Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, October 23, 2023

What Happens in the Third Circuit, Stays in the Third Circuit (For Now)

Earlier this year Leah Tedford posted on the Third Circuit's proposed rule change to roll back filing deadlines from 11:59 pm to 5:00 pm. After the Third Circuit adopted the rule, Robert Peck and I engaged in a spirited blog conversation about the change.  Robert was more critical of the change, and he argued for more uniformity among the circuits. I, on the other hand, argued that the court could do whatever it wanted.

Well, according to a recent Reuters story, Robert almost got his wish! Apparently the U.S. Judicial Conference Committee on Rules of Practice and Procedure has had before it, since 2019, a proposal from the now-chief judge of the Third Circuit to make the earlier filing time a nationwide rule.  According to the article, the chair of the Committee wants to wait and see how things work in the Third Circuit before adopting any sort of national rule.  According to the article, part of the Committee's concern was the opposition that the rules changed faced from the bar.

I think that the Committee's decision makes perfect sense. As I expressed in my earlier blogging on this issue, I am perfectly fine with the federal circuits having different rules. Attorneys should always check the rules well in advance of any filing. And many attorneys frequently practice before a wide variety of courts with diverse rules. Just think of attorneys who practice in both state and federal court or in both trial and appellate court. They must know very different sets of rules. 

Moving to the substance of the rule, I actually think that it is a good proposal. I agree with Robert that it will just shift when attorneys decide to burn the midnight oil, but I do think that it allows attorneys who don't want to burn that oil the chance to address key filings that come in during normal working hours. As the mom of two young kids, I try to guard my evenings to spend time with them. Now, I get that I could work on filings after my kids go to bed, but that time is often reserved for chores or a little bit of downtime.  I also get that a 5 pm filing time can be hard if you have to pick up kids from school--I chose my daughter's school specifically because it offered a longer aftercare. Still, in the world of appellate practice it is best to have documents finished well before the filing deadline.  Further, an attorney's decision to burn the midnight oil in advance of filing a brief likely means that support staff needs to be available to also burn that oil to help with any formatting or filing issues.

So, while I encourage the Committee to wait and see how it all works out in the Third Circuit, I hope that it all works out well and a national change is made.

 

October 23, 2023 | Permalink | Comments (0)

Sunday, October 22, 2023

A Majority Opinion Becomes a Dissent Disguised as a Majority Opinion

Sometimes, after an opinion is drafted, members of a court change their minds. It may be that the draft highlights something a member of the majority finds sufficiently troubling that the result should change. It may be that the draft opens the door to something a judge believes should be off the table.

One way that an outsider can tell that a judge lost the majority is when the dissent contains a fuller statement of the facts than the majority opinion. It suggests that the original majority opinion was turned into a dissent and the original dissent became the opinion of the court.

Something quite unusual in this regard took place in the Fifth Circuit earlier this month. The State of Texas filed an emergency appeal of a stay of execution for a death-row prisoner who challenged state statutes that precluded him from receiving DNA testing to establish his innocence of crimes that he was not convicted of but that qualified him for the death penalty because of presumed “future dangerousness.” The issue he raised was also pending in the Fifth Circuit in another case brought by a different inmate.

In this case, the inmate first argued that the court had no jurisdiction over the interlocutory appeal because the district court called its order a stay, rather than an injunction. The majority opinion, by Judge Leslie Southwick, quickly set that semantical issue aside, calling it “commonplace” that such jurisdiction existed and noted that the dissenting opinion “contains the same analysis, and we restate much of it here.”

Judge Jerry Smith, a member of that Court since 1987, dissented. His dissent begins with a strange and unique statement:

          The majority opinion is grave error. It succumbs to a vapid last-minute attempt to stay an execution that should have occurred decades ago.

          In the interest of time, instead of penning a long dissent pointing to the panel majority's and district court's myriad mistakes, I attach the Fifth Circuit panel opinion that should              have been issued.

