Artificial intelligence peril for attorneys

Warning to attorneys:

Don’t trust artificial intelligence -- or a client -- to write your legal briefs.

I post an example of what can go wrong.

Magistrate Judge Mark Clarke assesses sanctions, awards attorney fees, and dismisses a plaintiff’s case with prejudice.

The subject matter of the case isn’t the point of this post, but for context, this case arises from a dispute over the family winery among the adult children of an aging mother. The winery in question is Valley View Vineyards in the Applegate Valley, a pioneer vineyard and winery in Southern Oregon. The plaintiff in the case is the older sister of the two brothers who operate the winery, Mark Wisnovsky and Mike Wisnovsky.

The lawsuit is a long and tangled mess. After a multi-year period of briefs, hearings, motions, moves for summary judgments, and continuances Magistrate Judge Mark Clarke made a decision that may resolve the cases. He determined that the lawyers for the plaintiff submitted briefs that included multiple instances of inaccurate precedents and citations that were invented or hallucinated by artificial intelligence.

Judge Clarke decided to sanction the attorneys with monetary penalties, but noted that these fines may not be sufficient to discourage attorneys from submitting inadequately-checked briefs. He told counsel for the defense that they should submit a claim for attorneys fees for the time spent responding to the plaintiff’s erroneous citations. Most consequential, Judge Clarke determined that the plaintiff herself, even though represented by attorneys, was sufficiently involved in the preparation of the briefs as an experienced pro se (i.e. do it yourself) litigant that her lawsuit should be dismissed with prejudice. “With prejudice” means that she cannot refile them.

The judge’s order made reference to evidence that the plaintiff’s strategy involved handling the cases with little or no legal cost, while the defense would need to hire expensive attorneys to respond, thereby pressuring the other side to a favorable settlement. Judge Clarke cited a voicemail message from the plaintiff’s non-party brother, Robert Wisnovsky, left on the phone of one of the two defendants. That message claimed that he and his sister are winning in court using unpaid attorneys, presumably with the real legal work done by the plaintiff.

When I meant that we don’t have an attorney, I really meant we’re not paying for an attorney. . . . [Our attorney is] representing us for nothing. So, if you want to continue on, we’re not spending a dollar compared to what you’re spending. I filed a motion today to delay this other trial of this May 2nd thing, which they’re going to grant. And you’re just going to continue hemorrhaging money. Like I told you, when I saw him at the hearing, I saw you there. I ripped fucking Dole’s heart out right there. I didn’t even go to law school. And your boy, Jim. Oh, my God. What a failure that guy is. What about Brooks? 7 hour deposition. Took him out too, so I’m fully engaged now with this. Walk away. Make money and quit losing money. So if you’re interested in that, call me.

Dole and Brooks are the names of attorneys employed by the defense that Robert asserted that they were defeating in court, while avoiding the cost of legal representation.

It appears that the plaintiff’s briefs were filed without careful review by her attorneys of record.

I normally find legal documents difficult and tedious to read. This one is different, even for a non-lawyer. Attorneys among this blog’s readers may find this a powerful warning on the financial and career risks of artificial intelligence and of signing off on material submitted by third parties. They are also warned that judges take seriously local court rules, especially when the judge repeatedly warned the plaintiff that court rules were being ignored.

Non-lawyers are reminded that AI is an extraordinary tool in multiple contexts, but it is not trustworthy. It appears to be programmed to be agreeable -- to give you what you want --rather than to be accurate. As President Ronald Reagan famously advised, one needs to “trust but verify.”

Click the link below to read a PDF of the judge’s order.

https://acrobat.adobe.com/id/urn:aaid:sc:VA6C2:1ef60353-4735-4f65-a035-0b3e6631df9c

[Note: Tomorrow another response to President Trump’s Oval Office speech, this one by Tony Farrell, a frequent and well-received guest-post expert on brands and marketing. Farrell, readers may remember, had managed the Trump Steaks account. What better preparation for understanding Trump?]