The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Duty to Alert Court to Opponents' "Fictitious Citation[s]" and "Misrepresentation of Case Law"
From Judge Sharion Aycock (N.D. Miss.) yesterday in Billups v. Louisville Municipal School Dist.:
The Court also observes that the Defendant … could have flagged the fictious citation and misrepresentation of case law [by Plaintiff's counsel] in a reply brief or supplemental filing. The Court takes this opportunity to issue a charge. Going forward, the Court expects all parties to assist in maintaining the integrity of the judicial process and to be diligent in flagging AI misuse. "[O]therwise, the risk is too great that such errors will persist undetected, potentially leading to an outcome unsupported by law." Elizondo v. City of Laredo (S.D. Tex. 2025).
Judge Marina Garcia Marmolejo's order in Elizondo does indeed take the same view:
The Court also observes that Defendant, the City of Laredo, could have flagged these fictitious citations in a reply brief or supplemental filing. Although this oversight does not rise to the level of sanctionable conduct, the Court expects all parties to assist in maintaining the integrity of the judicial process by alerting the Court to such errors. The Court encourages greater diligence in flagging citation errors in the future— otherwise, the risk is too great that such errors will persist undetected, potentially leading to an outcome unsupported by law.
To be sure, lawyers often need no prompting to alert the court to errors by the other side. But sometimes they might feel reluctant to look like they're piling on with objections, especially when the erroneous citation is on a tangential point, or when they think they've already destroyed the other side's arguments on the merits. And sometimes they might be reluctant to spend their time and the client's money on putting together a list of errors by the other side (especially when that requires a whole new supplemental filing).
These decisions show that, despite that, alerting the court to all the citation errors you found in the other side's filings may be important to maintaining the court's confidence and goodwill. They can be useful citations if you do want to file such a list of errors but are afraid that a different judge will fault you for piling on. And they can be worth noting to your client if you want to explain why you're spending time and money on listing (and verifying and explaining) the other side's errors.
