by Matthew Russell Lee, Patreon Book Substack
SDNY COURTHOUSE, June 8 – As law offices including those of prosecutors begin to use generative artificial intelligence like ChatGPT and Google's Bard, it's worse than a matter of boiler plate or plagiarism.
There are cases and precedents made up out of whole cloth.
All of this came to a head on June 8, when U.S. District Court for the Southern District of New York Judge P. Kevin Castel heard the case of Roberto Mata v. Avianca, Inc., on removal from the Supreme Court of the State of New York in Manhattan.
Inner City Press live tweeted it, thread here:
All rise!
Judge Castel: I will place Mr. [Peter] LoDuca under oath... Who long have you been admitted to this court?
LoDuca: Since 1989.
Judge Castel: How do you do legal research? You, personally.
LoDuca: I try to find cases I can use.
Judge Castel: Books? Westlaw? Lexis?
LoDuca: I have been using FastCast. In the 1980s I used Westlaw and Lexis.
Judge Castel: Do you use libraries?
LoDoca: I do it online now.
Judge Castel: What did you use in the interim between when you stopped Westlaw and started with FastCase?
LoDoca: Law library, Bronx County...
Judge Castel: What was your understanding of your obligation in connection with your March 1 submission? Under Rule 11?
LoDuca: To be factual and truthful. I replied on my colleague Steven Schwartz, with me at Levidow, Levidow & Oberman
Judge Castel: Did you do anything other than sign your affirmation? Did you read any of the cases?
LoDuca: No.
Judge Castel: Did you do anything to make sure those cases existed?
LoDuca: No.
Judge Castel: Then Avianca replied -
LoDuca: I did not read it.
Judge Castel: Did Mr. Schwartz alert you to this, from Avianca's reply memo?
LoDoca: No.
Judge Castel: And when you got my orders of April 11 and 12?
LoDuca: I told Mr. Schwartz the Court would like to see the cases cited.
Judge Castel: Do you recall writing to me you were going on vacation? And the Court giving you until April 25?
LoDuca: Yes. Judge Castel: Was it true you were going on vacation? LoDuca: No, judge.
Judge Castel: Let's take a look at your affidavit. Do you have it? [LoDuca flips through papers] Now I do.
Judge Castel: Let's look at Varghese v. China South Airlines - the 2d paragraph goes in a totally different directionJudge Castel: You did not see this was a bogus case?
LoDuca: No. Judge Castel: You see that it is in different fonts? LoDoca: A little bit larger... Judge Castel: Who typed this? LoDuca: I believe it was Mr. Schwartz. Judge Castel: Take a look at the notarization here - it's dated April, but notarized in January. When did you sign it? LoDuca: In April.
Judge Castel: Did you have a vacation in April? LoDuca: No. But Mr. Schwartz was away... Judge Castel: Do you agree the 6 cases are non existent? LoDuca: Regretfully yes. Judge: I have all the answers I need. Do you want to make a statement? LoDuca: This pains me
Counsel on June 8, 2023, courtesy to Inner City Press from Elizabeth Williams
LoDuca: I have worked with Mr. Schwartz for 27 years. I should have been more skeptical. I can't go back and change what was done. This will never happen again. Judge Castel: Thank you. Mr. Schwartz, step forward so I can put you under oath. [Does]
Judge Castel: How many cases have you done? 1000? Schwartz: Yes Judge Castel: How do you conduct legal research? Schwartz: I research cases. Judge Castel: Do you read them? Schwartz: Yes. Judge Castel: OK... When did you start with Fast Case? Schwartz: as LoisLaw
Judge Castel: Do you use Lexis? Schwartz: I have never signed on. Judge Castel: Your submission to me says you can access Lexis at a bar association. Schwartz: True.
Judge: Did you prepare the March 1 memo? Schwartz: Yes. I used Fast Case. But it did not have Federal cases that I needed to find. I tried Google. I had heard of Chat GPT...
Judge Castel: Alright - what did it produce for you? Schwartz: I asked it questions
Judge Castel: About the Montreal Convention? Or the position you wanted to take? Schwartz: Yes, for our position. Judge Castel: You were not asked for an objective view, but cases to support your position? Schwartz: I asked it for its analysis
Judge Castel: Did you ask Chat GPT what the law was, or only for a case to support you? It wrote a case for you. Do you cite cases without reading them? Schwartz: No. Judge Castel: What caused your departure here? Schwartz: I thought Chat GPT was a search engine
Judge Castel: Did you look for the Varghese case? Schwartz: Yes. I couldn't find it. Judge Castel: And yet you cited it in your filing. Schwartz: I had no idea Chat GPT made up cases. I was operating under a misperception.
Judge Castel: Mr. Schwartz, I think you are selling yourself short. You say your verify cases. Schwartz: I, I, I thought there were cases that could not be found on Google.
Judge Castel: Six cases, none found on Google. This non existent case Varghese, the excerpt you had was inconsistent, even on the first page [photo above in thread] Can we agree that's legal jibberish? Schwartz: I see that now. I just thought it was excerpts
Judge Castel: When Avianca said you cited non existent cases? Schwartz: They said they couldn't find them. I figured I'd go back - but I continued to be duped by Chat GPT. I wanted to be transparent to the court. I went to Chat GPT - Judge: We're not up to that.
