⚖️ Future of judging
Judges get AI guidance. Plus a $1B asset sale, new Ontario appeal rules, and awarding indemnity costs to promote access to justice.
Dylan Gibbs
December 13, 2023
It looks like there’s another case of a lawyer blindly relying on artificial intelligence without reviewing its output — this time in a high-profile case. Donald Trump’s ex-lawyer Michael Cohen applied to terminate his supervised release from prison. In written argument, his lawyer cited three cases that don’t seem to exist. Careless reliance on generative AI seems to be the most likely culprit, but the judge is giving the lawyer a chance to explain:
Mr. Schwartz shall, no later than December 19, 2023, provide copies of the three cited decisions to the Court. If he is unable to do so, Mr. Schwartz shall, by the same date, show cause in writing why he should not be sanctioned pursuant to (1) Rule 11(b)(2) & (c) of the Federal Rules of Civil Procedure, (2) 28 U.S.C. § 1927, and (3) the inherent power of the Court for citing non-existent cases to the Court. Any such submission shall take the form of a sworn declaration and shall provide, among other things, a thorough explanation of how the motion came to cite cases that do not exist and what role, if any, Mr. Cohen played in drafting or reviewing the motion before it was filed.
As it turns out, AI hallucinations are a bit of a theme today.
— Dylan Gibbs
TODAY’S DOCKET
AI rules for judges
$1B asset sale prompted by competition ruling
Parties to Ontario appeals need to certify cases are authentic
Promoting access to justice through labour arbitration cost awards
TECH
AI-assisted judging in England and Wales
Judges in England and Wales now have guidance on using artificial intelligence. It’s a progressive approach — judges don’t need to avoid AI altogether, but they should steer clear of using it for tasks like legal research and analysis. The guidance says AI can help judges with things like summarizing, preparing presentations, composing emails, and writing administrative memos.
Knowledge is power: Just like guidance directed at lawyers, a key recommendation is for judges to understand AI before diving in head first. That includes understanding AI’s penchant for giving biased, incomplete, and inaccurate answers. Judges are also told to assume disclosing information to a public AI tool is the same as publishing that information to the entire world.
Supervising litigants: The guidance doesn’t just cover judicial work product — judges need to stay vigilant given that lawyers and litigants are using AI in materials they submit to the courts. The guidance raises the risk of hallucinated case citations and deepfake evidence, telling judges to be on the lookout.
Big picture: Courts and regulators around the world are grappling with AI’s risks to come up with guidance for lawyers and judges. This education-focused approach is one of the more measured responses seen to date.
Provided these guidelines are appropriately followed, there is no reason why generative AI could not be a potentially useful secondary tool.
HEARSAY ROUNDUP
Canadiana
👑 British Columbia announced its 2023 King’s Counsel appointments.
🤐 Waste Connections bought more than $1B in assets from Secure Energy Services. The Competition Tribunal forced Secure Energy to make the sale after concluding the company’s 2021 merger with Tervita was anti-competitive. The Federal Court of Appeal upheld that decision in August.
🦾 Global law firm Reed Smith is using artificial intelligence to manage work allocation. The firm says its Smart Resourcing software increased associate utilization and sped up staffing on new files.
📑 Ontario updated its rules for appellate factums, effective January 1. The new rules require lawyers and self-represented litigants to certify that the authorities cited in their materials are authentic — presumably a response to recent AI hallucination incidents. Page limits are also increasing from 30 pages to 40 pages, but there’s now a cap on the total number of words. The idea is for parties to write the same amount but in more space, leaving room for formatting improvements like whitespace, lists, and visual aids.
LABOUR LAW
Increasing access to justice by indemnifying legal costs
Typically you can’t recover anything close to your full legal costs unless the other party does something inappropriate. But according to the Federal Court of Appeal, that’s not a firm rule in unjust dismissal cases under the Canada Labour Code.
Since non-unionized employees need to hire their own lawyer, they can end up paying more in legal fees than they stand to win in a successful claim for unjust dismissal. The Court said that result “would be the antithesis of a remedial order and defeat the purpose of the unjust dismissal provisions in the Code. That means unjustly dismissed employees — at least those with small claims and limited means — may be entitled to substantial indemnity costs even if their employer does nothing objectionable during the litigation. “Anything less may well [lead] to a denial of any real remedy.”
Big picture: The Court’s reasoning was fairly tied to the unique context of unjust dismissal in federal workplaces. But with increasing legal costs and a Canadian access to justice crisis, maybe the premise will catch on in other contexts.
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