Silly Lawyer Tricks XXXV

This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers in cases on appeal.

Park v. Kim, 91 F.4th 610 (2d Cir. 2024)

This column often discusses cases where attorneys commit the same mistakes that have been made (and reported) previously. Occasionally, a new error arises. Modern artificial intelligence (AI) technology has given rise to one—although a very old-fashioned remedy can easily protect against it.

This case began with a medical malpractice claim, which was dismissed by the district court as a sanction for numerous discovery order violations. Nothing out of the ordinary. However, the opening paragraphs of the opinion revealed another issue. The court of appeals stated that it would separately address the conduct of the plaintiff’s attorney on appeal—specifically, that the attorney’s “reply brief in this case includes a citation to a non-existent case, which she admits she generated using the artificial intelligence tool ChatGPT.” Id. at 612.

After quickly rejecting the plaintiff’s substantive arguments, the court turned its attention to its real target (and the likely reason that this is a reported decision).

First, the court laid out the history of the appeal. Plaintiff’s counsel received two extensions to file a reply brief, which was filed more than a week after the second extension expired. The court rejected that reply brief as defective. The attorney then missed the deadline to resubmit, and the defective reply brief was struck by the court. More than a month later, counsel finally filed a corrected reply brief, along with a motion to reconsider the order striking the initial brief, which the U.S. Court of Appeals for the Second Circuit generously granted. Id. at n.2.

The court’s generosity was not reciprocated by plaintiff’s counsel. The corrected reply brief cited only two cases, one of which the court was “unable to locate.” Id. at 614. In response to an order to submit a copy of the case, counsel replied that she was “unable to furnish a copy.” Id. As the court pointed out, the “reason she could not provide a copy of the case is that it does not exist—and indeed, [counsel] refers to the case at one point as ‘this non-existent case.”’ Id. Counsel did admit to using ChatGPT, which “suggested” the fake case.

The court noted that all attorneys practicing before it are bound by the federal rules, including not making a false statement of law. “At the very least, the duties imposed . . . require that attorneys read and thereby confirm the existence and validity of the legal authorities on which they rely.” Id. at 615. The decision quoted a recent district court decision that a “fake opinion is not ‘existing law’ and citation to a fake opinion does not provide a non-frivolous ground for extending, modifying, or reversing existing law. . . . An attempt to persuade a court or oppose an advisory by relying on fake opinions is an abuse of the adversary system.” Id. (quoting Mata v. Avianca Inc., 678 F. Supp. 3d 443, 461 (S.D.N.Y. 2023)).

In an attempt to avoid responsibility, counsel pointed out that ChatGPT was new and that the court should advise attorneys to be cautious in its use. The court rejected this ploy, stating that “a rule is not necessary to inform a licensed attorney, who is a member of the bar of this Court, that she must ensure her submissions to the Court are accurate.” Id. at 614. The decision concluded that the “brief presents a false statement of law to this Court, and it appears [counsel] made no inquiry, much less the reasonable inquiry required by Rule 11 and long-standing precedent, into the validity of the arguments she presented.” Id. at 615. The court referred counsel to its Grievance Panel and directed counsel to provide a copy (with translation) to her client.

In addition to the U.S. Court of Appeals for the Southern District of New York decision cited, other courts in New York, Colorado, Missouri, and even Canada have sanctioned attorneys for submitting fake citations created by ChatGPT.

As the Second Circuit decision made clear, the way to avoid this mistake is simple: read the case before you cite it in your brief. One would think that attorneys, especially those practicing in appellate courts, would have learned that long ago. However, even before AI, opinions were legion where an attorney miscited or misquoted cases.

Grant v. City of Long Beach, 96 F.4th 1255 (9th Cir. 2024)

While AI-generated fake cases may be a recent problem, this case shows that unscrupulous attorneys are able to generate fake cases without technological assistance.

This case was brought by a parent claiming constitutional violations in removing a child from a home. The district court granted summary judgment to the city and its police officer. On appeal, the plaintiffs filed an opposing brief but not a reply. The decision focused on problems with their initial brief.

