By John Byrne
Let this be your daily reminder not to use fake cases in your briefs. The Eleventh Circuit devoted an entire section of its recent opinion in Akerlund et al. v. Atlas Air, Inc. to lambasting a lawyer for citing hallucinated cases in his brief even after he was warned. Opening that section by noting that it had “saved the worst for last,” the Court got into granular detail about the lawyer’s misuse of AI. Judge Grant wrote the opinion, joined by Judge Rosenbaum and Judge Kidd. The Court wrote:
"We expect that when lawyers submit briefs, they give us their best view of what the law is, and how that law supports their clients. We read those briefs carefully—not just because they are the product of counsel’s time, effort, and skill, but because they help us as we try to reach the right answer. All that is lost if a lawyer decides that it is not worthwhile to do the work to persuade us—if he is willing to sign his name on whatever a machine churns out without so much as checking it for accuracy. We cannot do our job the same way unless lawyers do theirs.” You can read the opinion here.
2 comments:
Two thoughts - First, I wish it didn't take hallucinated cases in a court filing for courts to call out--in a very public fashion like in this opinion--a lawyer's lack of competence. A large portion of our bar could use this kind of public shaming, whether they use AI or not. Second, but related to competence, HOW IS THIS STILL HAPPENING??? There have been so many other public shamings for hallucinated cases in the past 5 years. Yes, this was an appeal so, presumably, the case may have started in the district court before these shamings were as widespread. But as the Court makes clear, these hallucinations were in Sabatini's appellate brief. By then, he knew better.
There really needs to be a new parenthetical or citation convention when citing a hallucinated case. Footnote 5 is an invitation -- or at least breadcrumbs for a future data-scraping hallucinator -- to cite a fake case, perpetuated by the court through no fault of the court.
The court writes that it "read[s] those briefs carefully—not just because they are the product of counsel’s time, effort, and skill, but because they help us as we try to reach the right answer." You would think the primary reason they would read them is because we have a party presentation system and it is their job. But maybe the implication, if you read the opinion carefully, is the imperious judge need only glance at materials but may deign to truly consider them provided there is some basis to think it is worth their effort. I know it was a call to be better, but leaving out our adversarial and party presentation requirements (particularly a court so quick to find waiver) seemed a bit sloppy to me.
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