Mata v. Avianca: The Blame is not Solely with ChatGPT

Mata v. Avianca: The Blame is not Solely with ChatGPT

?By ROBERT ROTH

?As I was sitting through the hearing today in Mata v. Avianca, I came to the realization that this case is not simply about law and technology. It is not just about lawyers who did not know how to use technology properly. No, what it is actually about is failure to exercise care, manage risks, staying up-to-date with the practice of law, and doing things the way you’ve always done them.

?Three lawyers all said that they have each been practicing for more than 25 years. But none of them use Westlaw or Lexis--ever. They also don’t go to any law libraries. And let’s not talk about belonging to any of the bar associations.

?Judge Kevin Castel was having none of it. He meticulously questioned each lawyer. First came Peter LoDuca whose name was on the papers filed in the Southern District as attorney of record for plaintiff Roberto Mata in a lawsuit involving an alleged personal injury onboard an airliner.

?As we know, LoDuca’s story is that he was simply signing his name to papers drafted by another lawyer in the firm, Steven Schwartz who did research via ChatGPT which came up with six fictitious cases.

?“Did you read any of the cases?” Judge Castel demanded. “No,” LoDuca had to admit. My heart sank. This was not a good start. Because as the judge pointed out, one such case, Varghese v. China Southern Airlines was “nonexistent.” (That’s a word that kept getting repeated from the bench.)

?LoDuca apparently wrote a letter to the judge asking for a one-week postponement because he had a scheduled vacation. In fact, he was forced to admit under the judge’s questioning, he never had any vacation. What happened was that Schwartz had the vacation and wrote the letter and LoDuca signed it. LoDuca neglected to change the writing from the first to the third person. Uh oh. That’s still a false statement under oath.

?This has nothing to do with ChatGPT. It has everything to do with how you practice law. The message from the bench was clear—you are responsible for everything you file under your name so you had better be sure that you verify it first.

?And that means everything. Like to recycle old forms? Fine. Proof them every time. Or you will wind up with a jurist like Judge Castel quizzing you on why there are mixed fonts on the page (because you mixed more than one old form). Or why the date of a document and the date on the notarization are months apart. Again, not the fault of ChatGPT, just sloppy lawyering.

?As the nearly two hour proceeding moved on, Schwartz was sworn in and then the torture, I mean questioning, began.

?Among the highlights: “I’m not asking how one does legal research. I’m asking how you do legal research,” the judge snapped. And it got worse.

?THE COURT: Have you even logged onto Westlaw?

?Mr. SCHWARTZ: Only in law school.

?So why did he use ChatGPT? He thought it was a “super search engine.”

?But again, even based on that premise, the judge still would not let go. He analyzed the queries Schwartz had put to ChatGPT and complained that the attorney had not asked the program to analyze the law but only to find cases supporting his position.

?If the judge is angry, he saved it for Schwartz.?“What does ‘F Three D’ (F.3d) mean to you? he demanded. When did any of us last get asked this question after first semester Legal Research and Writing? It was painful hearing the attorney get the wrong answer and having the judge explain, “Federal Reporter, Third Series.”

?And the death knell of questions: “Did you do any other research other than ChatGPT?” “No,” was the reply.

?These are only highlights. Do read the transcript to get the full flavor.

?Lawyers for the law firm and all the lawyers argued that FRCP 11, 28 USC §1927 and the court’s inherent power do not require sanctions. Perhaps they will have convinced Judge Castel. But he has also threatened a referral to the Committee on Grievances of the Southern District as well as the Grievance Committee of the Appellate Division.?For that, there is a lot to be worried.

?If you read a case online, if someone else gave you their opinion, or if some “artificial intelligence” provided you with information, it’s all the same: all you have to do is check your work and the work of someone you vouch for. It doesn’t matter how the work was done.

?? 2023 Robert Roth. Please do not share this article or otherwise copy it.