I've Seen Fake Cites on Both Sides Now

From yesterday's decision by Magistrate Judge Elizabeth Stafford in Evans v. Robertson (E.D. Mich.) (both parties are pro se):

The Court notes that the parties' briefing contained multiple factitious citations and quotations, presumably a product of using artificial intelligence (AI) software. For example, Evans cites Aguirre v. Reese, No. 2:12-cv- 01837, 2013 WL 6577085, at *5 (D. Nev. Dec. 13, 2013). ECF No. 64, PageID.559. The citation is nonexistent, and the District of Nevada assigned that case number to Mazzorana v. Emergency Med. Phys. Grp., in which no filings were made on December 13, 2013. Next, Evans attributed the following quote to Doe v. F.B.I., 218 F.R.D. 256 (D. Colo. 2003): "Parties may not evade service by hiding behind pseudonyms while continuing to engage in legal actions using those same identities." ECF No. 64, PageID.561. That case contains no such language, nor has the Court found that language in any other case. Evans likewise misattributes quotations to two other cases. ECF No. 64, PageID.570-571 (citing United States v. Ziegler Bolt & Parts Co., 111 F.3d 878 (Fed. Cir. 1997); Sec. & Exchange Comm'n v. Knowles, 87 F.3d 413 (10th Cir. 1996)).

Robertson's filings also contain inaccurate citations. She cites Mickens v. 10th Jud. Dist. Ct., 460 F. App'x 728 (9th Cir. 2011), in support of her argument that courts may dismiss actions used to harass or intimidate rather than to vindicate legitimate claims. ECF No. 39, PageID.352. Although two cases by that title exist, Robertson's citation is inaccurate. See Mickens v. 10th Jud. Cir. Ct., 458 F. App'x 839 (11th Cir. 2012); Mickens v. 10th Jud. Cir., 181 F. App'x 865 (11th Cir. 2006). The cases were decided by the Eleventh Circuit and concern the application of the Rooker-Feldman doctrine and not dismissal of abusive litigation.

Robertson also cites McNair v. Everly, No. 18-12511, 2019 WL 2560069 (E.D. Mich. June 20, 2019), which does not exist. ECF No. 71, PageID.686. This district assigned that case number to Arnold v. Fresh Start Transitional Homes, in which no filings were made on June 20, 2019. Robertson's filings also contain other inaccuracies that the Court will not belabor here….

Pro se parties are expected to strictly follow procedural rules, and no authority suggests that those rules "should be interpreted so as to excuse mistakes by those who proceed without counsel." If an attorney had submitted a brief littered with inaccurate citations, Federal Rule of Civil Procedure 11 sanctions would have been appropriate.

The parties' pro se status offers no excuse for the factitious citations or quotations, and the Court will not tolerate this practice in future filings from either party. In each of their future filings, Evans and Robertson "must include a written representation that [they have] personally checked each legal citation and each citation is accurate and stands for its asserted proposition." Failure to do so may result in a recommendation to impose more stringent sanctions.

The song was written by Suno, in response to my short prompt that basically summarized the topic and provided the opening line; here are the resulting lyrics, with no edits on my part:

[Verse]
I've seen fake cites on both sides now
From phantom laws to ghostly vows
And still they stand
So bold
So proud
I really don't know truth at all

[Chorus]
Cites that shimmer
Cites that fade
AI dreams the rules it made
And both sides argue
Undismayed
But we don't know the law at all

[Verse 2]
They quote the case that wasn't there
With pages lost in digital air
A phantom judge
A ruling rare
I guess it's justice
Or a brawl

[Prechorus]
They cite the void
They cite the fake
A courtroom built on AI's quake

[Chorus]
Cites that shimmer
Cites that fade
AI dreams the rules it made
And both sides argue
Undismayed
But we don't know the law at all

[Bridge]
Oh
What a trial
Oh
What a scene
A war of ghosts in a world machine
Who holds the gavel
Who holds the blame
When truth and fiction play the same?

Comments

[Stupid Government Tricks]

New word to me, but google says it's real.

The Court notes that the parties' briefing contained multiple factitious citations and quotations

[Frank Drackman]

It's a real word, even has it's own medical diagnosis with an ICD10 code (F68.1) and everything.
Factitious Disorder is a mental disorder in which a person, without a malingering motive, acts as if they have an illness by deliberately producing, feigning, or exaggerating symptoms, purely to attain (for themselves or for another) a patient's role. People with Factitious Disorder may produce symptoms by contaminating urine samples, taking hallucinogens, injecting fecal material to produce abscesses, and similar behavior. The word factitious derives from the Latin word factītius, meaning "human-made"
Having drinks at a VFW I once heard a Veteran complain,
"Man, the (redacted) VA ain't givin' me (redacted) for my Factitious Disorder!!!!"
"Well yeah, because it's Factitious" (which I didn't say, I might be simple, but I'm not stupid)

Frank

[SRG2]

Commonly found in psychology and psychiatry - "factitious disorders", in preference to older and more charming terms like Munchausen Syndrome or Ganser Syndrome. It is highly likely that Trump is not suffering from either, though he does suffer from a severe case of Ganser-Macher syndrome.

