{"id":27670,"date":"2023-05-30T12:18:48","date_gmt":"2023-05-30T16:18:48","guid":{"rendered":"https:\/\/abovethelaw.com\/?p=968551"},"modified":"2023-05-30T12:18:48","modified_gmt":"2023-05-30T16:18:48","slug":"what-could-possibly-go-wrong-when-a-lawyer-relies-on-chatgpt-to-write-a-brief","status":"publish","type":"post","link":"https:\/\/abovethelaw.com\/legal-innovation-center\/2023\/05\/30\/what-could-possibly-go-wrong-when-a-lawyer-relies-on-chatgpt-to-write-a-brief\/","title":{"rendered":"What Could Possibly Go Wrong When A Lawyer Relies On ChatGPT To Write A Brief?"},"content":{"rendered":"

\"\"Ed. note<\/u>: This is the latest in the article series, Cybersecurity: Tips From the Trenches<\/strong>,<\/em> by our friends at Sensei Enterprises<\/a>, a boutique provider of IT, cybersecurity, and digital forensics services.<\/em><\/p>\n

The Story of AI Gone Wrong Goes Viral<\/strong>
\nOn May 27, The New York Times published a story <\/a> about a lawyer who relied on ChatGPT to write a brief. What a story. Even on a holiday weekend, this tale went viral.<\/p>\n

The authors spend considerable time warning lawyers attending our artificial intelligence webinars to validate everything that ChatGPT produces. This story will now become a permanent and prominent part of the CLE that we dubbed: \u201cThe Rise of AI in the Legal Profession: Lawyers Brace for Impact.\u201d<\/p>\n

Ironically, ChatGPT suggested that title.<\/p>\n

The Facts of the Case<\/strong>
\nRoberto Mata sued the airline Avianca, claiming he was injured when a metal serving cart struck his knee on a flight to Kennedy International Airport in 2019.<\/p>\n

When Avianca requested that a Manhattan federal judge toss out the case, Mr. Mata\u2019s lawyers strenuously objected, submitting a 10-page brief that cited more than half a dozen relevant court decisions. There was Martinez v. Delta Air Lines<\/em>, Zicherman v. Korean Air Lines<\/em>, and Varghese v. China Southern Airlines<\/em>, with its learned discussion of federal law and \u201cthe tolling effect of the automatic stay on a statute of limitations.\u201d<\/p>\n

That all sounds plausible, right?<\/p>\n

Mysteriously, the airline\u2019s lawyers and the judge were unable to find the referenced decisions or the quotations cited and summarized in the brief.<\/p>\n

We know you can guess what happened. ChatGPT made it all up.<\/p>\n

The Unfortunate Lawyer Who is Now a Poster Child for Relying on ChatGPT<\/strong>
\nSteven A. Schwartz is a lawyer with the firm Levidow, Levidow & Oberman. On May 25, Schwartz threw himself on the mercy of the court, explaining in an affidavit that he had used the artificial intelligence program to do his legal research \u2014 \u201ca source that has revealed itself to be unreliable.\u201d<\/p>\n

Mr. Schwartz told Judge P. Kevin Castel that he had no intent to deceive the court or the airline. He said that he had never used ChatGPT, and \u201ctherefore was unaware of the possibility that its content could be false.\u201d So much for the ethical duty of competence with technology.<\/p>\n

Schwartz told Judge Castel that he had asked ChatGPT to verify that the cases were real and it replied that it had.<\/p>\n

How is it possible that he knew he needed verification but didn\u2019t understand that verification could not come from ChatGPT itself?<\/p>\n

Schwartz said he \u201cgreatly regrets\u201d relying on ChatGPT \u201cand will never do so in the future without absolute verification of its authenticity.\u201d<\/p>\n

Judge Castel said in an order that he had been presented with \u201can unprecedented circumstance,\u201d a legal submission full of \u201cbogus judicial decisions, with bogus quotes and bogus internal citations.\u201d The judge set a hearing for June 8 to discuss potential sanctions.<\/p>\n

Many lawyers will be carefully watching the outcome of that hearing.<\/p>\n

The Nuts and Bolts of a Case Gone Wrong<\/strong>
\nAfter Mr. Mata sued Avianca, the airline filed papers requesting dismissal of the case because the statute of limitations had expired.<\/p>\n

Mr. Mata\u2019s lawyers argued in a brief filed in March that the lawsuit should proceed, citing the references and quotes from many court decisions that we now know are false.<\/p>\n

Unsurprisingly, Avianca\u2019s lawyers wrote to Judge Castel, saying they couldn\u2019t locate the cases that were cited in the brief.<\/p>\n

With respect to Varghese v. China Southern Airlines<\/em>, they said they had \u201cnot been able to locate this case by caption or citation, nor any case bearing any resemblance to it.\u201d<\/p>\n

They highlighted a lengthy quote from the purported Varghese<\/em> decision contained in the brief. \u201cThe undersigned has not been able to locate this quotation, nor anything like it in any case,\u201d Avianca\u2019s lawyers wrote.<\/p>\n

The lawyers also pointed out that the brief cited a case called Zicherman v. Korean Air Lines Co. Ltd.<\/em>, an opinion purportedly handed down by the U.S. Court of Appeals for the 11th Circuit in 2008. They could not find that case either.<\/p>\n

