March 2, 2024

The Massachusetts Trial court recently confronted the misuse of artificial intelligence in memoranda filed in the Superior Court. As has recently been in the national news, this is not the first time that the use of AI gone awry has confronted judges or courts throughout the country.

In the case of Estate of Sandra Birchmore v. Town of Stoughton, et al, in the Norfolk Superior Court, Judge Brian Davis reviewed oppositions to various motions to dismiss that were filed. At the hearing, prior to taking up the merits, Judge Davis took up the issue out of the gate when the Court notified plaintiff’s counsel that some of the citations in his memoranda appeared to be fictitious. What ensued next was an odyssey of further hearings, internal review and mea culpas. Rightly so, and perhaps predictably, given the growing use and concern over AI, the Court delved into what occurred and how the fictitious citations came to be.

In a well-written decision, despite the sanction imposed, Judge Davis cited to some of the historical context of Generative AI and its impact on the legal profession and litigators in particularly. The Court recalled the order of Senior Judge P. Kevin Castel of the United States District Court for the Southern District of New York in the case of Mata v. Avianca, Inc., 1:2022CV01461, that has come down as one of the “most notorious reported cases involving attorney AI misuse that has emerged thus far.” Famously, Judge Castel noted that, “many harms flow from the submission of fake opinions.”  Unlike in Birchmore where counsel immediately corrected the record, was apologetic and contrite and reported out on the error, counsel in Mata doubled down, continuing to advocate for the points of law contained in the reported fictitious cases. While previously little was known to the public about AI, Judge Davis aptly noted  that “it is now known that AI ‘hallucinations’ are deceptive and difficult to detect.”

The Court’s broader message was as blunt as it was clear:  a wakeup call and a “broader lesson for the entire bar” to adhere to obligations under the Rules of Civil Procedure and the Rules of Professional Conduct to – yes – you guessed it – proofread briefs and memoranda submitted to the Court and make sure the submissions are accurate and truthful. In perhaps a foreboding prediction, Judge Davis warned, “[T]he blind acceptance of AI – generated content by attorneys undoubtedly will lead to other sanction hearings in the future, but a defense based on ignorance will be less credible, as the dangers associated with the use of generative AI systems become more widely known.”

Considering the increasing prevalence of AI and its use in various industries, we anticipate this is not the last we will hear of the misuse AI that are becoming more mainstream and widely used.

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