Insight: The Betrayal of Artificial Intelligence

Are Artificial Intelligence and Law compatible?

Mr. Roberto Mata was traveling on an Avianca plane from El Salvador to New York. Comfortably seated –or at least with the degree of comfort afforded by economy class seats – his left knee was rammed by the beverage cart.

The injuries must have been serious enough to justify that on February 2nd, 2022, Don Roberto filed suit against Avianca in the state courts of New York, with the assistance of attorney Steven Schwartz of the New York law firm Levidow, Levidow & Oberman.

On February 22nd, Avianca argued before the court that, given the nature of the case, it should be handled in federal courts (and not the state courts). (1)
In Argentina, something similar would happen: the competent courts for aeronautical matters are the federal courts.

The case was then handled by Kevin Castel, a federal district court judge for the Southern District of New York. (2)
Since Schwartz was not registered within the federal justice system, the court briefs were signed by attorney Peter LoDuca, also of the Levidow firm. His colleague Schwartz, however, remained in charge of the case.

On January 13th, 2023, Avianca answered the lawsuit and said that Mata’s claim was time-barred.

On the 18th, LoDuca filed a request to the judge in which Schwartz asked that, since he had to go on vacation on a long-planned trip, he be granted additional time to respond to "the extensive brief" filed by Avianca. The judge granted the requested deadline.

And here is where the matter gets interesting.

On March 1st, LoDuca responded to Avianca’s brief, rejecting its arguments regarding the statute of limitations, with abundant citations to judicial precedents, indicating the source of each citation. According to LoDuca’s brief, the action was not barred because of certain provisions of the U.S. Federal Bankruptcy Code. As required by procedural rules, above his signature is the phrase "I declare, under penalty of perjury, that the foregoing is true and correct".

On March 15th, Avianca replied. One of their paragraphs stated: "Although [Mata] ostensibly cites a large number of cases to oppose our request, we have been unable to find most of them and the few we have located do not support any of the arguments for which they are cited".

Notwithstanding the seriousness of Avianca’s complaint, LoDuca said nothing about it.

The judge decided to investigate the matter and tried to find the cases cited by LoDuca in his March 1st brief. He did not succeed.
On April 11th, he ordered LoDuca to deliver copies of these cases to the court within a week, under penalty of dismissing Mata’s suit.

LoDuca requested an extension of the deadline, arguing that he would be on vacation until April 18th. And on the 25th he filed a brief "with copies and summaries of the precedents requested. They may not be complete, but that is what is available in the online databases," he said, without identifying which ones he was referring to.
The judge then summoned the parties to a hearing on June 8th to hear the Levidow firm’s explanations.

Schwartz and LoDuca attended the hearing. According to the court records, the latter explained that, although he had signed the March 1st document, he "was not its author. It had been prepared and drafted by Schwartz and he had only revised its style to avoid grammatical or conceptual errors", but without checking the citations.
He had also not asked Schwartz about the nature and extent of his search for case law or whether he had found any precedents contradicting their arguments. He said he had relied on the belief that the work of his colleague, whom he had known for 25 years, was reliable.

He added that, as soon as he received a copy of Avianca’s letter in which Avianca argued that the action was time-barred, he passed it on to Schwartz without reading it.
Schwartz, for his part, confessed that he had no knowledge of the Montreal Convention or the Federal Bankruptcy Code: "My work has always been on state law," he said. And he explained that, after drafting the brief and giving it to LoDuca for his signature, he did not explain what it was about.

What had Schwartz done to respond to Avianca? He used ChatGPT, which, according to the judge, "invented the cited cases". (3)
Schwartz acknowledged at the hearing: "I thought ChatGPT could not invent precedents. I never thought the cases could be false. My reaction was: ’ChatGPT finds them somewhere. Maybe they are not published or the decisions were appealed or are difficult to access. I never thought they could be made up".

Schwartz said he was aware of the existence of free Internet sites where one could search for precedents cited in a judgment and read them in their entirety. One of the cases he cited in his defense against Avianca was "Varghese". He said he looked it up, but only a brief bibliographic reference appeared.

The judge: "Did you ask ChatGPT to see the full judgment?"

Schwartz: "Yes."

The judge: "And what did you find when you asked to see the full text?"

Schwartz: "I never found it"

The judge: "And you still cited it?"