Judge Castel ordered Mr. Mata\u2019s attorneys to provide copies of the opinions referred to in the brief. The lawyers submitted a compendium of eight; in most cases, they listed the courts and judges who issued them, the docket numbers and dates.<\/p>\n

The copy of the alleged Varghese<\/em> decision was six pages long and Mr. Mata\u2019s attorneys said it was written by a member of a three-judge panel of the 11th Circuit. But Avianca\u2019s lawyers told the judge that they could not locate that opinion, or the others, on court dockets or legal databases.<\/p>\n

Bart Banino, a lawyer for Avianca, said that his firm, Condon & Forsyth, specialized in aviation law and that its lawyers could tell the cases in the brief were not real \u2013 and suspected that a chatbot may have been involved. As it turned out, they were right.<\/p>\n

Mr. Schwartz did not respond to a message seeking comment, nor did Peter LoDuca, another lawyer at the firm, whose name appeared on the brief.<\/p>\n

Mr. LoDuca said in an affidavit that he did not conduct any of the research in question, and that he had \u201cno reason to doubt the sincerity\u201d of Mr. Schwartz\u2019s work or the authenticity of the opinions.<\/p>\n

The Judge and Mr. Schwartz Investigate<\/strong>
\nJudge Castel appears to have investigated on his own when he called for the June 8th hearing. He wrote that the clerk of the 11th Circuit had confirmed that the docket number printed on the purported Varghese<\/em> opinion was connected to a different case.<\/p>\n

Calling the opinion \u201cbogus,\u201d Judge Castel noted that it contained internal citations and quotes that were also nonexistent. He further indicated that five of the other decisions submitted by Mr. Mata\u2019s lawyers seemed to be fake.<\/p>\n

At this point, Mr. Mata\u2019s lawyers offered affidavits containing their version of what had happened.<\/p>\n

Mr. Schwartz wrote that he had originally filed Mr. Mata\u2019s lawsuit in state court, but after the airline had it transferred to Manhattan\u2019s federal court, where Mr. Schwartz is not admitted to practice, his colleague Mr. LoDuca became the attorney of record. Mr. Schwartz said he had continued to do the legal research without Mr. LoDuca\u2019s involvement.<\/p>\n

Mr. Schwartz said that he had used ChatGPT \u201cto supplement\u201d his own work and that, \u201cin consultation\u201d with it, found and cited the half-dozen nonexistent cases. He said ChatGPT had assured him that Varghese was a real case. He submitted a copy of the exchange with ChatGPT to the court.<\/p>\n

He asked for a source and ChatGPT gave him a legal citation.<\/p>\n

He asked if other cases the chatbot had provided were fake.<\/p>\n

ChatGPT replied, \u201cNo, the other cases I provided are real and can be found in reputable legal databases.\u201d<\/p>\n

However, those cases could not be found. ChatGPT simply made things up.<\/p>\n

Both lawyers, who work for the firm Levidow, Levidow & Oberman, have been ordered to explain why they should not be disciplined at the June 8th hearing.
\n
\nFinal Words<\/strong>
\nOther attorneys, including author Nelson, have had experience with ChatGPT citing non-existent cases, articles, books and invalid hyperlinks.<\/p>\n

As one leading law firm has advised its attorneys sternly, when using AI, \u201cYou must validate everything coming out of the system. You have to check everything.<\/strong>\u201d<\/p>\n

This case will certainly be a poster child for that advice.<\/p>\n

\n

Sharon D. Nelson<\/strong> (snelson@senseient.com) is a practicing attorney and the president of Sensei Enterprises, Inc. She is a past president of the Virginia State Bar, the Fairfax Bar Association, and the Fairfax Law Foundation. She is a co-author of 18 books published by the ABA.
\n
\nJohn W. Simek <\/strong>(jsimek@senseient.com) is vice president of Sensei Enterprises, Inc. He is a Certified Information Systems Security Professional (CISSP), Certified Ethical Hacker (CEH), and a nationally known expert in the area of digital forensics. He and Sharon provide legal technology, cybersecurity, and digital forensics services from their Fairfax, Virginia firm.
\n
\nMichael C. Maschke<\/strong> (mmaschke@senseient.com) is the CEO\/Director of Cybersecurity and Digital Forensics of Sensei Enterprises, Inc. He is an EnCase Certified Examiner, a Certified Computer Examiner (CCE #744), a Certified Ethical Hacker, and an AccessData Certified Examiner. He is also a Certified Information Systems Security Professional. <\/em><\/em><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Quite a bit actually.<\/p>\n","protected":false},"author":86,"featured_media":378512,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[11],"tags":[10909,10594,258,10782,10912,9731,10915,7],"class_list":["post-27670","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-technology","tag-avianca","tag-chatgpt","tag-cybersecurity","tag-generative-ai","tag-roberto-manca","tag-sensei-enterprises","tag-steven-a-schwartz","tag-technology"],"acf":[],"yoast_head":"\nWhat Could Possibly Go Wrong When A Lawyer Relies On ChatGPT To Write A Brief? - Above The Law's Legal Tech Non-Event<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/abovethelaw.com\/legal-innovation-center\/2023\/05\/30\/what-could-possibly-go-wrong-when-a-lawyer-relies-on-chatgpt-to-write-a-brief\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"What Could Possibly Go Wrong When A Lawyer Relies On ChatGPT To Write A Brief? 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