GAVEL GAMUT

By Jim Redwine

www.jamesmredwine.com

(Week of 21 July 2025)

ARTIFICIAL PRECEDENT

Judges, juries, lawyers and media beware! That information you think is factual may be a hallucination. No, not ghosts, but false citations to previous court decisions or “evidence” generated by the use of internet technology such as Artificial Intelligence and posted online via X, Chatbot/Chatbox, Facebook, Instagram or one of numerous other methods for people to share thoughts and information, almost always unvetted and often anonymously. Artificial Intelligence is an enormously powerful way to sift through vast amounts of related data without delving into the basis for the data then to produce technological, but not verified, conclusions

Until AI began to be used for writing term papers or even Ph.D. theses just a few years ago, people had to do tedious, extensive, time-consuming research and investigations to prepare news reports or file legal briefs with a court. Ethical reporters had to develop actual sources and lawyers had to cite truly existing cases to support their positions, cases they had personally read. But we are mere humans and such things as time constraints, lack of resources, bias and prejudice, some not even realized, laziness and a prevalent tendency in almost everybody to believe the worst in almost everyone else, leads us to publish before we verify and believe before we validate.

Such human frailty has long led to unjust treatment of others. And, of course, most of us have had the unfortunate experience of being falsely maligned ourselves. Yet, we still often succumb to the salacious and demeaning aspersions cast upon others, especially in the highly charged atmosphere of court cases. That is why jurors must not heed out-of-court information and lawyers must not cite cases they have not read. Ah, were it all that easy.

Just a few weeks ago a federal judge in Colorado discovered two attorneys had filed a court document, “…[F]illed with a host of mistakes and citations” including fake cases made up by AI. Non-lawyer readers of Gavel Gamut might ask, “So what?” Well, Gentle Reader, it matters because our judicial system operates on precedent. A judge in a current case often decides based upon how similar cases have been decided. The wisdom of the past is often dispositive in the present. Public confidence in our legal system and the fairness of courts is heavily influenced by consistency and predictability. What happened in previous, similar cases should be expected in the current case unless there are extenuating, explicable circumstances.

So, if judges are led by false precedents, the basis of all legal reasoning, analogy, is subverted and the public will not support one of the three branches of our democracy. It may be subtle, it may take numerous judicial errors brought on by legal hallucinations, but, eventually our faith in our legal system will suffer.

If the referenced recent case of inappropriate use of AI was an anomaly, we might not get exorcised about it. However, in the last three years there have been several high profile cases where attorneys have turned to AI without vetting their research results. Use of AI is neither illegal or immoral when used by anyone. But the use of AI can be both if careful verification and objective analysis is not applied.

In conclusion, it might be worthwhile to make another analogy, say to a case in which instead of a party in court we think of ourselves as patients on the operating table. Do we want our surgeons to use unvetted AI?

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