The Fake Case Crisis: How AI is Shaking Trust in the Courts

The robot wrote the brief, but the lawyer pays the price.

AI can draft a legal brief in seconds, but it can also torch a lawyer’s reputation just as fast. 

Gavin and Stephen take on the legal profession’s uneasy embrace of generative AI and the very real fallout from fake cases, invented quotations, and AI-drafted arguments making their way into court filings. 

What starts as a conversation about efficiency quickly becomes a warning about ethics, reputation, and responsibility. AI may be the newest tool in the legal toolbox, but every citation, authority, and argument filed with the court still belongs to the lawyer whose name is on the document. Use it carelessly, and the consequences can be brutal: wasted court time, harmed clients, personal cost awards, and a credibility hit that may never fully go away.

Listen For:

05:07 Why Are Courts Seeing So Many AI-Hallucinated Cases?

10:25 How Risky Are Fake Quotes from Real Cases?

17:00 Who Pays When Lawyers File Unchecked AI Briefs?

21:18 Why Judges Can’t be the Last Line of Defence

23:28 Can Fake AI Cases Undo an Entire Arbitral Award?

25:54 How Can Lawyers Use AI Without Abdicating Judgment?

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Gardiner Roberts website | Gavin email | Stephen email  

Transcript

Gavin Tighe (00:00):
But what we've seen is a huge explosion pretty much globally of lawyers in all sorts of cases using precedents, which are not precedents at all, which are fake. This is going to be with those lawyers forever. It's just an absolute scarlet letter on a lawyer's reputation. Hello and welcome to the next episode of Beneath the Law. Stephen Thiele, sunny day. Chilly in Canada though for May.

Stephen Thiele (00:47):
It's still chilly, Gavin. It is sunny, but I'm still wearing a coat.

Gavin Tighe (00:52):
We're old enough to recall, and I'm old enough to recall, the advent of the internet. A lot of our listeners go, "What?" There was a time when there was no internet. And I recall the '80s when computers started and then all of a sudden the internet came along in the '90s and it totally changed the landscape of everything and the practice of law for sure. Because I remember when we went to law school, that crazy place, we used to go to the place called the library, all these things called books. And I used to have to go in there and I was thinking the other day, even silly things like a phone book. Talk about a generational reference. When's the last time anybody looked up somebody's phone number in a phone book?

Stephen Thiele (01:41):
Do phone booths still exist?

Gavin Tighe (01:43):
No, phone book. A phone book. Yeah.

Stephen Thiele (01:44):
I know that, but do phone booths still exist?

Gavin Tighe (01:47):
Well, yeah, because they used to have phone books in the phone booth. Remember they used to be in those little plastic covers and they used to pull them all. In any event, now we are into the next generation of revolution. I think it's going to be even more impactful than the internet was. And that's artificial intelligence and the advent. As it exponentially replicates and grows, I think it's going to change everything, particularly the practice of law.

Stephen Thiele (02:18):
Everybody's trying to get into the business of artificial intelligence, Gavin.

Gavin Tighe (02:22):
Reminds me of the dot-com bubble. Yeah. Remember that?

Stephen Thiele (02:25):
Exactly.

Gavin Tighe (02:25):
Everyone was a dot-com. It was like every stock was a dot-com. So here we go all over again. It's amazing. No matter how many times things are new, they're the same old, same old, just with a different label. But for the practice of law, I recall when first off, there was the internet searching of case law and it was looked at quite askew by the bench, by law professors. They didn't like it. And you had to check your online searches against the print version, make sure they were correct. I don't know if you remember those days.

Stephen Thiele (03:07):
Well, but you had to provide the print version to the court.

Gavin Tighe (03:11):
Yeah, they wouldn't take the online version. Now we live in the age of hyperlink where the court's got the cases baked right into the factum. But before we used to file these things called briefs of authorities, which were literally printed-out cases from court reports, actually edited court reporting. And if you think about it, how far the law had come from those days when nobody trusted anything if it came off of a computer. And I guess we're kind of back to the future these days, because now we've got cases on AI which are indeed non-existent.

