Judges instruct lawyers about the dangers of AI in standing orders


In the rapidly evolving AI landscape, judges may be among the first to set the direction and use of AI in courtrooms. In recent months, federal judges have begun implementing controls around the use of AI in court files by issuing standing orders, and some best practices are already emerging.

Claims and results generated by AI, while important when used responsibly, must be applied in a manner consistent with client confidentiality and verified for accuracy by a human. Overreliance on generative AI, as many arbitrators have pointed out, can lead to negative outcomes.

Additionally, depending on the jurisdiction, attorneys using AI should consider whether court notice is required and plan accordingly. Finally, lawyers must be prepared for the future issuance of similar orders, rules, and codes of professional conduct related to AI.

Four such orders have been issued in the past few months. All members of the legal profession should take note, whether they appear before these judges or not, as courts continue to grapple with the transparency and accuracy surrounding the use of AI.

Northern region of Texas

Judge Brantley Starr of the US District Court for the Northern District of Texas was the first to issue a permanent order on artificial intelligence. On May 30, Star A.I standing order Requiring professional lawyers and litigants appearing before his court to provide certification indicating whether any part of their files will be drafted using generative AI tools.

The description of the Standing Order indicates the danger of “fabricating” generative AI, and the generative AI’s lack of a sense of “duty, honor, or justice” that binds practicing lawyers. Accordingly, attorneys must certify that none of the content in any of their files will be framed using generative AI, or that the accuracy of the generative AI content will be verified by a human.

“These platforms are incredibly powerful and have many uses in law: divorce form, discovery requests, suggested errors in documents, questions expected in oral arguments. But legal briefing is not one of them,” Starr cautioned.

Eastern District of Pennsylvania

On June 6 — just a week after Starr’s order — Judge Michael Bilson of the US District Court for the Eastern District of Pennsylvania issued his own ruling. to request Asking professional lawyers and litigants to disclose the use of artificial intelligence in drafting files.

However, Pyleson’s standing order does not limit the scope to just use generative Artificial intelligence tools. The breadth of Belson’s system is noteworthy, as “artificial intelligence” is an umbrella term used to describe a variety of advanced technologies capable of simulating specific aspects of human thought. Many legal practitioners have used machine learning, a technology under this umbrella, for years.

Usage scenarios for these machine learning technologies included contract analytics, desktop research tools, and electronic discovery methods such as technology-assisted auditing. Baylson’s permanent system is much broader than Starr’s and has the potential to sweep through any of the aforementioned technologies that might fall under the label of artificial intelligence.

Northern District of Illinois

Two days later, on June 8, Judge Gabriel A. Fuentes of the US District Court for the Northern District of Illinois issued a revised decision standing order for civil cases. This order — akin to Starr Minh Bayelson’s order — includes language requiring parties using generative AI to “conduct legal research or draft documents for submission to court” to disclose the specific tool and its method of use.

Fuentes reminded practitioners of the applicability of Federal Rule 11 of Civil Procedure, stressing that this court “will presume that the Rule 11 testimony is a representation by the applicants, as living, breathing, thinking human beings, and that they themselves have read and analyzed all of the citations cited by the authorities to confirm the presence of these authorities already and that the filings comply with Rule 11(b)(2).”

American Court of International Trade

On the same day as Fuentes, Judge Stephen Alexander Faden of the US International Trade Court issued a related decision to request It requires identifying which generative AI software is used and all parts of the text that have been synthesized with the help of the generative AI.

Faden also warned of “new risks” posed by the use of generative AI, noting in particular that potentially confidential information could be presented through claims made to the AI ​​program. In light of these risks, Faden’s order also requires a certification that “use of this software has not resulted in the disclosure of any confidential or business information to any unauthorized party.”

Although these four justices are – so far – the only ones to have issued standing orders limiting the use of some form of artificial intelligence in court filings, they likely won’t be the last. Regardless of the prevalence of such orders, legal practitioners should note this and use good practices when using generative AI in legal drafting.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author info

Shannon Kirk He is the principal and global director of e-discovery, detection strategies and data analytics at Ropes & Gray, serving global clients as an external e-discovery advisor on large-scale litigation and investigations, with deep experience in strategizing on litigation readiness programs, data collection protocols, data review in foreign countries, and around The most efficient, practical and cost-effective document filing, collection and revision plan for any given matter.

Amy Jane Longo He is a litigation and enforcement partner at Ropes & Gray with more than 25 years experience in securities cases, with significant experience as senior defense attorney and senior trial attorney with the Securities and Exchange Commission.

Emily Cobb He is the Electronic Discovery, Discovery Strategies and Data Analytics Consultant at Ropes & Gray and is a trusted senior advisor to corporate clients on a broad range of issues including information management, discovery dispute resolution, effective and innovative applications of document review technology, mobile discovery, and technology-assisted auditing.

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