The Law Society Gazette recently reported on a case where a pupil barrister had mistakenly cited fake cases as part of her legal submissions in a case involving a local authority’s duties towards a homeless man. She had found the cases through her internet research and did not realise that the cases which she had cited did not actually exist. They had been entirely made up by an artificial intelligence program even though they appeared to her to be genuine. The result was a wasted costs order not only against her but also against the Law Centre which had instructed her. Add to that the reputational damage against both as well as the possibility of professional sanction. That’s not to say that artificial intelligence should never be used as a research tool. Only that it is a professional responsibility to carry out the follow-up due diligence to ensure that what is cited is absolutely correct.
It’s important to recognise what exactly AI is. As far as I can see, AI, in this situation, is nothing more than an advanced search engine which not only identifies data but then goes on to mash it up and serve up something else out of its components. It’s like me going down to my local breakers yard and collecting bits and pieces to build my own car. I’m sure that if I asked AI to write my next Eurovision hit in the style of Elton John, it would present to me a rehash of Lulu’s ‘Boom Bang Bang’. Which brings me onto another controversial issue. Because if I then go on to use that content as part of my Eurovision entry, I will then be breaching copyright. But that doesn’t mean that I don’t use AI in my work, including the writing of this article.
As I was aware that this was not the first instance of fake cases being cited by AI, I asked my Gemini search engine to find me some other instances where lawyers have been caught out using fake cases generated by AI. It came up with the following cases: New York Aviation Injury Claim (Mata v Avianca 2023); Morgan v Morgan (Wyoming); UK Tax Tribunal Case (Harber v Commissioner for HM Revenue and Customs) which involved a self-represented tax payer.
Have I checked any of those cases out before including reference to them in this article? No I haven’t. But neither am I intending to cite them in any court proceedings anytime soon. So I’m afraid that you will just have to trust me.
One of the reasons given by the pupil barrister for her use of AI generated cases was that she did not have direct access to Lexus Nexus or the White Book, which contains the civil practice rules. In those circumstances my own ‘go to’ would be the British and Irish Legal Information Institute, which provides a free on-line legal resource for current case law. It also makes it incumbent for anyone acting for an opponent to also check out case law provided to them by another party, just to make sure that it actually exists.
BRUCE AND HOLLY 