The Volokh Conspiracy
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Georgia Trial Court Cites Likely AI-Hallucinated Cases (Possibly Borrowed from Party's Filing)
There have likely been hundreds of filings with AI-hallucinated citations in American courts, but this is the first time I've seen a court note that a judge had included such a citation.
From Monday's decision in Shahid v. Esaam, by Judge Jeffrey Watkins (Ga. Ct. App.), joined by Judges Anne Barnes and Trenton Brown; note that the trial court's order was apparently a proposed order prepared by a lawyer (in many state courts, it's common for judges to rely on lawyers to prepare such orders):
After the trial court entered a final judgment and decree of divorce, Nimat Shahid ("Wife") filed a petition to reopen the case and set aside the final judgment, arguing that service by publication was improper. The trial court denied the motion, using an order that relied upon non-existent case law. For the reasons discussed below, we vacate the order and remand for the trial court to hold a new hearing on Wife's petition. We also levy a frivolous motion penalty against Diana Lynch, the attorney for Appellee Sufyan Esaam ("Husband")….
Wife points out in her brief that the trial court relied on two fictitious cases in its order denying her petition, and she argues that the order is therefore, "void on its face." … In his Appellee's Brief, Husband does not respond to Wife's assertion that the trial court's order relied on bogus case law. Husband's attorney, Diana Lynch, relies on four cases in this division, two of which appear to be fictitious, possibly "hallucinations" made up by generative-artificial intelligence ("AI"), and the other two have nothing to do with the proposition stated in the Brief.
Undeterred by Wife's argument that the order (which appears to have been prepared by Husband's attorney, Diana Lynch) is "void on its face" because it relies on two non-existent cases, Husband cites to 11 additional cites in response that are either hallucinated or have nothing to do with the propositions for which they are cited. Appellee's Brief further adds insult to injury by requesting "Attorney's Fees on Appeal" and supports this "request" with one of the new hallucinated cases.
We are troubled by the citation of bogus cases in the trial court's order. As the reviewing court, we make no findings of fact as to how this impropriety occurred, observing only that the order purports to have been prepared by Husband's attorney, Diana Lynch. We further note that Lynch had cited the two fictitious cases that made it into the trial court's order in Husband's response to the petition to reopen, and she cited additional fake cases both in that Response and in the Appellee's Brief filed in this Court….
As to Lynch's request for attorney fees "for the costs incurred in responding to this appeal[,]" that section of Appellee's Brief provides:
- OCGA § 9-15-14: This statute authorizes the recovery of attorney's fees if the court finds that an action, including an appeal, lacked substantial justification or was filed to delay or harass.
- Johnson v. Johnson, 285 Ga. 408 (2009): The court awarded attorney's fees to the prevailing party in a divorce appeal, finding that the appeal was without merit and amounted to frivolous litigation.
We cannot find the cited case, Johnson v. Johnson, either by case name or citation. And, not surprisingly, we could not locate the case by its purported holding, which is a blatant misstatement of the law. More than 30 years ago, this Court held that "OCGA § 9-15-14 does not authorize the imposition of attorney fees and expenses of litigation for proceedings before an appellate court of this state." Since then, our Supreme Court has consistently and clearly reiterated this point multiple times: "attorney's fees incurred in connection with appellate proceedings are not recoverable under OCGA § 9-15-14." Moreover, it is worth pointing out that we granted Wife's application for discretionary review (Case Number A25D0396) which "established as a matter of fact and law that her appeal is not frivolous." …
Under the circumstances and given the indisputably clear state of the law, Husband's attorney, Diana Lynch, cannot reasonably have believed, as the Appellee's Brief "requests," that this Court would "award attorney fees under OCGA § 9-15-14 for the costs incurred in responding to this appeal." Further, Lynch provided no other basis for an award of "attorney's fees to the prevailing party in a divorce appeal," other than a fictitious case, which purported to be a 2009 case from the Supreme Court of Georgia.
To be clear, we make no factual finding as to who (or what) inserted the fictitious cases into the superior court's order. We are deeply troubled, however, that Lynch submitted to this Court an Appellee's Brief, completely ignoring the second of two arguments that Wife raised in her Appellant's Brief and Application for Discretionary Review (wherein Wife pointed out the two fictitious cases in the trial court's order), and provided 11 bogus case citations out of 15 total, one of which was in support of a frivolous request for attorney fees.
Therefore, we impose a $2,500 frivolous motion penalty on Lynch, which is the most the law allows, pursuant to Court of Appeals Rule 7 (e) (2). We have no information regarding why Appellee's Brief repeatedly cites to nonexistent cases and can only speculate that the Brief may have been prepared by AI….
