(Last Updated On: )

Generative artificial intelligence is making a bad first impression in the courts. Manhattan federal judge Edgardo Ramos recently described ChatGPT as an “unreliable resource,” and he’s not alone in expressing such concern about AI.
The recent decisions addressing use of generative AI by lawyers in New York federal courts demonstrate a persistent skepticism of the technology among the judiciary.
US District Judge Kevin Castel sanctioned lawyers in Mata v. Avianca last year for “abandon[ing] their responsibilities when they submitted non-existent judicial opinions with fake quotes and citations created by the artificial intelligence tool ChatGPT.” The case made national headlines.
Since that time, some Manhattan federal judges have shone a bright line against any use of ChatGPT, repeatedly underscoring its purported unreliability beyond the context of basic legal research and citations.
For example, in the aforementioned case of Z.H. v. N.Y.C. Dep’t of Educ., Judge Ramos admonished a law firm for submitting questions and answers posed to and generated by ChatGPT as evidence of reasonable attorney hourly rates in support of an application by the firm for attorneys’ fees.
Ramos afforded no weight to the ChatGPT Q&A and noted that US Magistrate Judge Robyn Tarnofsky in D.S. v. N.Y.C. Dep’t of Educ. declined to credit a similar submission by the same lawyers “because ChatGPT has been shown to be an unreliable resource.”
Tarnofsky, in turn, supported her conclusion by citing to a line of cases where ChatGPT generated fake legal authorities, among which was Park v. Kim, a recent medical malpractice dispute, where the US Court of Appeals for the Second Circuit described how certain technologies that “may produce factually or legally inaccurate content” shouldn’t replace “the lawyer’s most important asset—the exercise of independent legal judgment.”
In JG. v. NYC. Dep’t of Educ. earlier this year, US District Judge Paul Engelmayer took exception to the lawyers’ failure to identify the “inputs on which ChatGPT relied” or to address “whether ChatGPT anywhere considered” key legal precedents.
Courts aren’t inclined to impose a bright-line rule prohibiting attorneys’ use of generative AI. In Sillam v. Labaton Sucharow, US Magistrate Judge Ona Wang expressed skepticism about attorneys’ use of generative AI tools for brief writing, but maintained that attorneys have a “gatekeeping role” to “ensure the accuracy of their filings.” Wang was also critical of the quality of the writing produced by generative AI tools, noting they resulted in “repetitive language” that “only restates general principles of law without making argument.”
Likewise, in Mata, Judge Castel rejected the application of a bright-line rule against generative AI tools, noting that “[t]echnological advances are commonplace and there is nothing inherently improper about using a reliable artificial intelligence tool for assistance.”
Integration of AI tools into litigation practice won’t be limited to conducting legal research and writing briefs. Law firms are beginning to employ generative AI to facilitate and streamline document review and production. These tools may help attorneys to determine responsiveness to discovery requests, among other tasks.
Already, judges routinely require parties to exchange keyword search terms during discovery; it’s only a matter of time before judges require parties to exchange information concerning their use of AI tools in discovery. This, in turn, is likely to implicate the attorney-client privilege and work product doctrine.
The prompts that attorneys input into generative AI tools to assist in brief writing are likely to be privileged and protected from disclosure under the work product doctrine. On the other hand, AI prompts used by attorneys to determine the relevance of certain documents in an action may not be subject to such privilege, just as keyword search terms are not privileged and are subject to disclosure.
The limited case law and public statements by judges concerning AI suggest that attorneys using generative AI should be prepared to explain to courts how they used AI, the sources of information the AI tool considered and relied upon, and that any use of AI was subject to their supervision and review. Likewise, there is bound to be litigation concerning the discoverability of such tools and its tension with the attorney work product doctrine and other applicable privileges. All of this has implications for Rule 26 of the Federal Rules of Civil Procedure—stay tuned.
Culled from https://news.bloomberglaw.com/
The post Courts Remain Skeptical Of Lawyers’ Use Of ChatGPT In Litigation appeared first on TheNigeriaLawyer.