United States v. Cohen, No. 18-602-JMF (S.D.N.Y.) Order to show cause concerning fictive case citations entered December 12, 2023.
Recent headlines directed attention to proceedings involving former President Trump’s former counsel Michael Cohen. Through counsel, Cohen, seeks to end further restrictions concerning his conviction.
In so doing, however, the judge hearing Cohen’s plea discovered that the cases cited in his submission to the court do not exist at all. Quite understandably, this vexed the court in no small way, resulting in a directive to counsel to explain what caused these errors or face sanctions.
Cohen’s Counsel, through Cohen’s Counsel’s counsel, Cohen’s former counsel, Cohen, and a software entity each submitted their views of what happened. This highly granular correspondence with the court provided some insight into events as they unfolded, mixing bonhomie and backstabbing in equal measure.
To make short work of this unfortunate series of events. Cohen’s counsel shared a draft memorandum for the court with Cohen, who in turn shared the draft with Cohen’s former counsel, who made suggestions which were thereafter adopted, and Cohen in turn provided Cohen’s then-current counsel with citations that Cohen believed would ably substantiate his case, which Cohen’s counsel adopted in the memorandum submitted to the court.
This would seem to illustrate productive effort among counsels and client except that on discovery that the citations were false, everything fell apart.
Cohen disclosed that he used an artificial intelligence source to obtain the citations, which were wildly incorrect.
Cohen’s counsel admitted that he did not check what Cohen had provided and has humbly apologized to the court. Cohen’s former counsel has objected to Cohen’s counsel’s framing of ethical reasons for departing from attorney-client confidentiality but otherwise has suggested that the court might tread lightly with respect to its treatment of Cohen’s counsel.
An entity specializing in artificial intelligence offered its views to the court, noting that court’s everywhere are grappling with the newly ubiquitously available artificial intelligence technology, suggesting that AI is continuously improving by leaps and bounds, even as courts across the country have issued standing or case-specific orders concerning the use of AI in legal research or in other aspects of submissions to courts.
The software provider’s views, painting a rosy picture of the future, would be wonderful were the future only right at the doorstep.
Yet the real issue is that, courts being courts of convention in the administration of law, expect all who come before the court to rely on routinized, standardized, and reliable resources for legal research. There are two major providers of such research and several less prominent, but useful, resources.
Artificial intelligence research resources fall into neither category.
Yet AI is here and there exists a significant issue with respect to its use apart from its accuracy, which all can now perceive leaves something to be desired in its current iteration.
Commercial legal research software is not inexpensive. An ordinary person would likely find its costs beyond reach, making preparing submission for a court difficult. The capacity to conduct research free of charge through AI resources might go far to enhance litigants’ ability to seek redress in the courts.
It might be hoped that further developments will refine the resources which in turn might further open access to the courts.
This is not the case as yet.
Until then — and even after then — counsel everywhere would not be unwise in seeking out legal and ethical literacy with respect to the use of artificial intelligence.
At this writing the court in Cohen’s case has not issued its ruling. Below are copies of materials submitted to the court respecting the unfortunate case citations.
Submissions to Court in U.S. v. Courts Respecting False Citations
Order to Show Cause entered December 12, 2023
Order re. Sealing entered December 18, 2023
Perry Law, Letter to Court, December 28, 2023
Perry Law, Letter to Court, December 28, 2023
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