What follows is an opinion that in look and feel appears to be a majority opinion written by Judge Smith and joined by all members of the panel. The opinion expresses the same pique evident in the second prefatory sentence before it about the courts’ indulgence of repeated appeals and a rejection of the merits of the prisoner’s case.

Judge James Graves specially concurred in the majority opinion. attachment of a proposed majority opinion drafted by Judge Smith. The opinion takes pains to rebut the dissent’s “proposed majority opinion,” which Judge Graves said he never joined. The detail in this concurrence suggests that it was originally a dissenting opinion, which succeeded in changing Judge Southwick’s mind, much to Judge Smith’s apparent consternation.

For an appellate advocate, the self-evident dynamics in the case makes the concurrence worth studying. It carefully parses the position of the original majority to demonstrate that it decides more than the case presents. Instead of looking to the validity of the laws that prevent use of DNA evidence to sentencing, which Judge Smith suggests is a losing proposition for the inmate, but that, procedurally, with another case under advisement raising the same issues, the district court did not abuse its discretion in staying the execution pending its disposition because there is no reasonable “basis to distinguish the present appeal.”

Perhaps if appellate counsel had limited the argument to the common-sense idea that a determinative case is pending, we might have seen a straightforward and brief opinion similarly supporting the stay without the odd display of internal friction at the court. This case is Murphy v. Nasser, No. 23-70005, 2023 WL 6814520 (5th Cir. Oct. 10, 2023).

October 22, 2023 in Appellate Advocacy, Appellate Justice, Federal Appeals Courts, Legal Writing | Permalink | Comments (0)

Saturday, October 21, 2023

A More Appellate-Style Bar Exam? In Support of the Pending Pilot for a California Portfolio Bar Exam Alternative

As appellate practitioners and teachers, we all stress deep analysis of the law, not quick determinations without research, investigation, or collaboration.  One of my favorite aspects of full time appellate practice was just that:  time.  I treasured having more time--albeit never enough time--than I had in trial practice.  I knew being able to consult with wise colleagues, read all of the relevant cases, and carefully scour the record made me a better advocate and officer of the court.  Yet our respective state bar exams too often test quick recall of memorized rules, including some rules not even in effect anymore, and performance on a few days of high-stakes testing without the collaboration of colleagues or the benefit of research.  Sure, being able to think quickly and work as an expert in an area of the law are part of competently representing clients.  In practice, however, have you ever faced a multiple choice question on trespass to chattels which you could only answer with info you memorized?  Neither have I.   

In my state of California, a committee of incredibly dedicated law professors and legal community members created a "Portfolio Bar Exam Alternative" (PBE) proposal pending now at the State Bar.  The Bar is considering whether to adopt a pilot for this PBE alternative.  You can read the proposal in a 44-page report with 82 pages of appendices showing the data behind the proposal here:  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.  In sum, the proposal discusses what the current bar exam tests well, which sadly is socioeconomic class, and shows how an alternative pathway could benefit the public by increasing diversity in the profession and ensuring true competency before licensure. 

The PBE Pilot does not recommend eliminating the traditional bar exam for bar applicants who prefer the test.  Instead, the PBE would provide an alternative pathway to licensure for applicants who take a rigorous set of law school courses, graduate in good standing, and then work in paid post-graduate positions under attorney supervision.  These applicants would spend about six months after law school earning a salary and creating a portfolio of work showing competency to represent clients.  As former Trustee of the State Bar of California Joanna Mendoza recently explained, the pending proposal is “modest,” asking for a small initial pilot program with an approach that would “assess candidates’ competence over time, as they handle real client matters under supervision,” but would also “offer candidates a choice” and “not undermine” the current California Blue Ribbon Commission’s “proposal for a better bar exam.”  Joanna Mendoza, Opinion: The bar exam benefits test preppers and isn’t indicative of qualified attorneys, L.A. Daily J. (Oct 17, 2023).  

