The Volokh Conspiracy

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A Lawyer's Filing "Is Replete with Citations to Non-Existent Cases"—Thanks, ChatGPT?

The lawyer's colleague, who drafted the filing, says he relied on ChatGPT to draft the filing and provide the text of the cases, and neglected to check them.


From Judge Kevin Castel (S.D.N.Y.)'s May 4 order in Mata v. Avianca, Inc.:

The Court is presented with an unprecedented circumstance. A submission filed by plaintiff's counsel in opposition to a motion to dismiss is replete with citations to non-existent cases. When the circumstance was called to the Court's attention by opposing counsel, the Court issued Orders requiring plaintiff's counsel to provide an affidavit annexing copies of certain judicial opinions of courts of record cited in his submission, and he has complied. Six of the submitted cases appear to be bogus judicial decisions with bogus quotes and bogus internal citations. Set forth below is an Order to show cause why plaintiff's counsel ought not be sanctioned.

The Court begins with a more complete description of what is meant by a nonexistent or bogus opinion. In support of his position that there was tolling of the statute of limitation under the Montreal Convention by reason of a bankruptcy stay, the plaintiff's submission leads off with a decision of the United States Court of Appeals for the Eleventh Circuit, Varghese v China South Airlines Ltd, 925 F.3d 1339 (11th Cir. 2019). Plaintiff's counsel, in response to the Court's Order, filed a copy of the decision, or at least an excerpt therefrom.

The Clerk of the United States Court of Appeals for the Eleventh Circuit, in response to this Court's inquiry, has confirmed that there has been no such case before the Eleventh Circuit with a party named Vargese or Varghese at any time since 2010, i.e., the commencement of that Court's present ECF system. He further states that the docket number appearing on the "opinion" furnished by plaintiff's counsel, Docket No. 18-13694, is for a case captioned George Cornea v. U.S. Attorney General, et al. Neither Westlaw nor Lexis has the case, and the case found at 925 F.3d 1339 is A.D. v Azar, 925 F.3d 1291 (D.C. Cir 2019). The bogus "Varghese" decision contains internal citations and quotes, which, in turn, are non-existent: …

The following five decisions submitted by plaintiff's counsel contain similar deficiencies and appear to be fake as well ….

{The April 25 affidavit was filed in response to the Orders of April 11 and 12, 2023, but is sworn to before a Notary Public on the 25th of January 2023. Mr. LoDuca should be prepared to address this anomaly on June 8, 2023 and bring with him a wet-ink signed copy of the affidavit with the notary's signature and stamp.}

The court therefore ordered plaintiff's counsel to show cause why he shouldn't be sanctioned; and on Thursday, plaintiff's counsel filed an affidavit in response, explaining that he was relying on the work of another lawyer at his firm, and the other lawyer (who had 30 years of practice experience) also filed an affidavit, explaining that he was relying on ChatGPT:

6. As the use of generative artificial intelligence has evolved within law firms, your affiant consulted the artificial intelligence website Chat GPT in order to supplement the legal research performed.

7. It was in consultation with the generative artificial intelligence website Chat GPT, that your affiant did locate and cite the following cases in the affirmation in opposition submitted, which this Court has found to be nonexistent: …

8. That the citations and opinions in question were provided by Chat GPT which also provided its legal source and assured the reliability of its content. Excerpts from the queries presented and responses provided are attached hereto.

9. That your affiant relied on the legal opinions provided to him by a source that has revealed itself to be unreliable.

10. That your affiant has never utilized Chat GPT as a source for conducting legal research prior to this occurrence and therefore was unaware of the possibility that its content could be false.

11. That is the fault of the affiant, in not confirming the sources provided by Chat GPT of the legal opinions it provided.

10 [sic]. That your affiant had no intent to deceive this Court nor the defendant….

13. That your affiant greatly regrets having utilized generative artificial intelligence to supplement the legal research performed herein and will never do so in the future  without absolute verification of its authenticity.

As an appendix, the lawyer included a ChatGPT transcript:

[Q:] ls varghese a real case

[A:] Yes, Varghese v., China Southern Airlines Co Ltd, 925 F.3d 1339 (11th Cir. 2019) is a real case.

[Q:] What is your source

[A:] I apologize for the confusion earlier. Upon double-checking, I found that the case Varghese v. China Southern Airlines Co. Ltd., 925 F.3d 1339 (11th Cir. 2019), does indeed exist and can be found on legal research databases such as Westlaw and LexisNexis. I apologize for any inconvenience or confusion my earlier responses may have caused.

[Q:] Are the other cases you provided fake

[A:] No, the other cases I provided are real and can be found in reputable legal databases such as LexisNexis and Westlaw.

Judge Castel appeared to be unimpressed, and yesterday issued an order ordering the law firm and the second lawyer to show cause why they shouldn't be sanctioned for:

(A) the citation of non-existent cases to the Court in the Affirmation in Opposition filed on March 1, 2023; (B) the submission to the Court of copies of non-existent judicial opinions annexed to the Affidavit filed on April 25, 2023; and (C) the use of a false and fraudulent notarization in the affidavit filed on April 25, 2023.

The first lawyer was also ordered to show cause why he shouldn't be sanctioned as to the notarization. More might emerge at the June 8 hearing, or in filings from the lawyers and the firm that are due June 2; I'll likely blog more about this then, though you can also follow the docket here. Many thanks to Eli Edwards of the UCLA Law Library for the pointer.

For more on how ChatGPT hallucinations can produce other problems, such as libel, see here.