Paul Grimm, retired federal judge and director of the Bolch Judicial Institute at Duke University School of Law, and Maura Grossman, adjunct professor at York University Osgoode Hall Law School in Toronto, both told Law360 Pulse that they agree with the Fifth Circuit's decision and hope other courts follow its example by not adopting AI rules.
Grimm said in an email Tuesday that the Fifth Circuit made a "wise choice" by not adopting the proposed rule and that the court doesn't need such a rule.
"The rules of practice and procedure and ethical obligations already require diligence and certification that the facts and law cited are accurate and arguments are in good faith, factually supported and legally sound. And there are already plenty of sanctions available if you fail to comply with these rules," he said. "Bottom line, you don't need a special AI rule, and the court was wise to reach that conclusion."
Grossman said that the standing orders on AI that have been issued by federal judges so far are inconsistent and unclear about what is included in them, creating confusion about what must be disclosed.
"District courts have taken different approaches to the use of AI or generative AI in the preparation of court filings — from warnings to requirements to preserve all prompts, to having senior trial attorneys verify all the case citations, to outright prohibition. Inconsistency like this drives up the cost of litigation and increases the likelihood of errors when lawyers practice in multiple courts," she said.
Two percent of more than 1,600 U.S. district and magistrate judges have issued 28 standing orders on AI as of June, according to a Law360 Pulse tracker. Some of the orders issued have been signed by more than one federal judge.
Most of the orders allow attorneys and self-represented litigants to use AI-generated content in their court filings as long as they disclose what content was produced by AI and certify that the AI-generated content is accurate.
More than a third of the orders were issued May 2023 through July 2023, after it came to light that two New York personal injury attorneys submitted a ChatGPT-generated brief with fake case citations. The attorneys were ultimately sanctioned for their mistake.
Since the New York case, several other courts, including Texas and Missouri state appeals courts, have called out litigants for submitting AI-generated court filings with fake case citations. A Manhattan federal judge criticized a law firm for using ChatGPT to support its attorney fee request of more than $100,000.
Law scholars and judges are divided over AI standing orders and whether they are the best way to address concerns with the use of the technology in court filings.
Judges told Law360 Pulse in March that they think their standing orders can educate attorneys and pro se litigants about the risks of AI and can promote transparency about use of the technology.
However, law scholars are concerned judges' AI standing orders might discourage attorneys from using the technology and create more barriers for self-represented litigants.
In November, the Fifth Circuit sought public comments on a proposed rule requiring attorneys to verify that court filings were not written using generative AI, or if they were, that they were checked for accuracy by humans.
In the comments, attorneys were split on the proposed rule. Several lawyers said the proposed rule change was unnecessary, pointing out that court rules already require attorneys to check their filings for accuracy, while some lawyers argued the proposed rule should be stricter.
Daniel Linna, senior lecturer and director of law and technology initiatives at Northwestern University Pritzker School of Law, told Law360 Pulse in an email Wednesday that he expects the Fifth Circuit's decision to dissuade other judges and courts from issuing orders on AI use, and that those that have issued orders should revoke them.
"Other courts and judges ought to recognize that adding rules on AI usage would be duplicative and will not solve the problem," he said. "Worse yet, rules like these will have a chilling effect on the use of AI tools, including vetted tools created by legal aid organizations."
--Editing by Robert Rudinger.
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