How would this work?  Applicants would submit portfolios of “redacted client letters, contracts, and other lawyering documents, as well as evaluations of client encounters and negotiations.”  Then, “trained, independent graders would assess these portfolios, determining which candidates are competent.”  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.    

Of course, not everyone favors the PBE proposal.  Some opponents raise thoughtful and important issues of bias and discrimination.  A small pilot can help us address these concerns.  Moreover, the PBE proposal drafters modeled their proposal “on California’s highly successful Provisional Licensure Program, as well as innovative programs in other states,” which showed positive outcomes for applicants from underrepresented communities.  See  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.   As former Trustee Mendoza explains: 

The State Bar’s survey of provisional licensees showed that these California candidates experienced relatively little harassment or discrimination, that they succeeded in the program even when they reported those negative experiences, and that they rated the program very highly.  Those surveys also showed that a Portfolio Bar Exam may be particularly effective in enhancing the diversity of California’s legal profession. Women of color were significantly more likely than any other demographic group to take advantage of provisional licenses that led to full bar admission. They, along with men of color and white women, were also more likely than white men to obtain full licenses. And contrary to some concerns, candidates from disadvantaged groups did not encounter difficulty finding supervisors or securing paid positions. California’s Provisional Licensure Program operated with admirable equity despite the pandemic’s many disruptions.

Mendoza, Opinion.   

The most vocal opposition seems to be from people connected to profitable bar preparation courses.  Given that “[t]est-takers in California spend an estimated $20 million a year on commercial bar preparation courses,” this opposition is not surprising.  See id.  While the PBE Pilot would not fix the system, a PBE alternative would be a start, testing actual competence, not whether an applicant has the support system to pay for expensive test prep while taking many weeks away from paid employment.   

The State Bar is asking for public comment on the PBE Pilot.  The Bar has created an incredibly easy way to comment, and commenters do not need to be attorneys.  If you are interested in commenting, just click this link, scroll to the bottom under "Direct comments to" and click the link for "online Public Comment Form”:  https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2023-Public-Comment/Proposal-for-a-Portfolio-Bar-Examination.

If you like or dislike the proposal, you can comment by simply selecting an “agree” or “disagree” button.  The Bar has also provided a box for typed or uploaded comments.  The deadline to comment is Wednesday, October 25, 2023.  I clicked “AGREE” and completed my comment in less than two minutes.  I urge you to weigh in on this important question too.   

October 21, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Profession, Legal Writing | Permalink | Comments (1)

Saturday, October 14, 2023

Tips for New Lawyers

     Starting your legal career can be an uncertain and stressful time. Below are some tips that can help new lawyers successfully transition from law school to the legal profession.

1.    Ask for help.

     If you need help, ask.

     Of course, do not spend your day asking hundreds of questions. Try to solve the problem first and exhaust every resource available to do so. After all, if you approach a partner and say, “I just got an assignment to research defamation law in New Jersey, and I can’t find a single case,” it will not go over well. But when you have exhausted all available resources and cannot resolve the problem, don’t be afraid to ask for help. You are doing yourself – and the firm – a great disservice by trying to figure it out yourself, only to see it become a much bigger problem later.  

2.    Pay attention to the details.

     The little things matter. This includes, but is not limited to, ensuring that everything you write is grammatically correct, free of spelling errors, and cited properly. For example, if your brief is filled with spelling errors, how can a judge possibly trust that your arguments are credible? Focusing on the little things also means, among other things, that the legal authority you cite in a brief or memo is good law, that you follow the local court rules, that you don’t cite ten cases for a simple legal proposition, that you file in the right court or venue, that you cite the record accurately, that you meet deadlines, and that you show up to meetings on time.  

     If you cannot pay attention to the little things, no partner will trust you with the big things.

