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The Larger Cost of Reckless GAI Use in Litigation

Jeanne M Huey 

March 3, 2025

Courts, opposing parties, and clients all suffer when lawyers fail to properly vet work generated by artificial intelligence (“AI”), leading to wasted judicial resources, procedural delays, and broken client and public trust. 

Gauthier: GAI Hallucinations in Court Filings 

A recent case serves as a stark reminder that competence and diligence in using generative AI (“GAI”) tools is not optional but is an ethical imperative. 

In Gauthier v. Goodyear Tire & Rubber Co., a lawyer was sanctioned for submitting unverified GAI-generated content in a response to a motion for summary judgment. No. 1:23-CV-281 (E.D. Tex. Nov. 25, 2024). This included two citations to entirely fabricated cases and nonexistent quotations from seven actual cases—that is, “hallucinations.” 

In sanctioning the lawyer, the court determined that the lawyer submitted a false statement of law to the court and failed to rectify the mistake after opposing counsel pointed it out in their reply. Instead, the lawyer did not address the error until the court issued a show-cause order. The court also remarked that “it is unclear what legal research, if any,” the lawyer conducted before filing the response. Id. at *5. 

The lawyer was ordered to pay $2,000 into the court registry, to take one hour of CLE on the topic of GAI in the legal field, and to provide his client with a copy of the sanctions order. The sanctions imposed were relatively mild considering the potential harm to the client, the opposing party, and the integrity of the court system. 

Wasted Resources and Judicial Frustration 

GAI-generated errors like those in Gauthier force courts to spend time unraveling the problem rather than addressing the substantive legal issues. That’s why courts increasingly impose strict requirements in their local rules regarding GAI use. 

In addition to finding that the lawyer violated Federal Rule of Civil Procedure 11, the Gauthier court found violations of its local rules requiring lawyers to exercise candor and diligence and mandating that lawyers review and verify any computer-generated content before submitting it. 

Moreover, the court likely could have found a violation of ABA Model Rule 3.3 pertaining to candor to the tribunal, and ABA Model Rule 8.4(c) and (d) for engaging in conduct “involving dishonesty, fraud, deceit or misrepresentation” and that is “prejudicial to the administration of justice.” The lawyer also could have been referred to the local disciplinary authority by the court, opposing counsel, opposing party, or client. 

Rule 11 already provides a framework for addressing these concerns, but if lawyers continue to disregard it, courts may impose stricter measures. Lead counsel might be required to certify or swear to the accuracy of every filing—something their signature should already indicate. Courts could mandate CLE credits on AI use as a condition for good standing or pro hac vice admission. Additional burdens may include requiring attorneys to keep records of all GAI-generated prompts used in preparing the filing or to attach every cited case as an appendix with key holdings and quotations highlighted. Courts might also implement prefiling review requirements, mandating independent verification of AI-generated content before docketing. 

Unnecessary Burdens and Expenses for Opposing Parties 

In Gauthier, the opposing counsel said that they had spent significant time and resources—over $7,500 in fees—determining that the citations and quotes in the response were fictitious and bringing the issue to the court’s attention. However, lawyers who use GAI irresponsibly do not simply create wasted work for their adversaries. An offending lawyer almost certainly violates their ethical obligations under ABA Model Rule 3.1, which prohibits lawyers from bringing or defending claims that lack a legal or factual basis, ABA Model Rule 3.2, which requires lawyers to make reasonable efforts to expedite litigation, and ABA Model Rule 3.4, which mandates fairness to opposing parties by prohibiting conduct that delays or burdens litigation without substantial justification. 

Although courts may not always directly compensate opposing counsel for fees incurred by the other side’s careless use of GAI—the Gauthier court did not—judges are not blind to the larger impact of such conduct. If GAI-related errors continue to occur, lawyers can expect (and should ask) courts to shift the burden of these costs onto the offending lawyers through harsher sanctions and fee-shifting orders. 

Sanctions and Eroded Client Trust 

The most direct impact of GAI incompetence is on the lawyer-client relationship. In Gauthier, the court ordered that the sanctions order be provided to the lawyer’s client so that the client would know that his lawyer had been sanctioned for submitting false information to the court. 

Beyond the immediate embarrassment and potential financial consequences to the lawyer, basic competence is at play. ABA Model Rule 1.1 Comment 8 requires lawyers to maintain competence in the technology that they are using in their practice, including understanding the technology’s benefits and risks. A lawyer who does not understand how GAI functions or fails to verify GAI-generated work has not met this duty of competence. While clients expect lawyers to be efficient and cost-effective and may think that using GAI will help reduce legal fees, they do not pay lawyers to take risks with their case outcomes; they certainly don’t pay for them to misrepresent the law and be embarrassed in front of a judge. A single GAI-related error could permanently undermine clients’ faith in their attorney and end the representation. 

The Public’s Perception: Lawyers Need to Control the Narrative 

Currently, the public is receiving two conflicting messages about GAI: 

• “GAI will replace lawyers.” 

• “Lawyers are getting sanctioned because they do not know how to use GAI.” 

