The Volokh Conspiracy
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$7500 Sanctions for Nonexistent Citations in Brief; Magistrate Judge Stresses Cite-Checking Isn't a New Obligation
"Whether a case cite is obtained from a law review article, a hornbook, or through independent legal research, the duty to ensure that any case cited to a court is "good law" is nearly as old as the practice of law."
From the Report and Recommendation in Davis v. Marion County Superior Court Juvenile Detention Center, filed Tuesday by Magistrate Judge Mark Dinsmore (S.D. Ind.):
In [a] brief, Mr. Sture included two citations that he concedes do not exist….Mr. Sture acknowledged that he was responsible for the errors in the brief that he signed and filed. However, he took the position that the main reason for the errors in his brief was the short deadline (three days) he was given to file it. He explained that, due to the short timeframe and his busy schedule, he asked his paralegal (who once was, but is not currently, a licensed attorney) to draft the brief, and Mr. Sture did not have time to carefully review the paralegal's draft before filing it.
[The Magistrate Judge briefly explained the reason for the unusually short deadline, and noted that, "while Mr. Sture did only have three days to file his response after the motion to compel was filed, he had much more time than that to consider and research the issues that were ultimately addressed in the response brief"; for more on that, read the full opinion. -EV]
Further, while Mr. Sture made much at the hearing about the fact that he filed his response brief literally at the eleventh hour (the brief was, in fact, filed at 11:00 p.m. on the due date), he further represented that he subscribes to LEXIS. It would have taken only a few minutes to check the validity of the citations in the brief using LEXIS before filing it.
Mr. Sture failed to take even that most basic of actions, and therefore did not catch the fact that the brief contained citations that did not exist. The most logical explanation for the citation to non-existent authority is, of course, the use of generative AI to conduct legal research and/or draft the brief. The issue of "hallucinated case[s] created by generative artificial intelligence (AI) tools such as ChatGPT and Google Bard" has been "widely discussed by courts grappling with fictitious legal citations and reported by national news outlets."
The paralegal who drafted the brief did not appear at the hearing. Mr. Sture represented at the hearing that the paralegal did not use generative AI to aid in the drafting of the brief; rather, she told Mr. Sture that she used a legal research product called Fastcase. However, neither Mr. Sture nor the paralegal provided any alternative explanation for the erroneous citations. Further, whether generative AI was or was not used to draft the brief is not particularly relevant to the analysis. There is nothing fundamentally improper in the use of AI tools to draft a brief. Rather, it is counsel's abdication of his responsibility to ensure that the information he provided to the Court was accurate that is the basis for the sanctions recommended….
Courts have consistently held for decades that failing to check the treatment and soundness—let alone the existence—of a cited case warrants sanctions. See, e.g., Salahuddin v. Coughlin, 999 F. Supp. 526, 529 (S.D.N.Y. 1998) (noting that Shepardizing would have led defense counsel to a key case); Brown v. Lincoln Towing Serv., No. 88C0831, 1988 WL 93950 (N.D. Ill. 1988) (imposing sanctions where the attorney filed a claim based on an expired federal statute); Pravic v. U.S. Indus.-Clearing, 109 F.R.D. 620, 623 (E.D. Mich. 1986) (holding that the act of relying on another attorney's memorandum without Shepardizing the cases cited warranted sanctions); Blake v. Nat'l Cas. Co., 607 F. Supp. 189, 191 (C.D. Ca. 1984) (noting that Shepardizing cases already cited would have led to controlling authority).
The advent of modern legal research tools implementing features such as Westlaw's KeyCite and Lexis's Shephardization has enabled attorneys to easily fulfill this basic duty, and there is simply no reason for an attorney to fail to do so. Such has been the view for decades: "It is really inexcusable for any lawyer to fail, as a matter of routine, to Shepardize all cited cases (a process that has been made much simpler today than it was in the past, given the facility for doing so under Westlaw or LEXIS)." Gosnell v. Rentokil, Inc., 175 F.R.D. 508, 510 n.1 (N.D. Ill. 1997). Confirming that a case is good law is a basic, routine matter and something that is expected from a practicing attorney. As noted in the case of an expert witness, an individual's "citation to fake, AI-generated sources … shatters his credibility." See Kohls v. Ellison, 2025 WL 66514, at (D. Minn. Jan. 10, 2025). The same is true even if the fake citations were generated without the knowing use of AI.
Mr. Sture admits that he did not make the requisite reasonable inquiry into the law before filing his brief. Whether or not AI was the genesis of the non-existent citations, Mr. Sture's failure to review them before submitting them to the court was a violation of Rule 11. See Hayes, 763 F. Supp. 3d at 1066-67 ("The Court need not make any finding as to whether Mr. Francisco actually used generative AI to draft any portion of his motion and reply, including the fictitious case and quotation…. Citing nonexistent case law or misrepresenting the holdings of a case is making a false statement to a court. It does not matter if generative AI told you so.") (citations and quotations marks omitted).
The fact that Mr. Sture did not file the brief with the intention of deceiving the court does not excuse his failure to check the citations therein. Whether a case cite is obtained from a law review article, a hornbook, or through independent legal research, the duty to ensure that any case cited to a court is "good law" is nearly as old as the practice of law. As previously noted, the development of resources such as the Shephard's citation system provided lawyers a tool to accomplish that most basic of tasks. {Frank Shepard introduced his print citation index in the 1870s, though other precursor citation series had existed since the early nineteenth century. See Laura C. Dabney, Citators: Past, Present, and Future, 27 Legal Reference Servs. Q. 165, 166 (2008).} It is Mr. Sture's failure to comply with that most basic of requirements that makes his conduct sanctionable.
The Undersigned finds that Mr. Sture violated Rule 11 and that sanctions for that violation are appropriate…. Monetary sanctions ranging from $2,000 to $6,000 have been imposed in similar contexts in the past few years. Given the distressing number of cases calling out similar conduct since the opinions cited above were issued, it is clear that the imposition of modest sanctions has failed to act as a deterrent. {The Undersigned's very quick, certainly non-exhaustive search revealed at least eleven cases noting fictitious citations (to either non-existent cases or non-existent quotations) in federal court filings in the month of August 2025 alone. While most of these cases involved filings by pro se litigants, three of them … involved filings by attorneys.} Accordingly, the Undersigned RECOMMENDS that Mr. Sture be sanctioned $7,500.00 for his Rule 11 violations in this case….
The Magistrate Judge also referred "the matter of Mr. Sture's misconduct in this case to the Chief Judge pursuant to Local Rule of Disciplinary Enforcement 2(a) for consideration of any further discipline that may be appropriate."
