probably has earned a reduction in his sentence might not get it because of sloppy research. And this is a tragedy that will unfold many times over the coming years and, unfortunately, most of the time it will fly under the radar. Not every criminal case involves the star witness against a former president.

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

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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