[Jazzizhep]

I came to post on the same topic.

Not only have I never heard of the word, I would have gotten the meaning entirely wrong if not for the context. Believing, incorrectly, factitious means “full of fact.” Our resident Jew-al (hey, his word not mine) commented on the etymology above.

I did not go so far as to think EV would have used a factitious* word himself.

*I used a new word in a sentence. Miss Burns, or was it Mrs. (don’t think I knew the difference in 3rd grade), would be proud.

[Stupid Government Tricks]

P.S. Nice lyrics.

[Stupid Government Tricks]

Eugene, see if you can get Sasha to upload a video singing this.

[Eugene Volokh]

I think Sasha is more a singer-songwriter than a cover singer. Suno is a singer-songwriter, too (and a one-AI band on top of that).

[Jazzizhep]

Hey now, I consider Elton John a singer-songwriter. I would never think he was “covering” Bernie Taupin songs because the Bern wrote the lyrics.

[Life of Brian]

This is really starting to spiral out of control. Damien Charlotin's tracker has nearly 200 cases over the past 3 months. That's compared to about 100 cases for the prior 3 months, and fewer than 50 for the 3 months prior to that. Hopefully these 90-day doublings don't continue.

[SRG2]

One day it will just disappear. Oh wait, that was Covid. 🙂

[Jack Jordan]

Brian, this has been out of control for a long time. Lying about the law is what a lot of lawyers and judges have done far too often for far too long.

Lawyers and judges for generations have been misrepresenting controlling legal authorities (and even knowingly violating them) by asserting a falsehood followed by a citation. They often do so without quoting any actual text of the authority (to force people to waste time trying to find and interpret whatever text they merely pretended to address).

Justice Scalia (writing for SCOTUS), was a prominent critic of such misconduct by judges. “While communis error facit jus may be a sadly accurate description of reality, it is not the normative basis of" American "jurisprudence. Courts may not create their own limitations on legislation, no matter how alluring the policy arguments for doing so, and no matter how widely the blame may be spread” among any quantity or quality of courts. Brogan v. U.S., 522 U.S. 398, 400 (1998).

The point of the expression "communis error facit jus" is that MANY lawyers and judges have violated the controlling legal authority. Many lawyers and judges violating the law cannot make their violations legal. That is the precise point made explicitly and emphatically in Amendments V and Article VI:

“No person” may “be deprived” by any federal public servant “of life, liberty, or property" before affording them all “process of law” that is "due." It's process of "law" that is required, not a mere judge issuing a mere ruling or a judgment that violates the law.

And "the supreme Law of the Land" is, first, our "Constitution, and" then the federal "Laws" that were "made in Pursuance" of our Constitution (including all federal rules of procedure and evidence) "and all Treaties" and all legislators and "all executive and judicial Officers, both of the United States and of [all] States" are "bound" to "support this Constitution."

[Roger S]

This is like a judge finding a misspelled word, and ordering the parties to check spelling.

If checking the cites is so important, then the judge should get some software that checks the cites. Or ask the legislature to pass a law requiring litigants to check the cites.

[David Nieporent]

This is like a judge finding a misspelled word, and ordering the parties to check spelling.

No; it's like a judge catching litigants lying, and ordering the parties to stop lying.

If checking the cites is so important, then the judge should get some software that checks the cites.

Checking the cites is so important for the litigants. It's not the judge's job to look over the litigants' shoulders to see whether they're lying.

Or ask the legislature to pass a law requiring litigants to check the cites.

There. Already. Is.

[Roger S]

The parties did not lie. They did not know about the errors. They merely used imperfect tools.

[Jack Jordan]

Roger, there's no need for such software or such a specific law. Federal law (Rule 11 of the Federal Rules of Civil Procedure) already requires: "Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented." See https://www.law.cornell.edu/rules/frcp/rule_11

By signing, such person "certifies" two things: first, that he conducted "an inquiry" that was "reasonable under the circumstances," and second "to the best of" his "knowledge, information, and belief" (after conducting the foregoing inquiry) all the following are true:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

[Jack Jordan]

Roger, my prior comment quoting Rule 11 was not adequate in a crucial respect. The sanction is not limited to those who sign a filing. Rule 11 emphasizes that a sanction can be imposed on any attorney who is responsible for "presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it."

Regarding the significance of the requirement to conduct a "reasonable inquiry" regarding all legal authorities and all facts, SCOTUS emphasized decades ago in Bus. Guides, Inc. v. Chromatic Commc’ns Enterprises, Inc., 498 U.S. 533 (1991), "The certification requirement [in Rule 11] now mandates that all [attorneys] consider their behavior in terms of the duty they owe to the court system to conserve its resources and avoid unnecessary proceedings." Any attorney who presents a paper to the Court “certifies to the court that [he] has read the document, has conducted a reasonable inquiry into the facts and the law and is satisfied that the document is well grounded in both, and is acting without any improper motive.” Rule 11 “states unambiguously that [the attorney] must conduct a ‘reasonable inquiry’ or face sanctions.”

