Judges and courts need to up the ante on asking probing questions of attorneys caught relying on AI hallucinations.
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In today’s column, I provide a helpful list of the crucial questions that judges and courts ought to be asking lawyers when those lawyers are caught using AI hallucinations. The reason to lean into these handy questions is to ferret out the full truth of the matter at hand. No more glazing over these professional conduct transgressions and accepting those wide-eyed woe-is-me claims that the attorney simply did not know that AI hallucinations could arise.
We can’t buy into that line anymore. Those times are over. The hammer must start coming down. If judges and courts are going to curtail this untoward practice, they must toughen up and undertake a suitable and entirely pragmatic inquiry into what the attorney knew, when they knew it, and otherwise hold their feet to the fire.
To assist judges and courts in carrying out that solemn mission, I have assembled a useful set of questions to be asked of any such transgressing attorney. Make sure to provide the questions in writing and require written responses to each question. If you only go the verbal route, a lot of slipping and sliding, dodging and weaving, will undoubtedly be utilized. Pin down the facts, just as you would in any form of adjudication.
I would also offer this polite suggestion. Attorneys need to see these questions right now, long before they land in big trouble. The mere act of reading these questions will serve as a heads-up to be on the watch for getting snagged by AI hallucinations. Of course, some sneaky attorneys might read these questions and proceed to rely upon AI hallucinations anyway. If they do so, and get nabbed by the court, they will likely find themselves in a bind because they will either need to admit to having seen these questions or misrepresent the truth and try to indicate they didn’t see them or perhaps “misunderstood” their significance (wink-wink).
In any case, I will go ahead and lay out the vital background on this whole saga and then dive into the crucial questions that need to be utilized. I sincerely hope that the use of these questions will finally stem the tide of attorneys relying upon AI hallucinations.
Let’s talk about it.
This analysis of AI breakthroughs is part of my ongoing Forbes column coverage on the latest in AI, including identifying and explaining various impactful AI complexities (see the link here).
As readers well know, I’ve been extensively covering and analyzing a myriad of facets regarding the intersection of AI and the law for many years. You can find my writings not only in my Forbes column but also as posted in Bloomberg Law, ABA Law Journal, The National Jurist, The Global Legal Post, Lawyer Monthly, The Legal Technologist, MIT Computational Law Journal, and so on.
I have extensively examined the repercussions for attorneys who have used AI-hallucinated elements in their legal briefs; see my coverage at the link here and the link here. The situation usually is that an attorney opts to include fake legal citations or fictitious quotations about legal cases, having generated those via the sloppy use of generative AI and large language models (LLMs).
I’ve frequently noted that until the courts impose stiffer penalties, or until lawyers wake up and use suitable double-checking procedures and tools, this phenomenon is going to continue. There is a constant drumbeat of lawyers contending they had no idea that AI could produce bad references or bogus quotes. Though this might have seemed plausible when generative AI first hit the scene, the claims of innocence now seem quite hollow. Most savvy attorneys raise their eyebrows when a caught red-handed lawyer tries to plead ignorance of these matters. It does not compute anymore.
Daily bulletins in the legal community keep highlighting lawyers who have used AI to prepare their court filings and ended up with fake legal citations and false quotations in their documents. These errors in legal briefings can potentially occur due to AI hallucinations. An AI hallucination is when generative AI or large language models (LLMs) such as ChatGPT, Claude, Grok, Gemini, CoPilot, Llama, and other AIs veer into generating fictitious confabulations. For my in-depth coverage of AI hallucinations, see the link here and the link here.
I had long ago predicted that attorneys using AI might get careless in their legal efforts and allow the AI to produce bogus content and not double-check by hand what the AI has generated for them (see my prediction in 2023, at the link here).
The problem for attorneys is that when they submit formal court filings, they are supposed to be responsible for the contents of the filings; thus, if AI has slipped in faked citations or false quotations, the lawyer is likely to be held accountable since they didn’t catch the erroneous content. I say “likely” accountable because judges and courts have been quite lenient so far, overall, and allowed excuses such as “the computer did it”. Attorneys often incur nothing more than a minor hand slap or mild rebuke, asserting that AI is new to the legal beagles and they were caught unawares. Sometimes, the reprimands are accompanied by a modest financial sanction or penalty, which is gradually ratcheting up as these instances continue to climb.
Judges and courts are beginning to lessen their patience and sense of charity in giving lawyers the benefit of the doubt. For the time being, the matter is still generally being treated with kid gloves. The expectation is that lawyers are facing a learning curve, and a bit more time is required before they will be able to properly handle the use of AI. In my view, more than enough time has already passed.
Stop coddling legal pros that are supposed to remain on top of the latest technological aspects when performing their legal services (see my coverage of ABA Formal Opinion 512, at the link here, which was promulgated on July 29, 2024, nearly two years ago!).