The decision pointed out that the “appellants filed an opening brief replete with misrepresentations and fabricated case law.” Id. For two cases relied upon, the appellants misrepresented the facts and holding, claiming that they supported arguments regarding constitutional rights of parents even though “the words ‘parent’ and ‘child’ appear nowhere in the opinion[s].” Id. The opinion noted that the “[a]ppellants also misrepresent the facts and holdings of numerous other cases cited in the brief.” Id. (citing 11 other reported decisions). The opinion continued, “Unfortunately, [a]ppellants not only materially misrepresent the facts and holdings of the cases they cite in the brief, but they also cite two cases that do not appear to exist.” Id. at 1257 (emphasis added).

Prior to oral argument, the court issued an order for counsel to be prepared to discuss these two cases. When the court questioned counsel about the cases that “we could not locate,” counsel “did not acknowledge the fabrications.” Id. Rather, counsel claimed that one case was cited incorrectly but did not provide the correct citation, stating that the “case just did not apply, so I would have to just not rely on that case.” As to the other case, counsel merely claimed that it “would have to be distinguished from our case.” Id.

The opinion noted that the “[a]ppellants’ brief includes only a handful of accurate citations, almost all of which were of little use to this Court because they were not accompanied by a coherent explanation.” Id. In light of the misstatements in the appellants’ only brief, the court was “compelled to strike [a]ppellants’ brief and dismiss the appeal.” Id.

It is hard to know if one should be disgusted with counsel or in awe of counsel’s absolute gall! Having been caught making up cases and told to be prepared to respond at oral argument, counsel still showed up and tried to delude the court. The attorney’s conduct in this case is actually worse than in the prior case. That lawyer, although mistakenly and ineptly relying on AI, did not intend to deceive the court.

People v. Ashford Univ., LLC, 319 Cal. Rptr. 3d 132 (Cal. Ct. App. 4th Dist. 2024)

This case arose out of an action for false advertising and unfair competition by the state attorney general against an online university where three-quarters of students did not graduate. Before discussing (and rejecting) the defendants’ arguments on the merits, the court addressed “the factual background section of defendants’ opening brief, which violates several principals governing the content of appellate briefs.” Id. at 149.

The cited errors in the factual statement identified two main areas: (1) slanted and argumentative statements and (2) assertions not based on the record.

On the first, the court explained, “Defendants’ factual recital is a one-sided narrative that highlights favorable testimony while ignoring or downplaying the trial court’s adverse factual findings.” Id. Citing a leading appellate practice guide, the court pointed out that “your brief should accurately and fairly state the critical facts (including the evidence) free of bias.” Id. at 150 (quoting Eisenberg et al., California Practice Guide: Civil Appeals and Writs ¶ 9:27 (2023) (emphasis added by court)). Significantly, the defendants did not dispute the trial court’s finding of fact or make an argument as to the sufficiency of the evidence. The court even noted that had the defendants argued lack of substantial evidence, their briefing errors would have forfeited that argument. The court found that the defendants “have not set forth all the evidence necessary to understand the case.” Id. Thus, the court “disapproves of the distorted narrative defendants have presented here.” Id.

As to lack of support in the record, the defendants’ “brief is peppered with factual statements . . . not followed by a citation to the record or any supporting evidence”—and, therefore, the court disregarded them. Next, the factual statement relied upon exhibits that were not part of the record at trial or on the motion for new trial, so again the court disregarded these. Finally, the defendants cited documents from the internet that “violate the rule against citing matters outside the record.” Id.

The defendants tried to excuse their rule violations by claiming that their factual statements were “undisputed.” Id. at 153. However, the court pointed out that the state attorney general characterized the factual assertions as “untested” and “unsupported,” asking the court to disregard them. “This is sufficient to convey that the new matters are not accepted by the People, and they are, therefore, disputed.” Id.

The court did not impose any penalties on defendants other than disregarding many of their factual statements, but the extensive discussion in a published opinion indicates how serious the court considered their failures.

