Sui Generis--a New York law blog

The GenAI Courtroom Conundrum

Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

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The GenAI Courtroom Conundrum

In the wake of ChatGPT-4's release a year ago, there has been a notable uptick in the use of generative artificial intelligence (AI) tools by lawyers when drafting court filings. However, with this embrace of cutting-edge technology there has been an increase in well-publicized incidents involving fabricated case citations.

Here is but a sampling of incidents from earlier this year:

• A Massachusetts lawyer faced sanctions for submitting multiple memoranda riddled with false case citations (2/12/24).
• A British Columbia attorney was reprimanded and ordered to pay opposing counsel's costs after relying on AI-generated "hallucinations" (2/20/24).
• A Florida lawyer was suspended by the U.S. District Court for the Middle District of Florida for filing submissions based on fictitious precedents (3/8/24).
• A pro se litigant's case was dismissed after the court called them out for submitting false citations for the second time (3/21/24).
• The 9th Circuit summarily dismissed a case without addressing the merits due to the attorney's reliance on fabricated cases (3/22/24).

Judges have been understandably unhappy with this trend, and courts across the nation have issued a patchwork of orders, guidelines, and rules regulating the use of generative AI in their courtrooms. According to data collected by RAILS (Responsible AI in Legal Services) in March, there were 58 different directives on record at that time.

This haphazard manner of addressing AI usage in courts is problematic. First, it fails to provide the much-needed consistency and clarity. Second, it evinces a lack of understanding about the extent to which AI has been embedded within many technology products used by legal professionals for many years now — in ways that are not always entirely transparent to the end user.

Fortunately, as this technology has become more commonplace and is better understood, some of our judicial counterparts have recently begun to revise their perspective, offering newfound approaches to AI-supported litigation filings. They have wisely decided that rather than over-regulating the technology, our profession would be better served if there was reinforcement of existing rules that require due diligence and careful review of all court submissions, regardless of the tools employed.

For example, earlier this month, the Fifth Circuit U.S. Court of Appeals in New Orleans reversed course and chose not to adopt a proposed rule that would have required lawyers to certify that if an AI tool was used to assist in drafting a filing, all citations and legal analysis had been reviewed for accuracy. Lawyers who violated this rule could have faced sanctions and the risk that their filings would be stricken from the record. In lieu of adopting the rule, the Court advised lawyers to ensure “that their filings with the court, including briefs…(are) carefully checked for truthfulness and accuracy as the rules already require.”

In another case, a judge for the Eleventh Circuit U.S. Court of Appeals used ChatGPT and other generative AI tools to assist in writing his concurrence in Snell v. United Specialty Insurance Company, No. 22-12581. In his concurrence he explained that he used the tools to aid in his understanding of what the term “landscaping” meant within the context of the case. The court was tasked with determining whether the installation of an in-ground trampoline constituted “landscaping” as defined by the insurance policy applicable to a negligence claim. Ultimately he found that the AI chatbots did, indeed, provide the necessary insight, and referenced this fact and in the opinion.

In other words, the time they are a’changin’. The rise of generative AI in legal practice has brought with it significant challenges, but reassuringly, the legal community is adapting.  The focus is beginning to shift from restrictive regulations towards reinforcing existing ethical standards, including technology competence and due diligence. Recent developments suggest a balanced approach is emerging—acknowledging AI's potential while emphasizing lawyers' responsibility for accuracy. This path forward strikes the right balance between technological progress and professional integrity, and my hope is that more of our esteemed  jurists choose this path.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Head of SME and External Education at MyCase legal practice management software and LawPaypayment processing, AffiniPay companies. She is the nationally-recognized author of "Cloud Computing for Lawyers" (2012) and co-authors "Social Media for Lawyers: The Next Frontier" (2010), both published by the American Bar Association. She also co-authors "Criminal Law in New York," a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at [email protected].

 

 

 

Crawford Violation or Excited Utterance?

In People v Nieves-Andino, 2007 NY Slip Op 05584, the victim of a shooting who later died, Jose Millares, was discovered lying in the road by a police officer responding to a 911 call regarding a shooting. The responding officer summoned an ambulance and then asked Millares for his name and other pedigree information.  He then asked him what had happened.  Millares responded that he'd argued with a man named Bori who had shot him three times.  He also provided Bori's address. 

The defendant alleged that admitting the victim's statement at trial would violate his 6th Amendment right to confront the witnesses against him as set forth in Crawford v. Washington, while the prosecution argued that the statement constituted an exception to the hearsay rule as an excited utterance and its admission would not violate the 6th Amendment.

The Court first explained the underlying case precedent prior to reaching the issues raised in this case:

Our decision is guided by Crawford v Washington (541 US 36 [2004]) and Davis v Washington (126 S Ct 2266 [2006]). In those cases, the Supreme Court held that the Federal Confrontation Clause prohibits the "admission of testimonial statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination" (Davis, 126 S Ct at 2273). Only statements that are testimonial make the absent declarant a "witness" within the meaning of the Confrontation Clause (see id.). In Davis, the Supreme Court explained that statements made in response to police inquiries are not testimonial when the circumstances "objectively indicat[e] that the [*3]primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency" (id.).