[Roger S]

These briefs were filed by pro se litigants who apparently believed that they did conduct reasonable inquiries into the law. They consulted an AI with more legal knowledge than any human.

You mention that they are forbidden to act with improper motive. They are not accused of that. Their motives were just to argue their case with the available tools.

You have your own opinions about what is reasonable, but those opinions are not spelled out in Rule 11. I do not think these parties should be penalized unless they clearly violated some rule.

[Jack Jordan]

Roger, I didn't mention improper motive. SCOTUS did. I think you cannot speak to the motives of either party. You know what they say happens when you assume? You make an ass out of u and me.

You "do not think should be penalized unless they clearly violated some rule." They did clearly violate Rule 11. They clearly misrepresented legal authorities, so they clearly did not conduct a "reasonable inquiry" into the law and their "legal contentions" clearly were not "warranted by existing law."

You assumed you know what both parties believed, but you qualified your assertion about their belief with the word "apparently." There's no basis for concluding any party believed what you said.

How were they penalized? The judge ordered only "In each of their future filings, Evans and Robertson 'must include a written representation that [they have] personally checked each legal citation and each citation is accurate and stands for its asserted proposition.' " How is that any kind of penalty? It merely clarified the meaning of conducting a "reasonable inquiry" into the law and ensuring that "legal contentions are warranted by existing law."

In no way does merely copying and pasting what AI (or even another person) wrote amount to a "reasonable inquiry" into the law or ensuring that "legal contentions are warranted by existing law." The very least every lawyer or unrepresented litigant should do is actually look at the content of the authorities they purport to present.

AI obviously does not have "more legal knowledge than any human" regarding every legal issue. That's why AI makes up stuff. Even experienced attorneys and judges don't have "more legal knowledge than" every other "human" regarding every legal issue. That's why every case must be judged on its own merits, and everyone is entitled to their own counsel.

[Roger S]

It is obvious that the parties were trying to advance their cases with their briefs. You think that they were just trying to waste the judge's time?

Your argument comes down to saying, in your opinion, the parties were not reasonable. Okay, that is your opinion, but they did not violate the rules.

Yes, AI has more legal knowledge than any human. It does not make stuff up out of a lack of knowledge. It may not meet expectations, but that is how it is programmed, and not a lack of knowledge.

[Jack Jordan]

Roger, I'm not expressing my opinion. It's a fact that courts exist for a particular purpose. That purpose is not for anyone to say whatever they want. Lawyers, litigants, witnesses, judges and juries must comply with the law to provide due process of law to resolve legal disputes. Here, the litigants plainly violated the law. They were required to conduct a "reasonable inquiry" to verify that they presented actual legal authorities and that they accurately presented what those authorities said. They did not do so. That's not anyone's opinion. Those are facts.

AI cannot possibly have more knowledge than any human about all legal issues. AI tries to replicate what humans wrote or might write. You might want to read more about the process of how AI decides what to write.

[Jack Jordan]

Roger, before you defend people who did what either of these litigants did, you should try doing what every decent attorney doing his job would do. Check the citations of the parties. See how much time you waste trying to verify the accuracy of their representations of the law.

[Jack Jordan]

This is far from a new phenomenon. Lawyers and judges for generations have been misrepresenting controlling legal authorities (and even knowingly violating them) by asserting a falsehood followed by a citation. They often do so without quoting any actual text of the authority (to force people to waste time trying to find and interpret whatever text they merely pretended to address).

[Roger S]

No kidding. Even US Supreme Court briefs written by big-shot lawyers often misrepresent cases in order to twist an argument to the preferred side. If they do not get Rule 11 sanctions, these earnest pro se litigants should not either.

[Jack Jordan]

Roger, what sanctions are you talking about? How was either party sanctioned? What makes you think you can speak to whether either litigant was "earnest"? You're assuming again.

How do you know "Even US Supreme Court briefs written by big-shot lawyers often misrepresent cases in order to twist an argument to the preferred side"? Have you read many such briefs?

Rule 11 governs proceedings in U.S. District Court. See Rule 1. Such rules don't govern proceedings before appeals courts or SCOTUS.

[Roger S]

Just look at this blog. Ilya Somin is always posting briefs where he cherry-picks quotes and misrepresents cases to promote his Marxist agenda. Has he been sanctioned yet? How is he any better than these pro se litigants?

[Jack Jordan]

Roger, look at Rule 11 and Rule 1. They govern litigation in U.S. district courts. Nothing anyone publishes here is governed by such rules. Every court is a limited public forum. The public is free to use courts in compliance with rules that are meant to secure due process of law. Comparing this forum to a court is making the logical mistake of false equivalency.

[Jack Jordan]