3.    Focus on developing your writing skills.

     Some, if not many, law school graduates struggle to write effectively and persuasively. This is due in substantial part to the fact that universities (and law schools) do not place sufficient emphasis on developing predictive and persuasive writing skills. It is also because writing persuasively, particularly in the legal context, is difficult. As such it takes time, practice, and repetition to continuously improve your writing skills. It also requires you to embrace the writing process, which entails writing, re-writing, and editing. In short, it is a grind.

     Young lawyers often fail to appreciate the process of what it takes to be an excellent writer, re-writer, and editor. Some believe that a first or second draft is the final draft. Or their standard for what constitutes an outstanding memorandum or brief is far too low. To be a great writer, you must embrace the writing process and go through the hard thinking – the grind – to produce an excellent work product. And you must be dedicated to improving your writing skills throughout your life.

     Put simply, if you don’t put in the work, you won’t receive the outcome that you want.

4.    Be humble.

     As a new lawyer (and as a person), you should demonstrate humility. If you act like an entitled, narcissistic jerk, you will not get very far. If you gossip about your colleagues and supervisors, you will go nowhere because no one will want to associate with you.

     When you are a young lawyer, your focus should be on being an asset to the firm. This means being a team player, and being someone who will sacrifice your time and energy for the firm. Indeed, and particularly if you are working in a large firm, you will likely get assignments that you do not like, or work on cases in areas of law that you despise. For example, a partner may ask you to sacrifice your weekend to review hundreds (or thousands) of documents for relevance or privilege.

     Sure, these tasks are not fun. It’s not pleasant when you plan a mini vacation with your friends or partner, only to find out that your weekend will be spent in the office. However, as stated above, your job is to be an asset to your firm and to demonstrate your value. So, deal with it by having a positive attitude and realizing that your sacrifices in the short term will have tremendous benefits in the long term.

5.    Take feedback well and respond effectively to adversity.

     As a young lawyer, you will make mistakes. You will fail. The worst thing that you can do in response to these realities is to get discouraged. Rather, your colleagues want to know that you can overcome adversity and persevere through challenges. They also want to know that you are a good listener, such that you can receive constructive criticism and use it to improve your work product.

     Experienced lawyers will understand (within reason). But they won’t understand when you make excuses, blame others, or otherwise show a lack of accountability. That shows a lack of maturity. What they will admire is that you learn from adversity and, as a result, become a better lawyer and person.

6.    Exude confidence and don’t apologize too much for mistakes.

     When you make a mistake (and you will), own it. Be honest. Be committed to improving. But don’t apologize for every little thing that goes wrong. And always exude confidence. Being confident engenders trust from your colleagues; insecurity engenders concerns about your poise, ability, and competence.

7.    Don’t focus too much on being successful – understand how to be successful.

     Great lawyers work hard. Very hard. They know that to achieve a certain outcome, you must put in long hours, learn from failure, cope with adversity, and persevere when circumstances are less than optimal.  

     Put simply, they embrace the process of what it takes to be a great lawyer. Sometimes, that means working until 3:00 a.m. on consecutive days to finish a brief or motion or sacrificing a trip to the Michigan-Ohio State game to summarize hundreds of pages of deposition testimony. Yes, this is not fun. It is essential, however, to establish your value and to show that you are a reliable employee who will go the extra mile to achieve the best result possible for the firm's client.

8.    Don’t over-promise or under-deliver.

     Often, young lawyers represent to a partner that they can complete an assigned task by a particular deadline despite knowing that doing so will be next to impossible. Alternatively, they take on too many assignments, which leads to unnecessary stress and missed deadlines. Simply put, they are afraid to say no, for fear that they will lose the confidence of a partner. That could not be further from the truth. Partners appreciate it when you do not over-promise – provided you have a legitimate reason for doing so.

     Of course, when you do take on a project, be sure not to over, not under, deliver. For example, if a partner asks you to draft a memorandum summarizing the elements of defamation, be sure to include in your memorandum the defenses against a defamation claim so that your supervisor can obtain a comprehensive understanding of defamation law.

