SOUTH FLORIDA COURTS TRY TO STAY AHEAD OF THE ‘MARVEL’ AND ‘PLAGUE’ OF AI

To an untrained eye, it might have looked as though Elilton Alves Gouveia really did his homework.

Gouveia, the defendant in a lawsuit filed by an investment company, was acting as his own lawyer when he appealed a Palm Beach Circuit Court decision enforcing a settlement. Gouveia cited case law and explained in detail how prior decisions left the Fourth District Court of Appeal with no choice but to find in his favor.

But some of the cases he cited didn’t exist, and others didn’t prove what Gouveia said they proved. Judges at the appeals court determined quickly that Gouveia had relied on an artificial intelligence chatbot, which is allowed, but didn’t verify any of the information he cited, which is a waste of everyone’s time.

Courts in South Florida are struggling to keep up with the ethical and legal issues raised by the wide availability of a technology ripe for use and abuse by lawyers looking to save time and pro se litigants looking to appear better informed and prepared than they are.

“You can almost tell as soon as you see it,” said Carol-Lisa Phillips, Broward’s chief administrative judge. “We used to get filings that were five or 10 pages, and now they’re coming in at 90 pages … The judge doesn’t have the luxury of skimming through court filings. We have to read each page.”

Hunting for a case that doesn’t exist takes a toll on judges schedules — it takes time to confirm that a cited case is an AI-generated “hallucination.” The drain on time is compounded when existing cases are cited improperly.

“Technology, specifically artificial intelligence, is a marvel of the age we live in,” Appeals Court Judge Melanie May wrote in the Gouveia decision. “It is an important and productive tool, but left unchecked for accuracy and legitimacy, it can be a plague upon the judicial system, creating more problems than it solves.”

Attempts to find contact information for Gouveia were unsuccessful.

The issues surrounding the use of AI are emerging as fast as policies can keep up. Late last month, Florida’s 11th and 17th judicial circuits, covering Miami-Dade and Broward counties, respectively, issued a joint executive order instructing lawyers that they need to affirm that they have verified their citations. Within days, the Florida Supreme Court issued its own guidelines, rendering the separate affirmation redundant.

Lawyers can face serious sanctions, including Florida Bar complaints, for citing nonexistent cases or misrepresenting prior rulings.

And judges are starting to lose patience.

“Attorneys are repeat players in litigation. Sanction them, and they will learn from it,” said Appeals Court Judge Johnathan Lott, writing a concurring opinion in the Gouveia case. “Over time, I have no doubt that courts’ consistent response will lessen the problem of improper AI use by attorneys.”

Pro se litigants, on the other hand, usually don’t have the money to pay fines that would be imposed, and they have nothing to fear from the Florida Bar because they are not members.

“There is a seemingly endless deluge of AI-generated drivel submitted by pro se litigants who have never received such warnings,” Lott said. “We need to get pro se litigants to understand, up front, that blind reliance on a Chatbot for legal assistance is not acceptable.”

The Gouveia ruling came out in March, months before the most recent state Supreme Court guideline was issued. Lott anticipated such a policy and predicted it would be helpful.

He also predicted the issue would not go away.

“Chatbots are going to get better,” he said, “and that’s going to make these problems worse.”

Rafael Olmeda can be reached at rolmeda@sunsentinel.com or 954-356-4457. Follow him on Twitter (X) @OlmedaNews.