Judicial Notice (05.27.23): ChatGPT, FML

An AI epic fail, a surprising SCOTUS alliance, a merger of Biglaw behemoths, and other legal news from the week that was.

New SCOTUS besties? Justice Ketanji Brown Jackson and Justice Neil M. Gorsuch (via Getty Images).

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!

Greetings from the Berkshires, where Zach and Harlan and I are spending the Memorial Day weekend with Zach’s family. The weather has been amazing, and it’s nice to decompress after a busy week.

On Monday, I joined Irene Liu of Berkeley Law on her Coffee Break webinar, discussing current trends in the legal industry. On Tuesday, Zach Sandberg and I recorded a new episode of Movers, Shakers & Rainmakers, interviewing Ed Wisneski of Rimon Law—listen and learn about the firm’s innovative business model, incredible growth, and how to pronounce “Rimon.” On Wednesday, I spoke at Boies Schiller Flexner for Asian American and Pacific Islander Heritage Month, engaging in a “fireside chat” with Virginia Su about the progress made by the AAPI community in the legal profession. May is pretty much done, but June is just around the corner; if you’re looking for a speaker for Pride Month, whether in-person or over Zoom, drop me a line.

In terms of media mentions, I received a shoutout in this great New York Times piece about Dominion v. Fox, for my March 2021 interview of Viet Dinh, chief legal and policy officer at Fox. If you’re curious about how that $787.5 million settlement came into being from the Fox side, the piece is well worth reading. For a view of the case from the Dominion side, check out my podcast interview with Tom Clare and Libby Locke of Clare Locke, one of the law firms that represented Dominion.

Now, on to the news.

Lawyers of the Week: Steven Schwartz and Peter LoDuca.

When it comes to artificial intelligence, my view can be summed up by screenwriter William Goldman’s famous quip about Hollywood: “Nobody knows anything.” It’s far too early to assess what effect AI will have on society, including but not limited to the legal profession.

Take ChatGPT, the wildly popular chatbot developed by OpenAI. It’s amazingly good—at coming up with martini recipes (or so my martini-loving friends tell me), writing blog posts in the voice of my former colleague Elie Mystal, and… getting lawyers into trouble with the court. From Benjamin Weiser of the New York Times:

The lawsuit began like so many others: A man named Roberto Mata sued the airline Avianca, saying he was injured when a metal serving cart struck his knee during a flight to Kennedy International Airport in New York.

When Avianca asked a Manhattan federal judge to toss out the case, Mr. Mata’s lawyers vehemently objected, submitting a 10-page brief that cited more than half a dozen relevant court decisions. There was Martinez v. Delta Air Lines, Zicherman v. Korean Air Lines and, of course, Varghese v. China Southern Airlines, with its learned discussion of federal law and “the tolling effect of the automatic stay on a statute of limitations.”

There was just one hitch: No one—not the airline’s lawyers, not even the judge himself—could find the decisions or the quotations cited and summarized in the brief.

That was because ChatGPT had invented everything.

Amazing. And now two lawyers representing Mata—Steven Schwartz of Levidow Levidow & Oberman, who “wrote” the brief, and his colleague Peter LoDuca, who put his name on it—are facing possible sanctions. Judge Kevin Castel (S.D.N.Y.) has scheduled a June 8 hearing to discuss how to proceed. (To read the underlying filings, check out this Volokh Conspiracy post by Professor Eugene Volokh.)

I’d urge Judge Castel to go relatively easy on Schwartz and LoDuca. I don’t think they intended to mislead the court or opposing counsel; they were just… boneheads. And their epic fail has actually provided a valuable lesson to lawyers across the country: when it comes to ChatGPT, trust (a little), then verify—a lot, using sources other than ChatGPT itself. (According to an appendix that Schwartz included with his affidavit, he asked ChatGPT questions like “is varghese a real case,” and ChatGPT responded, with its trademark confidence, “Yes, Varghese v. China Southern Airlines Co. Ltd., 925 F.3d 1339 (11th Cir. 2019), is a real case…. and can be found on legal research databases such as Westlaw and LexisNexis.”)

Some of my snobbier readers might be thinking, “These are amateurish mistakes by a bunch of personal-injury lawyers—this would never happen in Biglaw.” If that’s your reaction, think again—at least when it comes to work product from junior associates. According to Professor Dennis Crouch (also via Volokh), one Biglaw partner recently reported receiving memos with fake case cites from at least two different associates. When I speak at law schools, I’m sometimes asked for tips for summer associates, so here’s one: don’t cite fictional cases from ChatGPT. (For additional advice, see Alex Su, one of my favorite folks to read about law and technology; apparently the technical term for AI making s**t up is “hallucination.”)

Runner-up for Lawyer of the Week: Texas Attorney General Ken Paxton, who this weekend became the first statewide officeholder to be impeached in over a century. The vote to impeach him, based on a series of bribery and corruption allegations, was a bipartisan 121-23. I haven’t been following this story too closely, but here are two fun facts: (1) one of the allegations is that he used his office to help a political donor, who then gave Paxton’s mistress a job, and (2) Paxton now faces a trial in the State Senate, where one of the 31 members is… his wife, Senator Angela Paxton.

On a more personal level, I’d like to give a shoutout to my former colleague, V. Grady O’Malley, who after playing in the NBA went on to serve as a federal prosecutor in New Jersey for almost 50 years (1977-2023). Over his long and distinguished career as an assistant U.S. attorney, which was focused on fighting organized crime and labor racketeering, he completed more than 120 federal jury trials—with only three acquittals. This week was his retirement celebration—and it was quite an event, with congratulatory messages from two former U.S. Attorneys for New Jersey, Justice Samuel Alito and former governor Chris Christie; two former AUSAs turned judges, New Jersey Chief Justice Stuart Rabner and Third Circuit Judge Patty Shwartz; and U.S. Attorney General Merrick Garland. I add my kudos to Grady on his remarkable career, as well as my thanks for his many years of public service.

Speaking of legal legends, a leading figure in conservative legal circles, C. Boyden Gray—who served as White House counsel under President George H.W. Bush and ambassador to the European Union under President George W. Bush, among other important government posts—passed away at 80, from a heart ailment. In addition to his obituary in the Washington Post, you can read more personal reflections from Adam Gustafson, one of his former law partners. Boyden Gray, rest in peace.

Judges of the Week: Justices Neil Gorsuch and Ketanji Brown Jackson.

As I’ve made clear in my coverage of free speech and intellectual diversity, I’m a big proponent of finding common ground with people you generally disagree with. So I noticed—and was pleased to see—the interesting alliance that has emerged this Term between Justice Neil Gorsuch, of the conservative wing of the Supreme Court, and Justice Ketanji Brown Jackson, on the other side of the aisle.