9.    Show that you have the intangibles.

     A high LSAT score, outstanding critical thinking skills, and a law degree from Yale do not mean that you will be a great lawyer.

     Great lawyers know how to relate to and deal with people. They are not arrogant jerks. They are empathetic. They have common sense. They know how to cooperate, work with a team, and accept constructive criticism. They persevere. They consistently perform well. They are disciplined and focused. They have good instincts and judgment. They communicate effectively. They don’t allow external factors to affect their choices and decisions. And they are the types of people that you would want to have a drink with on a Friday evening.

10.    Understand that being a great lawyer first requires you to be a healthy person.

     If you want to be an outstanding lawyer, you must lead a healthy life that includes balance, a strong mindset, and effective coping skills. This means, among other things, taking care of your physical and mental health, having supportive family and friends, and pursuing interests outside of the law.  

     Simply put, you can’t allow the law to consume you and your life.

***

     Ultimately, remember that no one expects you to be perfect or to immediately perform at the highest level upon graduation. What they do care about is whether you are committed to continual improvement and consistency in performance and are willing to put in the work to become an asset to the firm and an attorney who accepts nothing less than excellence.

October 14, 2023 in Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Tuesday, October 10, 2023

The Appellate Project

“We . . . must continue individually and in voices united . . . to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will [be] and are making.” –Justice Sonia Sotomayer[i]

          The Appellate Project is an organization doing just that.  It is designed “to empower law students of color, particularly those most underrepresented, to become the next generation of lawyers and judges in our highest courts” and “thrive in the appellate field.”  It was founded in 2019 by civil rights litigator Juvaria Khan.  The organization offers programming, mentorship, and resources for law students to build the skills and connections needed to break into and succeed in the appellate field. 

        Their work is incredibly important.  Increased representation in appellate courts leads to an “enhance[d]. . . legitimacy of courts among traditionally underrepresented groups”[ii] and the public as a whole.[iii]  The value of legitimacy cannot be overstated because “[d]ecisions of our courts are to be complied with, even when we disagree with them.”[iv]

        And “diversity on the courts enriches judicial decisionmaking[;] . . . the interplay of perspectives of judges from diverse backgrounds and experiences makes for better judicial decisionmaking, especially on our appellate courts.”[v]  Studies have shown that “female and minority judges, on average, bring a different judicial perspective to the bench.”[vi]  Adding just one female judge “to an otherwise all-male panel significantly increases the probability that the male judges will support a plaintiff in sex discrimination or sexual harassment cases.”[vii]  And the inclusion of a single Black judge on a three-judge panel “increases the likelihood that a non[B]lack colleague will find that a state or locality violated the Voting Rights Act.”[viii]  In short, “the interaction of wise Latinas,[[ix]] white men and women, African Americans, Native American judges--just like the interaction of former prosecutors, defense counsel, corporate practitioners and in-house counsel--provides opportunities for a robust exchange that can inform appellate decisionmaking.”[x]

        The Appellate Project offers a mentorship program each year, pairing law students of color interested in appellate practice with two mentors in the appellate field, including attorneys, judges, professors, and law clerks.  If you are an appellate practitioner, I urge you to volunteer as a mentor.  And, if you are a student, this is a fantastic opportunity you don’t want to miss.  The deadline for this year’s mentorship program is October 13, 2023. 

 

[i] Hon. Sonia Sotomayor, A Latina Judge's Voice, 13 Berkeley La Raza L.J. 87, 93 (2002).

[ii] Jonathan P. Kastellec, Racial Diversity and Judicial Influence on Appellate Courts, 57 Am. J. Pol. Sci. 167, 168 (Jan. 2013).

[iii] Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 2d 45, 48 (2009).

[iv] Id.

[v] Id. at 49.

[vi] Kastellec, supra n. ii, at 167.

[vii] Id. at 169.

[viii] Id. at 170.

