Does Artificial Intelligence Belong in the Courtroom? A Texas judge doesn’t think so.

OpenAI CEO Sam Altman testifies before a hearing of the Senate Judiciary Subcommittee on Privacy, Technology and Law titled 'AI Supervision: Rules for Artificial Intelligence' on Capitol Hill in Washington, United States, 16 May 2023. REUTERS/Elizabeth Frantz

A Texas federal judge has ordered lawyers to keep AI-dependent legal briefs out of his courtroom. But a legal tech executive says AI has been lurking in litigation for years, and curbing it could prove to be a major challenge.

“We try to educate judges about these things,” said Andy Wilson, CEO of legal technology firm Logikcull. “Just knowing what I know, I think it will be a futile effort.”

The order, issued by Northern District Court Judge Brantley Starr, appears to be the first of its kind, requiring attorneys who file documents in its registry to certify the documents as free from content produced by language model artificial intelligence tools large formats (LLM) such as OpenAI ChatGPT, Harvey.AI and Google Bard or as reviewed by a human for accuracy.

“My order is an attempt to keep the pros of generative AI while managing the cons,” Judge Starr told Yahoo Finance. “But the judges are responsive and sort out what is presented to us. So we will never be as cutting edge as the innovations we eventually face.”

Starr said one of the many benefits of forensic AI is that it can search through mountains of data. The main problem he sees is the tendency for systems to hallucinate making up case citations and supporting citations. Hallucinations are scenarios in which AI-generated text appears plausible but is actually, semantically, or syntactically incorrect.

Starr explained in a post on the court’s website that there’s also no way to keep a machine compliant with the ethical requirements of legal practice, or to ensure that the creators of technologies have avoided programming their own biases, prejudices and beliefs in systems.

“As such, these systems are not loyal to any client, the rule of law, the laws and the Constitution of the United States, or the truth,” the judge wrote.

OpenAI CEO Sam Altman testifies before a hearing of the Senate Judiciary Subcommittee on Privacy, Technology and Law titled 'AI Supervision: Rules for Artificial Intelligence' on Capitol Hill in Washington, United States, 16 May 2023. REUTERS/Elizabeth Frantz

OpenAI CEO Sam Altman testifies on Capitol Hill in Washington, U.S. May 16, 2023. REUTERS/Elizabeth Frantz

Rebecca Johnson, director of public affairs for the State Bar of Texas, said the organization has not taken a position on the use of artificial intelligence in the legal profession. Other bar associations, including the American Bar Association and the New York State Bar Association, also said they have not taken official positions on the use of artificial intelligence.

The ABA, however, passed a resolution in February urging AI developers and users to maintain human oversight and control, and to take responsibility for the damage caused by their AI tools.

The bar association is also urging Congress and government officials to consider these standards when passing AI legislation and regulation.

The New York State Bar Association, for its part, is studying the impacts of AI beyond LLMs. Its communications director Susan DeSantis said the association is also looking into how the legal profession is impacted by facial recognition, digital finance and artificial intelligence of the currency.

Standing Order Issued by United States District Court Judge Brantley Starr, Northern District of Texas, Division of Dallas

Standing Order Issued by United States District Court Judge Brantley Starr, Northern District of Texas, Division of Dallas

LLMs, such as ChatGPT and others, Wilson said, have already enabled systems like Logikcull to identify nuances in communication that once required human computation. Wilson says Logikcull can sift through terabytes of electronically archived documents, databases, videos, emails and Slack messages and then report relevant data for legal questions.

However, he added, no one yet has answers to Judge Starr’s concern that machines cannot be held accountable for the ethical requirements of legal practice.

“The ethical use of artificial intelligence is something that isn’t talked about enough,” Wilson said, warning that sensitive personal data like a person’s likeness or voice is no longer safe from fabrication.

Starr’s order came days after reports highlighting a New York attorney citing false AI-generated subpoenas in court documents while defending his client.

For now, Judge Starr says he hopes his order will make lawyers aware that generative AI can create false claims and that they can avoid penalties for making false claims by checking how AIs work.

“These platforms are incredibly powerful and have many uses in the law,” Judge Starr wrote. “But the legal briefing is not one of them.”

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alessio on Twitter @alexiskweed.

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