Another Federal Judge Issues a Standing Order for When "AI Has Been Used in Any Way in the Preparation of Filings"

From Judge Michael Baylson (E.D. Pa.), issued last week:

If any attorney for a party, or a pro se party, has used Artificial Intelligence ("AI") in the preparation of any complaint, answer, motion, brief, or other paper, filed with the Court, and assigned to Judge Michael M. Baylson, MUST, in a clear and plain factual statement, disclose that AI has been used in any way in the preparation of the filing, and CERTIFY, that each and every citation to the law or the record in the paper, has been verified as accurate.

Thanks to Jake Karr for the pointer. For more such orders, see here and here.

UPDATE: I had originally titled described the order as being "regarding AI-generated documents," but as some commenters have pointed out, it actually covers all use of AI; I've revised the title accordingly.

Comments

[Kleppe]

Are lawyers not already required to verify as accurate "each and every citation to the law or the record"? If not... well, then this non-lawyer has a lot of questions.

[David Nieporent]

Rule 11, yes. (For federal court; presumably every state has the equivalent.)

The point of this isn't to prove it to the court; the point is to put attorneys on notice so they can't say (as the NY ChatGPT lawyers did), "hey, I didn’t know this could happen."

[Bored Lawyer]

I agree that's the intent. The problem is, the warning is not needed for most lawyers, and for this who need it, it will be ineffective.

[kotodama]

But it doesn't require any action by a lawyer (or nonlawyer) who didn't use AI, so what's the big deal?

[Bored Lawyer]

I don't think it's a "big deal." But precisely because most lawyers will not use it and will therefore not provide the certification, the lawyers who do will remain ignorant of it. Most of them don't bother to read the individual rules of the judge.

Now compare this with a provision of Rule 37 of the Federal Rules of Civil Procedure, which govern discovery motions:

On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

That certification is required of everyone, so it is generally known among lawyers.

[Rev. Arthur L. Kirkland]

If any attorney for a party, or a pro se party, has used Artificial Intelligence (“AI”) in the preparation of any complaint, answer, motion, brief, or other paper, filed with the Court, and assigned to Judge Michael M. Baylson, MUST, in a clear and plain factual statement, disclose that AI has been used in any way in the preparation of the filing, and CERTIFY, that each and every citation to the law or the record in the paper, has been verified as accurate.

That is not a sentence, but Judge Baylson came relatively close.

Almost.

[Kleppe]

This public-educated Midwestern eye sees both a subject and a predicate in the judge's order. Have you hallucinated there being something more required?

[Magister]

I think the subject for MUST is missing (and presumably would be the same subject for CERTIFY).

It could either be "Any attorney or pro se party ... MUST" or "If any attorney or pro se party uses AI, they MUST".

[Kleppe]

Artie insisted the order was "not a sentence", and I replied that it had both a subject and a predicate (i.e., it is in fact a complete sentence). What I did not do, however, is say it was 100% grammatically correct. But having a misspelled word or any other minor typographical error doesn't make a sentence cease to be.

[santamonica811]

I also saw (to my eye) the missing word[s] right away as I first read the excerpt.

[kotodama]

The irony of having a glaring typo in an order like this is overwhelming.

[Rev. Arthur L. Kirkland]

Why conclude it's a typo? The random use of all-capitalized words signals poor writing more than a typographical error.

[kotodama]

It's what Magister and 811 already said above.

Also, while short of a typo (or however you want to describe a drafting mistake where you omit or arrange words such that a sentence ends up being ungrammatical and/or unintelligible), this phrase is also something of a clunker too: "disclose that AI has been used in any way in the preparation of the filing." It's at least grammatical—barely—and the meaning can be roughly discerned with a fair bit of effort, but man, is that awkward. A better way to put it would have been, e.g.: "disclose all ways in which AI has been used..."

I think now this judge and/or his clerks need to certify that they aren't the ones using generative AI.

[David Nieporent]

No, it doesn't. Hard to believe you pretend to be a lawyer.

[AtR]

This is silly ... along the lines of "if you do this again, I'll ask you to stop again."

If you want to put a stop to fake citations ... start issuing fines.

[kotodama]

The title of this post is not accurate. The order is not specific to "AI-generated" documents. In fact, it doesn't even use the word "generate(d)" anywhere.

Instead, the order covers a situation AI was "used ... in the preparation" of a document. That is arguably a fair measure broader than just AI-based document generation. For example, if people query a search engine to find any content for a brief etc.—be it caselaw citations or something else—they have likely still "used" AI. So that would fit into the order too.

Of course, there's also a question of interpreting "in the preparation." Does my scenario—which involves taking some content output by AI, but not using AI to generate a filing directly—qualify as that? I think so. For example, later in the order it mentions the statement has to "disclose that AI has been used in any way in the preparation of the filing." My scenario would seem to involve using AI in at least some way to prepare a document.

[Archibald Tuttle]

In a bit of marketing excess, I claim that my word processing software is AI enhanced. Also my printer has AI features. Can't he see that every product in the world will be claiming AI content as a marketing gimmick.

It's really stupid to make an order like this without defining what an AI is.

[kotodama]

Very true. All of it—the poor drafting, the half-baked concept—just screams out "hasty gimmick."

Plus, as a practical matter, this is one standing order by a single senior judge, who's also 84 years of age. So its long term prospects for having any impact seem fairly dim.

[Social Justice is neither]

Overall I don't see a problem with requirements that your citations are real.

[Kleppe]

Yes, but as others have pointed out that's already required.