You are listening to AI, the Law and You, a show where a lawyer, a layman, and a technologist discuss the current state of AI in court filings and the court's response to those filings. These are not scripted talking points. What you hear are real conversations between Joel MacMull (the lawyer), Shannon Lietz (the technologist), and Mark Miller (the layman). In today's episode, we discussed the confusion in the court system about the differences between AI and Generative AI. We'll start with Joel giving a brief overview of the current state of AI in the courts.

From Joel MacMull (the lawyer)

There are now in the neighborhood of a half dozen federal judges that have issued standing orders as it relates to the use of AI in court filings. There's no outright prohibition barring the use of I'll say Generative AI. One of the problems with the standing orders is that at least some of them don't distinguish between Generative AI and AI. That's an issue because there's a lot of non-generative AI tools out there that are used every day that I think are really helpful.

Putting that aside for a moment, these orders basically say that if you as a lawyer are going to be filing something, you are making a representation that to the extent that you used any AI tool, Generative AI tool, that you vetted it. That's another distinction.

Some standing orders insist that the filer vet the sources. Others just simply say that the material has been vetted. Meaning, I guess, implicitly, that you could kick that over to someone else to do it. But the bottom line is some courts have said, "If you're going to use these materials, you're going to do so with the expectation that you have vetted them or that they have been vetted." Meaning that you're not going to get hallucinations. We're not going to get some of those false citations That we've talked about a few times. The Schwartz case in the summer. Most recently the issue with Michael Cohen serving up to his lawyer, a series of really specious citations.