The Volokh Conspiracy
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Court Notes Apparently Nonexistent Precedents Cited in Brief, Suggests Brief May Have Been Partly AI-Written
From Ex parte Lee, decided last week by the Tenth District Texas Court of Appeals, in an opinion by Chief Justice Tom Gray, joined by Justices Matt Johnson and Steven Lee Smith:
Allen Michael Lee is charged with one count of aggravated sexual assault of a child and two counts of sexual assault of a child. Bail amounts were set at $400,000 in total for the three charges. He has not been able to make bail. He filed a pre-trial application for a writ of habeas corpus asking to either be released or have bail reduced to $15,000 total. After a hearing, the trial court denied Lee's application.
In one issue, Lee contends the trial court abused its discretion in denying Lee's request for a bail/bond reduction. Specifically, he contends the initial bail set was excessively high and that the trial court abused its discretion by denying his application without an explanation.
In presenting error to this Court, an appellant's brief must contain a clear and concise argument of the contentions made with appropriate citations to authorities and to the record. That has not occurred in this case. In the "Standard of Review" and "Applicable Law" sections of his brief, Lee cites to the general, applicable case law and statutes.
However, in his "Argument" section, where appropriate citations must be included, Lee cites to five cases to support the two sub-arguments to his issue. Only three of those five cases are published. None of the three published cases cited actually exist in the Southwest Reporter. Each citation provides the reader a jump-cite into the body of a different case that has nothing to do with the propositions cited by Lee. Two of the citations take the reader to cases from Missouri. As the State points out, even Texas cases with the same names as those cited by Lee do not correspond with the propositions relied upon. [A footnote lays out the details, quoting the State's brief. -EV]
Further, as again noted by the State, the brief is devoid of any citations to the record. These deficiencies, although brought to the Court's and to Lee's attention by the State in its brief to this Court, were neither contested nor corrected by Lee in any kind of reply, amended, or supplemental brief.
{Based upon a recent Texas Bar CLE, "Have the Robot Lawyers Finally Arrived? Practical Concerns and Ethical Dimension of ChatGPT," presented by John G. Browning of Spencer Fane LLP, it appears that at least the "Argument" portion of the brief may have been prepared by artificial intelligence (AI). To avoid this problem, Federal District Court Judge, Brantley Starr, requires the following certification for pleadings filed in cases pending in his court [see this post for the text, which I omit here -EV] ….
Because we have no information regarding why the briefing is illogical, and because we have addressed the issue raised on appeal, we resist the temptation to issue a show cause order as a New York federal district judge did in Mata v. Avianca, Inc., 2023 WL 3696209, 2023 U.S. Dist. Lexis 94323 (S.D.N.Y., May 4, 2023, order), or report the attorney to the State Bar of Texas for a potential investigation for a violation of the State Bar rules.}
Thus, Lee inadequately briefs his sole issue on appeal. The failure to adequately brief an issue presents nothing for us to review, and we are not required to make an appellant's arguments for him. Accordingly, because Lee inadequately briefs his sole issue, it presents nothing for our review and is overruled.
I tried to reach the author of Lee's brief, Craig Alan Greening of the Greening Law Group; I will add his response if I get it. Thanks to Sam Cole for the pointer.