[ix] In her speech, A Latina Judge’s Voice, Justic Sotomayor controversially stated, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.”  Sotomayor, supra n. i, at 92. She was later questioned about this statement during her Supreme Court confirmation hearings in the United States Senate.  Sotomayor Explains "Wise Latina" Comment, CBS News (July 14, 2009), available at: https://www.cbsnews.com/news/sotomayor-explains-wise-latina-comment/

[x] Ifill, supra n. iii, at 52.

October 10, 2023 in Appellate Court Reform, Appellate Practice, Law School, Legal Profession | Permalink | Comments (0)

Monday, October 9, 2023

On Citing Law Reviews

With forty-five years of legal practice under my belt, I paused for a moment as I was working on a new brief to think about the enterprise that has been my career. My new brief covers an issue I had never encountered before in an area of law that was new to me. I certainly enjoyed getting to know the law in this area, hoping that my understanding is solid and not a misreading of the cases and historical background. And it is the opportunity to discover new things and apply my perspective to it that keeps me going.

As with any brief, this one is being written with an eye to its audience. In this case, that means the justices of the Supreme Court. I know that what may play well with one justice may be off-putting to another. Thinking about that, I recalled remarks that Justice Ginsburg once gave at the University of South Carolina.

 She advised that a “brief skips long quotations, but doesn't unfairly crop the occasional quotations used to highlight key points.”[1] Every judge I know agrees with that statement. However, she made another that day, which may not be universally shared. She said, a “good brief does not shy away from citing law review commentaries or other scholarly analyses that may aid the court as much as they did the brief writer to get an overview of the area.”[2] As a former law professor, she had a natural interest in scholarly work.

However, an interest in law reviews is not universally shared by judges. Chief Justice Roberts once said that “as a general matter, law reviews are not―particularly helpful for practitioners and judges.[3] Roberts later made a similar point when he challenged judges in the Fourth Circuit to pick up a law review, where they are likely to see that the first article is likely to be an esoteric article “of great interest to the academic that wrote it, but isn’t of much help to the bar.[4]

A 2012 study of the frequency with which justices cited law review articles concluded that citations had fallen off from earlier eras and that 40 percent of the articles cited were written by people who were not full-time academics.[5]

Certainly, all articles are not of equal value. Some cover the history with precision and diligence that will help where that is at issue. Others conduct a survey of the law of various states that also provides useful fodder for a brief. However, where the law review article is more philosophical or theoretical, it may have limited value. Those quick thoughts suggest that law reviews are most helpful when they provide practical information that supports the argument you are making. When the article provides that type of information, the judge need not sit on the Supreme Court to approve of its use in a brief. Keep that in mind when the issue requires more than an analysis of a law, rule, or trial record.

 

[1] Hon. Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S. C. L. Rev. 567, 568 (1999).

[2] Id.

[3] Quoted in Brent E. Newton, Law Review Scholarship in the Eyes of the Twenty-First-Century Supreme Court Justices: An Empirical Analysis, 4 Drexel L. Rev. 399, 399 (2012).

[4] Id. at 399 n.1.

[5] Id. at 416.

October 9, 2023 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

The Rise and Fall of the Roman Numeral

Happy Indigenous Peoples' Day. As President Biden said in 2021, "On Indigenous Peoples’ Day, our Nation celebrates the invaluable contributions and resilience of Indigenous peoples, recognizes their inherent sovereignty, and commits to honoring the Federal Government’s trust and treaty obligations to Tribal Nations."

While I am not quite sure it can be called an "invaluable contribution," I am thrilled to share that my essay, The Rise and Fall of the Roman Numeral, has been published in the latest issue of the Green Bag. You can find the issue (with a link to my article) here.

In the essay, I explore the use of lower-case Roman numerals (romanettes) to paginate the front matter for appellate briefs. I look both at SCOTUS practice and the recently changing practice in the states.  If you don't have time to read all 7 pages, I can give you the tl;dr--it is time to do away with romanettes and  use Arabic numbers. I feel so passionately about the subject, I might even propose a rules change to the Arizona Supreme Court in an effort to update my state's rules.

