Legal Ethics

FUBAR (Also Known As 'What Were They Thinking?')

Does ChatGPT dream of electric chutzpah?

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I need a break…As even an occasional reader knows, I did not graduate from a pedigreed law school; in fact, my law school closed a number of years ago. Lawyers had and still have disdain for my pedigree-less status in the legal community. However, pedigree and the attendant aura surrounding it does not necessarily translate into good legal advice for clients.

The Dominion v. Fox litigation deserves another mention, especially considering the deep dive that the New York Times did into the thought processes — or lack thereof — that the Fox legal team displayed. The Times headline is “Missteps and Miscalculations: Inside Fox’s Legal and Business Debacle.” FUBAR anyone?

I have always thought (and I still do) that the job of any lawyer, especially one in-house, is to manage legal risk. The less risk, the better. The job of the business clients is to bring in the business through the front door; my job was to keep the dollars made from going out the back through verdicts, judgments, or settlements. If it was necessary to settle to make the case go away, the smaller the settlement, the better. After a while, fish, guests, and litigation stink.

When a division got whacked with a settlement for something that could have and should have been avoided — a something that affected the bonus pool and their individual compensations, not to say annual performance reviews — they got the message. It only took that one time. The result? Business people also started to look at legal risk as part of the business strategy.

Sometimes business people regarded me as the “voice of doom,” when I signaled possible trouble ahead. It was not my job to paint a rosy picture of what could happen; it was my job to give them realistic risk assessments. One never knows what a judge or jury is going to do.

I never wanted outside counsel to give me a rosy picture. I had my own set of crayons, What I wanted was an honest evaluation, that is, the good, the bad, and the ugly of the likelihood that a court and a jury would see it our way, figuring in the costs of defense. When pressed, they would reluctantly (bye-bye billables) agree that it made sense to resolve the matter and move on. (Outside counsel didn’t deliver unwelcome news to management.)

No one likes to be involved in discovery, whether it’s being deposed, having to produce truckloads of documents in various forms, or all the other minutiae of litigation. Time spent on those things is unproductive time, time taken away from the business of business.

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According to the article, the Fox board had seemingly been lulled into the assurances of counsel that the case was winnable at the trial court level, even in the face of a number of adverse rulings by the trial court. No board likes surprises, especially in pending litigation where the plaintiff’s demand is stratospheric and there’s extensive media coverage.

Of course, we’re not privy to the internal discussions about the litigation, but I can only surmise that there was a lot of jumping up and down and arm-wrestling about the risks of taking the case to trial. Sometimes it takes combat in the name of resolution.

Discovery in the case was a form of water torture, with each and every drip and dribble of emails, texts, and the like being made public, contributing to Fox’s discomfort, not to mention the effect on its board. The surprises just kept on coming. Stopping the bleeding became essential.

Why did the Fox legal team have confidence that, even if it lost in the trial court, an appeal could well go their way? Any guarantee? Who wants to test that theory years down the road, with the attendant costs, fees, and distractions from the business?

Clients who didn’t want to resolve always told me that it was the “principle” that they were fighting for. Principle is costly. Kenny Roger’s song, “The Gambler,” says it best.

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Another FUBAR: a plaintiff sued Avianca Airlines for injuries arising from an errant serving cart. However, six cases cited in plaintiff’s brief didn’t exist. And where did those bogus cases come from? Courtesy of ChatGPT.

Plaintiff’s counsel said he had never used ChatGPT before this brief and, of course, he apologized for his failure to do the heavy lifting of verifying the cases used. He claims that he was “unaware of the possibility that its content could be false.” Really? What cave has he been living in? When the attorney pressed ChatGPT as to whether the cases it had cited were indeed real, ChatGPT confirmed that they were. Do you think that ChatGPT replied with a straight face or whatever passes for a straight face with AI? Can ChatGPT have chutzpah?

Now the attorney is facing sanctions. So, which pays? The attorney or ChatGPT? Please. What if the matter is referred for disciplinary action? Which gets disciplined? ChatGPT has nothing to lose by screwing up, unlike attorneys.

As Joe Patrice correctly notes, don’t blame ChatGPT for what happened. It’s no different than blaming associates and or staff for any SNAFU or FUBAR. The responsibility (and liability) is the attorney’s, his and his alone, as it should be.

old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

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