Schwartz: "I was fully convinced that the site could not refer to invented cases. If I had known that, I would not have mentioned them"

The "Varghese" case appears to have been paradigmatic. The judge stated that no such case had ever been dealt with by the Federal Court of Appeals, which was supposed to have rendered that decision; the docket number cited by Schwartz was that of another case; the transcribed paragraphs "contained stylistic and logical flaws unbecoming of a federal court"; the reasoning was "far-fetched" and "bordered on nonsense", and the decision "ended abruptly with no conclusion". (4)

At the hearing, Schwartz also said that he had prepared the April 25th brief in which LoDuca gave the green light to the summaries of the quoted cases. "I drafted it, walked over to LoDuca’s office a few feet away from mine, he skim-read it, and he signed it", he explained.

LoDuca replied that, to respond to the judge’s request to attach copies of the judgments, he had simply asked his colleague Schwartz to look for them. As the latter told him that they were already attached to the brief, he signed it without reviewing it.

On June 22nd, the judge resolved the issue and decided to sanction the firm and its members. He did it where it would hurt them the most: in their prestige and their pockets.
Thus, he forced them to notify the situation to his client, Roberto Mata, with a copy of the April 25th brief and the court records of the June 8th hearing; to send to each judge "falsely accused of authoring inexistent sentences" a copy of the decision, the April 25th brief and the court records of that hearing; and to pay a fine of US$ 5.000.

The scope of the judgment is very severe: "In researching and drafting a brief to be filed in a lawsuit, good lawyers are generally assisted by law students, younger lawyers or lawyers hired for the purpose, legal encyclopedias and databases such as Westlaw and LexisNexis. The use of technological advances is commonplace and there is nothing wrong with being assisted by a tool based on artificial intelligence. [But] the existing rules impose a duty of care on lawyers to ensure the accuracy of their submissions. Attorneys Schwartz and LoDuca and the Levidow firm disregarded their obligations when they submitted to the court non-existent court decisions, false citations, and references invented by the ChatGPT tool and continued to maintain their validity even after their existence was questioned by the magistrate". The damages that can be caused by a reference to a false decision are many.

"The opposing party will spend time and money verifying the deception. The court’s attention will be diverted from other important matters. The client will be deprived of arguments based on authentic cases. The prestige of judges and courts whose names are falsely invoked as authors of non-existent judgments will be affected as well as the reputation of litigants to whom fictitious conduct is attributed. Cynicism toward the legal profession and our judicial system will be encouraged. And some future litigants may be tempted to challenge a court judgment with false doubts about its authenticity".

The judge did not only complain about the fact that the lawyers had filed a brief with false citations: "If the matter had ended at that moment, with an acknowledgment of having made a mistake once they were notified of Avianca’s brief questioning the existence of those cases or after the court order demanding they submit copies of the respective judgments, the matter would have been different. Instead, they doubled the bet and did not begin to tell the truth until this court asked them for explanations".

"The court considers that there was bad faith on the part of the professionals involved since they knowingly submitted false and misleading statements to avoid being sanctioned. Therefore, they will be fined individually. The procedural rules mandate that, except in exceptional circumstances, law firms be sanctioned for the misconduct of their members and employees. Since such circumstances do not exist, sanctions will also be imposed on the Levidow firm".

The judge understood that the sanctions applied "are sufficient to prevent the conduct from being repeated or to stop others in similar circumstances from doing the same". Others think that, on the contrary, the sanctions were too lenient.

The sentence also provided a glimpse into certain circumstances of professional life that (if only out of embarrassment) rarely come to light.

Thus, the judge called LoDuca a liar for having asked for an extension of time to respond to the court’s request of April 11th, arguing that he was on vacation.

"LoDuca’s excuse was false and he knew it at the time of filing the brief," since at the hearing he admitted to having been in his office at that time, "but he needed to hide the fact that it was Schwartz, the true author of the brief with the false quotes, who was not there, and that he (LoDuca) was unable to certify the veracity of what was expressed in the file".

There are many lessons to be learned from Judge Castel’s decision. The one referring to the importance of the briefs that the defendants submit to the courts is not the only one. There are many more. Perhaps others are equally or even more relevant, such as the need to be aware of what we know and what we do not know.

And yet another: that lies generally have short legs. And that artificial intelligence has a virtue: that, for the time being, it does not know everything.

(1)This is established in the Montreal Convention (in formal terms, the "Convention for the Unification of Certain Rules for International Carriage by Air" approved in Montreal in May 1999 and ratified by Argentina by law (26.451) and in force since February 14th, 2010. (2) In re "Mata v. Avianca," Case 1:22-cv-01461-PKC, United States District Court, Southern District of New York. Courtesy Andrew Lustigman, of Olshan, Frome & Wolosky LLP, New York. (3) In re "Mata", "Opinion and Order on Sanctions", 22 June 2023, p. 6, para. 11. (4) Id., p. 11, point 27.

This article has been written by Juan Javier Negri



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