I recently examined the somewhat rare situation of attorneys that fail to detect that the opposing side has made use of AI hallucinations in their legal filings in a court case; see the link here. The question there is whether the attorney that doesn’t catch the mistakes of their opposition ought to receive any sanctions or penalties. There are tradeoffs involved, which I analyzed at length in my posting.
There is another new twist that is garnering attention, namely the exasperating circumstance of both sides of a case relying on AI hallucinations at the same time; see my analysis at the link here. You might be shocked to think that this could happen. It’s one thing for an attorney on one side to make such an error, but having both simultaneously do this is astonishing and dismaying. It is a justice-undermining abomination since neither side caught the other side doing so. This is an affront to the adversarial system of justice.
Some judges have no idea what kinds of questions they should ask when an attorney is caught using AI-hallucinated citations or quotations. It is new territory for them. Maybe the judge knows very little about AI. A few years ago, many judges were in the dark about AI hallucinations. Since they didn’t understand AI, they were willing to give grace to attorneys that seemingly fell into AI traps. The judges also didn’t want to venture into a topic that they themselves were confused about or uninformed on. This opened Pandora’s box for attorneys to slide into using AI-hallucinated content.
I’ve put together a helpful set of probing questions that you can easily use as a written inquiry to an attorney that allegedly has made use of AI hallucinations. I say allegedly because the foul citations and quotations don’t necessarily have to be produced by AI. Perhaps a paralegal or assistant composed the false items themselves by hand or by doing online searches. Maybe the attorney did so.
Believe it or not, some attorneys realize they are on safer ground to claim that AI did it, rather than admitting to the fact that they did so by hand or someone else manually did it. Why in the world would an attorney want to pin this on AI? Because they know that AI as an excuse is a handy cover story. The attorney becomes the unfortunate victim. It’s that dastardly AI that tricked them.
This has been working well with some courts, so it is absolutely a worthy Hail Mary plea. Usually, the judge will shrug their shoulders, acknowledge the mysteries of AI, and move on. The lawyer doesn’t have to reveal the true ugly aspects of how they got themselves into the mess.
I provide here a set of over one hundred questions that are arranged into twelve distinct sections and can be readily used by judges and courts. The questions at times are purposely semi-overlapping to try and discern that the responses are consistent and fully considered.
The twelve sections consist of:
The set is not cast in stone. You are welcome to remove sections, add sections, remove questions, add questions, reword questions, and so on. Generally, I don’t recommend removing any of the sections since they each provide a crucial glimpse into the matter at hand. It’s up to you to determine what is best for the circumstance.
Let’s go through the sections and questions. Afterward, I will have some overarching remarks.
I am sure that any attorney who is given such a set of questions is going to balk at the length and magnitude of what they are being asked to respond to. Again, it’s up to you as to whether to let the attorney off the hook. For any question you remove, you are generally allowing a loophole that the attorney can possibly use to avoid being fully apparent on what has transpired.
The purpose of the questions is to get to the truth of the matter. It is not some kind of punishment or idle fanfare. Any attorney caught using AI hallucinations should be fully prepared to straightforwardly explain themselves. If they won’t do so, I’d suggest that your Spidey-tingling sensation should be triggered.
The questions are entirely focused on the issues entailing AI hallucinations. There is no dilly-dallying. There isn’t any fluff. Each section and each question is entirely appropriate and applicable.
By providing these written questions to the attorney, you can then hold them accountable to what they are supposed to do when responding to you on this matter. And, importantly, you are to ensure that they provide their answers in writing. This process reduces chances of claims of confusion, bewilderment, and other whininess. They are given a clear-cut set of questions and expected to provide a clear-cut set of responses.
Some judges might prefer to nonchalantly ask the attorney what happened, listen to their responses, and swiftly decide what to do. It is an easy-going inquiry. This would seem cordial and collegial. Do a brief query. Move on.
That’s not an advisable process.
Keep in mind that any declaration of sanctions, penalties, rebukes, etc. will potentially be considered by the attorney as unfair, unbalanced, improper, and they are bound to legally aim to fight the decree. Even if the attorney during the chat seems low-key, contrite, and eager to conclude the matter, do not expect they will take the thumping with aplomb. Few would. The meek cat will later roar like a lion.
A judge should anticipate that an appeal will possibly be undertaken. If that arises, a judge that did a mere off-the-cuff decision is probably going to be on much looser ground than one that had the attorney complete an extensive questionnaire, and for which the responses became fodder for the ascertained consequences. A mindful judge should explain in writing their logic of how they reached the declared consequences, doing so as cogently tied to the written questions and written answers.
Remember the wise words of John Quincy Adams: “Whoever tells the best story wins.”
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