The Court concluded that the victim's statements did not violate the defendant's right to confront witnesses against him since the officer's primary purpose in questioning Millares was to address an ongoing emergency:

Even when the assailant has fled, the circumstances of the police officer's questioning of the victim may objectively indicate that the officer reasonably assumed an ongoing emergency and acted with the primary purpose of preventing further harm...

Officer Doyle arrived at the scene of a recent shooting and, as soon as he had summoned medical help, asked the victim what had happened. Given the speed and sequence of events, the officer could not have been certain that the assailant posed no further danger to Millares or to the onlookers. His brief solicitation of pedigree information and information about the attacker's identity was part of Officer Doyle's reasonable efforts to assess what had happened to cause Millares's injuries and whether there was any continuing danger to the others in the vicinity. In other words, the primary purpose of his inquiry was to find out the nature of the attack, "so that he could decide what, if any, action was necessary to prevent further harm" (Bradley, 8 NY3d at 127)...(and its) admission did not implicate defendant's right to confrontation...

When...a police officer justifiably believes that the assailant no longer poses a threat to the victim, the purpose of his or her interrogation of the victim may "evolve" from dealing with an ongoing emergency to establishing past events with a view to later criminal prosecution (id.). On this record, however, the initial purpose of Officer Doyle's inquiry did not change.

I think the Court was correct in its decision.  It makes no sense to allow defendants to benefit from the death of their victim.  In other words, if the victim lives, the statement is admissible since the victim is available to be cross-examined, but if the defendant succeeds in the attempt to kill the victim, then the statement identifying the defendant is out since the dead victim (obviously) can't testify. 

That is, unless Ouija boards are allowed in the courtroom.  Now, there's an interesting idea.

As I read this case, it occurred to me that the dying declaration exception would likely have been the strongest argument for admission of Millard's statement. I can only assume that the exception wasn't applicable since the victim died at a later point in time.  The decision doesn't indicate when he died, however, and simply states that he died.  I suppose the time of his death will have to remain a mystery for now, since I don't have time to track down the record on appeal.

Is a Dentist's Testimony Regarding Routine Administration of an Anesthetic Admissible as Habit Evidence in a Malpractice Trial?

I've always enjoyed evidentiary issues and for that reason was excited to read a recent opinion by the New York Court of Appeals regarding the admission of habit evidence in a dental malpractice action.

In Rivera v Anilesh, 2007 NY Slip Op 05134, the plaintiff sued a number of people, including her dentist, alleging that a severe infection in her jaw originated with malpractice committed by her dentist while injecting a second round of anesthesia during the course of removing the plaintiff's tooth.

The defendant dentist moved for summary judgment, alleging that she had no recollection of the specific procedure at issue.  As such, she relied upon her customary practice to establish that the treatment rendered to the plaintiff on the date of the alleged malpractice did not differ from her ordinary methods.

(She) state(d) that the administration of this type of injection was a "routine procedure[]" that she did "every day" to "at least three to four to five" patients and that she had been practicing as a dentist since 1982. Dr. Anilesh further explained that a second injection of anesthesia was required in 15% to 20% of her cases. She provided a step-by-step description of the procedure she used to give injections to her patients and claimed that, when a second injection was necessary, she administered it at the same site as the first injection. Dr. Anilesh noted that if a patient complained of unusual pain or any other unexpected events occurred during treatment, she would make a notation in the patient's medical chart but that no such note existed for Rivera. Dr. Anilesh's expert opined that Dr. Anilesh's treatment of Rivera was within the applicable standard of care in dentistry.

The Court explained the basis for the admission of habit evidence in New York:

"(E)vidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions" because "one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again." The applicability of this doctrine is limited to cases where the proof demonstrates "a deliberate and repetitive practice" by a person "in complete control of the circumstances" (id. at 392) as opposed to "conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances" (id. at 389). If these conditions are satisfied, "a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence . . . on a particular occasion"...

The Court then noted that the issue of habit evidence had been considered by it on only a few occasions, and never in a medical or dental malpractice context.  The Court then concluded that the evidence was properly admitted in this case:

(T)he record here supports the admissibility of Dr. Anilesh's routine procedure for administering injections of anesthesia under the standard articulated in Halloran in light of the frequency that this technique was used in Dr. Anilesh's dental practice and the nature of the routine conduct...there is no evidence suggesting that Dr. Anilesh's pre-extraction injection procedure would vary from patient to patient depending on the particular medical circumstances or physical condition of the patient. This record therefore contains "proof of a deliberate and repetitive practice" — the mundane administration of a local anesthetic prior to a relatively routine tooth extraction — by a trained, experienced professional "in complete control of the circumstances"...

While I agree with the Court's decision to an extent, I am uncomfortable with the application of habit evidence under the facts of this case.  It seems to me that this holding essentially encourages health care providers who frequently perform routine procedures to avoid documenting anything that occurs during a procedure that is somewhat out of the ordinary.  That way, when called upon to testify regarding a frequently performed procedure, s/he can allege an inability to recall the specific procedure and then assert that the procedure in question must have been typical since the medical record indicates that nothing unusual occurred. 