Judge Castel: Avianca put your cases in quotations... You know what F.3d means, right? Schwartz: Federal district, third department? Judge Castel: Have you heard of the Federal Reporter? Schwartz: Yes. Judge Castel: That's a book, right? Schwartz: Correct.
Judge Castel: So how could you say you thought they were unpublished? Schwartz: My unfamiliarity with Federal cases. The cite [site?] looked legitimate. I looked up the judge. Judge Castel: Their reply was only 5 pages. What was your reaction? Schwartz: The same
Judge Castel: So you were the one going on vacation, returning on April 18? Schwartz: Yes. Judge Castel: When you saw the Court's order it wanted to see the cases, did it cross your mind that the Court checked for the cases? Schwartz: I just wanted to comply
Judge Castel: You told me that Chat GPT supplemented your research - but what was it supplementing? Schwartz: I'd used Fast Case at the beginning. Judge: Chat GPT wasn't supplementing your research - it was your research, right? Schwartz: Yes.
Judge Castel: And the affidavit you prepared, wtih the different fonts - how was it notarized? Schwartz: We used an older affidavit and just changed the caption and the content. We forgot to change the month. Judge Castel: But you corrected +h to th, and the year Judge Castel: You prepared the affidavit and then what? Schwartz: I probably went into his office. Judge Castel: Where is that?
Schwartz: 20 feet away from mine. He looked it over and he signed it. Just Castel: Anything else? Schwartz: I apologize
Schwartz: I have suffered professionally from the publicity this has received. I have never been involved in anything like this. I hope I can put this matter behind me. I have taken a CLE court on Artificial Intelligence. Safeguards will be put in place.
Judge Castel: Does the law firm representative have anything to say? Partner of Levidow, Levidow & Oberman: We regret what's occurred. We practice primarily in state court, and Fast Case has been enough. There was a billing error and we did not have Federal access
Counsel to Avianca: This case should be dismissed. They have no caselaw. Counsel to LoDuca: Focus on my client's intent - he was helping Schwartz, he had no reason to doubt, to think these were fake cases. Counsel to Schwartz: This has buzz due to schadenfreude
Counsel to Schwartz: There used to be only Lexis, Westlaw and the books. Now there are many, many more. There are 100s of AI vendors that law firms use. Many lawyers have been burned. My client was playing with live ammo, which made up caselaw. He had no idea
Counsel to Schwartz: The cases seemed real. There were no disclaimers. When Mr. Schwartz went back to it, it doubled down and kept lying to him. There's a problem available to lawyers that makes up cases. But they should not be sanctioned
Counsel to Schwartz: He was conducting research; he thought Chat GPT was collecting information from actual sources. But it was not willful. Judge Castel: Do you have something new to say? Counsel to Schwartz: Yes. The public needs a stronger warning.
Counsel to Schwartz: The firm has taken a CLE. Judge Castel: Don't just reiterate your written submissions. Ok, some final comments. I will be taking this under advisement and entering a written decision. It's been called a mistake - but there's more
Judge Castel: There was a reply brief. The record will reflect whether that put Mr. Schwartz and Mr. LoDuca on actual notice that their cases were non existent. Mr. LoDuca was asked for the cases - we know what he did, and Mr. Schwartz did
Judge Castel: The matter is under advisement. Adjourned.
More on Substack here
Plaintiff's counsel Steven A. Schwartz, not admitted to SDNY, admits in an affidavit signed May 24 and docketed on May 25 that while "Peter Loduca, Esq, an associate for the law firm of Levidow Levidow & Oberman, PC became the attorney of record on the case" he, Schwartz, "continued to perform all of the legal work that the case required."
Now problematic for Schwartz, and possibly Loduca, was the use of Chat GPT CGT to put or slap together Mata's affirmation in opposition.
As Schwartz formally puts it, "your affiant consulted the artificial intelligence website Chat GPT [and] did locate and cite the following cases in the affirmation in opposition submitted, which this Court has found to be nonexistent:
Varghese v. China Southern Airlines Co Ltd, 925 F.3d 1339 (11th Cir. 2019)
Shaboonv. Egyptair 2013 IL App (1st) 111279-U (Il App. Ct. 2013)
Petersen v. Iran Air 905 F. Supp 2d 121 (D.D.C. 2012)
Martinez v. Delta Airlines, Inc, 2019 WL 4639462 (Tex. App. Sept. 25, 2019)
Estate of Durden v. KLM Royal Dutch Airlines, 2017 WL 2418825 (Ga. Ct. App. June 5, 2017)
Miller v. United Airlines, Inc, 174 F.3d 366 (2d Cir. 1999).
Again, those cases do not exist. Schwartz writes that "the citations and opinions in question were provided by Chat GPT which also provided its legal source and assured the reliability of ts content. Excerpts from the queries presented and responses provided are attached" to his affidavit.
But for Judge Castel, will that be enough? He issued a second order that LoDuca "is not entitled to a do-over." On June 6, LoDuca submitted a declaration apologizing for a previous inaccurately-dated affidavit, and saying the press has shamed him. Watch this site.
The case is Mata v. Avianca, Inc., 22-cv-1461 (Castel)
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