Judges Reflect on Generative AI Use One Year After ChatGPT’s Debut

Judges across the country have issued standing orders outlining how attorneys should use AI in filings, and courts are continuing to evaluate where the technology should fit in the practice of law. The U.S. Court of Appeals for the Fifth Circuit recently said it was considering requiring attorneys to certify the accuracy of any generative AI materials filed with the court. But not all judges endorse standing orders or certification requirements as the most effective mechanism to curb generative AI misuse.

A handful of judges issued a spate of standing orders clarifying how the technology could be used in their courtrooms after a lawyer submitted a filing with citations fabricated by ChatGPT in May 2023 in Mata v. Avianca Inc., a personal injury lawsuit against an airline. The plaintiff’s attorneys were fined US$5,000 as sanctions. The mishap highlighted generative AI’s “hallucination” problem, where the technology presents incorrect information as fact, and the particular dangers it presents for legal practitioners.

The Florida Bar issued a proposed advisory opinion on generative AI use on Nov. 13, and the California Bar approved guidelines for lawyers’ AI use on Nov. 16. Further, the New Jersey and Texas state bars as well as the American Bar Association have created task forces studying how AI will impact the legal profession.

Despite the technology’s current pitfalls, most of the judges expressed optimism about generative AI’s ability to expand access to justice and democratize the law for under-resourced litigants in the coming years.