Neither narrative is good for the profession. Clients will resist paying for legal expertise if GAI is considered an inevitable replacement. Public confidence in the legal system will erode if lawyers can’t be trusted to understand and use GAI correctly. 

The only way to control this perception is through responsible behavior, professionalism, and a commitment to meeting and exceeding our ethical duties under the rules when we use GIA and related technology. It will also be necessary to effectively communicate with clients about GAI and how it might be used within the firm, such as in billing software, or in their case, which may require their informed consent. 

Ethics opinions and court rules concerning GAI differ across jurisdictions, and the applicable standards of care are evolving rapidly. Staying current and ethically integrating GAI tools into our law practices will take time and attention. Those who fail to do so risk not just sanctions but harm to both their professional reputation and the credibility of the legal system: lawyers who understand the risks and benefits of GAI and implement its use responsibly will not only protect their practice but also strengthen public trust in the profession and help shape its future. 

© 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 

Four Strategies for Young Lawyers to Combat Bullying

Jeanne M. Huey
January 29, 2024

Many young lawyers encounter bullying from opposing counsel, senior colleagues, or even the court. Bullying can take various forms, including condescension; public humiliation; verbal attacks; or, in litigation, a refusal to cooperate to reach even the most basic agreements between counsel. While being a litigator demands resilience, tolerating such behavior is neither necessary nor productive.

Master Emotional Detachment and Communication
Bullying thrives on eliciting emotional responses. Young lawyers should master emotional detachment when confronted with aggressive or condescending behavior. This does not mean suppressing emotions indefinitely but rather choosing not to let the bully control the atmosphere at that moment. Staying calm, composed, and focused on the substantive issues of the case demonstrates professionalism and denies the bully the satisfaction of a reaction.
When inappropriate behavior cannot go unaddressed, be direct but professional. For example, if opposing counsel makes a derogatory remark, a response like “I’d appreciate it if we kept the discussion focused on the legal issues” sets boundaries without escalating conflict or personalizing the inappropriate conduct. You may need to do this more than once, and if it doesn’t work, you should not be afraid to say something like “I don’t think we’re getting anywhere today”—and end the conversation either by leaving or hanging up.

Develop Strong Legal Skills
Redirecting the conversation to substantive issues demonstrates your focus, command of the matter, and competence—all of which act as effective shields against bullying. Thorough preparation can prevent bullies from exploiting perceived weaknesses. When a bully’s criticisms are unfounded, your confidence in your work will also help you remain calm and not feel the need to interrupt or respond in kind.

Be meticulous in your research, writing, and courtroom preparation to build a reputation for excellence that commands respect. As you work to make your reputation at the courthouse, the judges who know you as a competent and confident professional will not be swayed by the opposing counsel who tries to interrupt or bully you. Over time, your reputation for competence and professionalism will precede you, and others will be less likely to engage in unprofessional behavior when they face you in a case.

Leverage Procedural Rules Strategically
Judges are generally intolerant of conduct that repeatedly disrupts the administration of justice, and procedural remedies can be powerful equalizers in the face of unprofessional conduct by opposing counsel. Understanding these rules and using them judiciously demonstrates your command of the law and reinforces your professional credibility. Federal, state, local, and even court rules, scheduling orders, or agreements between counsel may provide procedures to hold a bully accountable for unprofessional behavior.

Federal Rule of Civil Procedure 37 addresses failures to disclose or cooperate in discovery and can result in sanctions against the offender. Federal Rule of Civil Procedure 11 provides for sanctions against an attorney or party who signs a pleading that is not well-grounded in fact or warranted by existing law or that is filed for an improper purpose, such as to harass, delay, or cause needless litigation costs. Any attorney or individual permitted to practice in federal or territorial courts who “multiplies the proceedings in any case unreasonably and vexatiously” may also be held personally responsible under 28 U.S.C.A. § 1927 for covering the additional costs, expenses, and attorney fees caused by such actions. And do not forget the court’s inherent authority to sanction attorneys and parties for misconduct that abuses the judicial process.

Judicial intervention is never your first resort, and you should not request sanctions until the bully has proven to the court—usually by engaging in repeated bad conduct—that the sanctions are necessary and just. Judges recognize that unnecessary requests for judicial intervention are themselves a form of bullying, and you never want to be seen as a bully.

Seek Mentorship and Prioritize Self-Care
The emotional toll of bullying can be significant; when faced with bullying directed at you, it is crucial to take steps to preserve your resilience and happiness. Cultivating relationships with mentors and peers can provide guidance and a buffer against professional challenges, including bullying. Trusted mentors can offer advice, share strategies for handling difficult situations, and sometimes intervene on your behalf. Networking with peers through bar associations, young lawyer groups, or specialized practice organizations creates a support system where experiences and insights are shared. You can seek support and help others who may need it through these connections and networks.

Conclusion
These are just a few suggestions for dealing with bullies in the legal profession. While standing up to bullying can be daunting, recognizing and addressing bullying professionally can protect your reputation and mental health while contributing to a more respectful legal community for everyone.

© 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.