The court’s first complaint—that the factual statement was slanted and one-sided—contrasts with the advice often heard from experienced appellate attorneys that an entire brief, including the statement of facts, should be persuasive. The line between persuasive and improper can be a difficult one to walk, requiring careful attention. Here, the issue was not only the selection of evidence to be stressed or how the facts were presented to lead to a particular conclusion, but rather that defendants ignored or sought to diminish the trial court’s actual findings of fact. That was bound to get them into trouble.

Promptu Sys. Corp. v. Comcast Cable Commc’ns, LLC, 92 F.4th 1384 (Fed. Cir. 2024) (sua sponte order)

The underlying appeal involved a dispute over the district court’s construction of claims in a patent, which was ultimately rejected and remanded. This separate sua sponte order arose out of the court’s direction at oral argument that appellee’s counsel show cause why he should not be sanctioned for incorporating by reference pages from a brief in another case. The court noted, “We have repeatedly held that incorporating argument by reference ‘cannot be used to exceed word count.’” Id. at 1385 (quoting Microsoft Corp. v. DataTern, Inc., 755 F.3d 899, 910 (Fed. Cir. 2014)). The appellee’s incorporation by reference would have resulted in exceeding the limit by more than 1,300 words.

Counsel argued (and the court accepted) that he and his client were unaware of the prior case law until the appellant pointed it out in the reply brief. The court noted, though, that the Microsoft Corp. v. DataTern, Inc. decision “admonished the exact same law firm before us now for the exact same behavior.” Id. at 1385–86. Further, once the appellant’s reply brief made counsel aware, he should have brought the violation to the court’s attention and withdrawn the improper argument. “Here, appellee was made aware of our case law, but chose to do nothing.” Id. at 1386. Counsel, however, argued that the U.S. Court of Appeals for the Federal Circuit had not decided if the bar to incorporation applied to “arguments from the same party’s brief in a companion case set for argument before the same panel.” Id. The court replied that “[c]ounsel’s position is unreasonable given this court’s prior opinions.” Id.

Even in light of these aggravating factors, however, the court accepted that counsel himself was unaware and declined to impose sanctions. The court’s order did warn future litigants that incorporation of other briefs that exceed word limits would bring sanctions.

Caranchini v. Nationstar Mortg., LLC, 97 F.4th 1099 (8th Cir. 2024)

This column focuses on mistakes made on appeal from which readers can learn. Regular readers have seen numerous cases where a party appeals a trial court’s sanctions order and only makes things worse, so this column has frequently warned counsel to consider carefully whether to file an appeal of a sanctions order. This case is different because the attorney appealing sanctions won!

Counsel, representing a homeowner who had defaulted on her mortgage, brought a number of lawsuits to delay or stop foreclosure. In this fourth attempt, the attorney sued the loan servicer. The case was removed to federal court. The district court denied a motion to remand and dismissed the case. A month and half later, the defendant filed a motion for Rule 11 sanctions for filing a frivolous lawsuit. The plaintiff objected on the grounds that there was no opportunity to withdraw the complaint to take advantage of Rule 11’s safe harbor provision. The district court imposed sanctions anyway.

On appeal, the U.S. Court of Appeals for the Eighth Circuit agreed with the sanctioned attorney. It noted that the district court “speculated” that, even if provided the opportunity, counsel would not have withdrawn “given his colorable record in this case.” Id. at 1102. However, “assumptions do not excuse compliance with the text of Rule 11, as the safe harbor provision.” Id. (quoting Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., 682 F.3d 170, 175 (2d Cir. 2012) (safe harbor provision is a “strict procedural requirement”)).

The court of appeals did not excuse counsel’s conduct. It observed that “[t]here is no doubt” that the initial claims violated Rule 11. “The tactics employed [by counsel] were an abuse of the legal system. Unfortunately, [the defendant] did not follow the safe-harbor requirements outlined in Rule 11(c)(2).” Id. As a result, the court was “left with no other choice but to reverse the district court’s sanction award.” Id.

As this case demonstrates, there is an exception to every rule or piece of advice. One lesson for attorneys is to follow the correct procedures in seeking sanctions—but the better lesson might be for attorneys not to pursue frivolous claims in the first place. Next time, one might not be so lucky that opposing counsel fails to follow proper procedures.