In a way, this decision seems to sanction convenient cases of amnesia when the underlying "forgotten" facts are the very heart of the malpractice claim.  But, then again, I suppose it's ultimately within the province of the fact-finder to determine whether the alleged case of amnesia is actually believable. 

4th Dept.--Two Cases of Interest

The Fourth Department recently handed down a number of decisions.  I'll be highlighting a few of the cases over the next few days.  For today, two decisions of interest, one addressing an evidentiary issue and the other a venue issue:

• Foley v West-herr Ford, Inc., 2006 NY Slip Op 06723--The Fourth Department held that the lower court properly concluded that information collected by the defendants' experts was not discoverable:
  • Supreme Court did not abuse its discretion in denying plaintiffs' motion to compel disclosure of, inter alia, the factual findings, calculations, measurements and diagrams collected by defendants' experts from the accident scene (see generally Nyhlen v Millard Fillmore Hosps., 275 AD2d 943). The information sought is immune from disclosure because it constitutes material prepared in anticipation of litigation, and plaintiffs failed to demonstrate a substantial need for such information and that they were unable to obtain its substantial equivalent without undue hardship (see CPLR 3101 [d] [2]).
• Eber-ndc, LLC v Star Indus., Inc., 2006 NY Slip Op 06940--The Fourth Department held that the trial court erred when it consolidated actions pending in two counties and changed the venue to its county:
  • Pursuant to CPLR 511 (c) and 2201, once Star moved in the Nassau Court to change venue in the Monroe action, that court had the authority to stay the proceedings in the Monroe action. Despite the Nassau Court's order staying all proceedings in that action, which was then pending in Monroe County, the Monroe Court nevertheless granted Eber's motion to consolidate and, "incidently," changed the venue of the Nassau County action to Monroe County. We conclude that the Monroe Court erred in failing to give effect to the stay ordered by the Nassau Court. Even if the stay were improperly granted, the proper procedure would have been for Eber to move to vacate the stay. (Internal citations omitted.)

A Retained Expert Might Have Been a Good Investment

The Fourth Department recently considered whether certain evidence was admissible to establish proof of causation in a lawsuit arising from an automobile accident. 

In Silverman v. Sciartelli, 2006 N.Y. Slip Op. 00752, the plaintiff sought to introduce 1) the testimony of the State Trooper who investigated the accident regarding the cause of the accident  and 2) the police accident report, which contained conclusions regarding the cause of the accident.

As to the Trooper's testimony regarding causation, the Court concluded:

Inasmuch as the Trooper could not give any evidentiary basis for his conclusion, such as location of the vehicles after the accident, the location and direction of skid marks, or the location of divots in the road, we conclude that plaintiff failed to establish a foundation for the Trooper to testify with respect to his opinion concerning the cause of the accident.

The Court also held that the lower court properly refused to allow the admission of the accident report:

We likewise conclude that the court properly refused to admit the police accident report in evidence. Even though that document qualifies as a business record under CPLR 4518, it contained conclusions regarding the cause of the accident while lacking the requisite evidence that such conclusions were based on "postincident expert analysis of observable physical evidence."

I wasn't particularly surprised by the Court's conclusions regarding the inadmissibility of the evidence in question based upon the facts of this case.

I was, however, somewhat surprised that, for an element as important as causation, the plaintiff hadn't retained its own expert.  Although, it's entirely possible that the Trooper was interviewed ahead of time and appeared to have an independent recollection of the accident, but then changed his tune on the stand.

You never really know what a witness will say on the stand.  They surprise you the darndest things sometimes, don't they?

To bolster or not to bolster?

If you practice in the Fourth Department, it would appear that it's probably not the best tactic.  On November 10, 2005, in Carr v. Burnwell Gas of Newark, Inc. , the Court concluded that the admission of a written statement of  the defendant over the objection of the plaintiffs' counsel constituted bolstering and was not harmless error, thus warranting reversal of the judgment.

Defense counsel sought to introduce a written statement of the defendant that had been affirmed under penalty of perjury.  In that statement, the defendant asserted that the plaintiff veered into his lane, which comported with his testimony at trial.  The plaintiffs' counsel objected on the basis of improper bolstering.  The defense also elicited testimony regarding two oral statements made by the defendant.  Neither was preserved for review because plaintiff's counsel made only a general objection to the first statement, and failed to object to the second statement.

The Court considered the admissability of only the written statement, and concluded that it did not constitute a recent fabrication simply because the plaintiffs' challenged the reliability of the defendant's recollection of the accident.  The Court clarified that recent fabrication "means...that the (plaintiffs are) charging the witness not with mistake or confusion, but with making up a false story well after the event."

The Court also held that the statement did not constitute an admissible business record, given that the defendant was under no business obligation to report the incident to the police and, further, that the statement did not constitute a party admission, as it was consistent with the defendant's trial testimony.

Accordingly, since no exceptions applied which would allow the statement to be admitted, the admission of the statement consituted improper bolstering.  The Court concluded that the error may have very likely prejudiced the plaintiffs' case, thus requiring reversal of the judgment and a new trial.