I have been thinking about this essay for years (literally), so I was thrilled to finally finish writing it. I am also grateful to the good folks at the Green Bag for agreeing to publish it. 

 

 

 

October 9, 2023 | Permalink | Comments (0)

Tuesday, October 3, 2023

Disclosing the Use of AI

Following well-publicized instances of lawyers using generative artificial intelligence to draft briefs that misrepresented the law, some courts now require lawyers (and pro se litigants) to certify whether, and if so, to what extent, they used AI in preparing briefs. These orders are not uniform and may require more disclosure than would be apparent at first blush. But before delving into what disclosures may or may not be required, let’s talk about AI.

Merriam-Webster defines AI as, “the capability of computer systems or algorithms to imitate intelligent human behavior,”[1] and as “a branch of computer science dealing with the simulation of intelligent behavior in computers.”[2] Merriam-Webster defines generative AI as “artificial intelligence that is capable of generating new content (such as images or text) in response to a submitted prompt (such as a query) by learning from a large reference database of examples.”[3] Generative AI includes things like ChatGPT.

The instances where lawyers found themselves in trouble for using AI involved the use of generative AI. And it was those instances that prompted the orders requiring lawyers to disclose the use of AI. But tools like Grammarly and Word’s “Editor” are AI—they’re just not generative AI. And there lies the problem—the orders requiring disclosure don’t always distinguish between AI and generative AI. For example, Judge Baylson of the United States District Court, Eastern District of Pennsylvania put on this order:

If any attorney for a party, or a pro se party, has used Artificial Intelligence (“AI”) in the preparation of any complaint, answer, motion, brief, or other paper filed with the Court and assigned to Judge Michael M. Baylson, they MUST, in a clear and plain factual statement, disclose that AI has been used in any way in the preparation of the filing and CERTIFY that each and every citation to the law, or the record in the paper, has been verified as accurate.[4]

On the other hand, Judge Starr of the United States District Court, Northern District of Texas, has put on order that distinguishes between the use of AI and generative AI. That order says:

All attorneys and pro se litigants appearing before the Court must, together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being. These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them. Here’s why. These platforms in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations. Another issue is reliability or bias. While attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients, generative artificial intelligence is the product of programming devised by humans who did not have to swear such an oath. As such, these systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth). Unbound by any sense of duty, honor, or justice, such programs act according to computer code rather than conviction, based on programming rather than principle. Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why. Accordingly, the Court will strike any filing from a party who fails to file a certificate on the docket attesting that they have read the Court’s judge-specific requirements and understand that they will be held responsible under Rule 11 for the contents of any filing that they sign and submit to the Court, regardless of whether generative artificial intelligence drafted any portion of that filing.[5]

Thus, a lawyer filing something in Judge Baylson’s court should disclose the use of an AI tool like Grammarly or Word’s “Editor” function in preparing the brief, whereas a lawyer filing something in Judge Starr’s court does not have to disclose the use of those tools, but instead must only disclose the use of generative AI.[6] While Judge Baylson’s order suggests that he might have only meant to require the disclosure of the use of generative AI (because he refers to checking citations), the language of the order sweeps more broadly and requires disclosing the use of any AI.

Given the increased use of AI and particularly generative AI, it’s likely that more courts will require the disclosure of the use of AI in preparing filings. It’s important that lawyers fully comply with those requirements.

 

[1] https://www.merriam-webster.com/dictionary/artificial%20intelligence

[2] Id.

[3] https://www.merriam-webster.com/dictionary/generative%20artificial%20intelligence

[4]https://www.paed.uscourts.gov/documents/standord/Standing%20Order%20Re%20Artificial%20Intelligence%206.6.pdf

[5] https://www.txnd.uscourts.gov/judge/judge-brantley-starr

[6] Disclosure: I used Word’s Editor in preparing this post.

October 3, 2023 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (2)