Stephen Thiele (03:51):
Yeah. And at least when you're talking about those cases, they came off legal publishers who were the ones who designed those sites. Quicklaw was a law professor. Yeah, right. It was a law professor at Queen's and then kind of got rolled into LexisNexis now, but at least it was a legitimate known product that was used and it was accessible by the courts. The courts had access to it. So there wasn't really any issue with a fake case. The issue

Gavin Tighe (04:32):
Really wow. They didn't believe them though. They just

Stephen Thiele (04:35):
Were not vetted authorities. That's why there was a concern.

Gavin Tighe (04:40):
Right. They weren't edited. I mean, the days of actual law reports when law reports edited and published decisions, those days are long gone. Now we all just have direct-drive publishing where cases are automatically uploaded now onto CanLII, which is every case ever and there's no publisher anymore. It's just automatically there.

Stephen Thiele (05:06):
Right.

Gavin Tighe (05:06):
It's not

Stephen Thiele (05:06):
Vetted.

Gavin Tighe (05:07):
This is not vetted by anybody other than the judge, I suppose, who wrote it and the parties. But now we're seeing and I think in fairness, look, let's just go back to some basic principles. So what we're talking about is what I'll call a huge explosion in legal cases where lawyers are relying on authorities in argument, which is what you do. If you're making an argument, you rely on this case, that case, you say this case stands for this proposition and why the court can rely on it. And you cite the cases and whatnot. But what we've seen is a huge explosion pretty much globally of lawyers in all sorts of cases using precedents, which are not precedents at all, which are fake because they're using generative AI to write their factums and generative AI is not beneath just making stuff up, and it does.

Gavin Tighe (06:10):
It makes up cases or it misses cases or mixes them up or whatever. Anyways, it comes up with phony authorities, which then, because people are lazy frankly, and I come back to that point because that is exactly what's going on here in my opinion, they put these before the court and the courts are catching lawyers doing it and the consequences are severe. But when I say lawyers are lazy, I don't necessarily say that as a bad thing. I mean, I can tell you that at our age, when legal research became automated and you could do it online, I thought it was fantastic. I mean, it was way easier to search phrases and things like that on a search engine than it was to go to a CED, for example, and go find the case and then pull it off the shelf. And this is just, to me, it was fantastic.

(07:06):
 And I thought in a profession that bills by the hour, if you didn't do that, you were kind of cheating the client. You should try to do things in the most efficient way possible. And I say lazy, not necessarily in a bad way, but it was much, much easier to use automated legal research than books. And now for sure it's much, much easier to use artificial intelligence than to actually have to read the cases.

Stephen Thiele (07:35):
That's true. I've been a research lawyer for over 30 years now, Gavin, as you know. If you find the right book and you find the right chapter, which is not necessarily hard to find if you know actually what you're looking for, it's actually not that time-efficient sometimes to be using phrases because you can get too many things. And at least when you go to a published book, someone has already done the work and has cited the leading authorities and you don't need all those other authorities all the time that you get

Gavin Tighe (08:17):
Now. And put it in context.

Stephen Thiele (08:19):
Right. And they put it in context. Exactly. Regardless, you've got to read the case. But you're right. What is happening now is that I think a lot of lawyers unfortunately are taking shortcuts. They're looking for that one paragraph or two paragraphs of the decision that stand for a certain principle, which is fine, but you do have to read the entirety of the case to understand how that principle played out within the specific facts of the decision and whether that case is actually distinguishable or on point to the case that you're working on.

Gavin Tighe (09:00):
Right. But I actually think that it's more nefarious than that. I think that what's happening with AI is it's doing your work for you. And one of the things I've ... I mean, if you're like everybody, you go, "I got to go try ChatGPT and see what that..." It comes out with stuff that sounds pretty good. I mean, it really is impressive. It comes out in a nanosecond with this super polished, organized, nice headings and it looks great and reads great and you're going, wow, this is way better than any work product I could ever do. And I think a lot of lawyers are getting sucked into that and they're just saying, "Well, I'll just let ChatGPT or whatever it is..." I mean, there's a number of these AI providers out there, but let them write the factum for me.

Stephen Thiele (09:53):
But I think with all those, look, I think there's lots of problems with all of these products coming out. People are doing tests on these products. I was just at a seminar last week on a product. I'm sure the publisher was happy that I didn't stand up and ask my question because what I'm seeing is even their product has a 34% inaccuracy rate now.

Gavin Tighe (10:24):
Wow.

Stephen Thiele (10:25):
And that's really high

Gavin Tighe (10:26):
One in three.

Stephen Thiele (10:27):
Yeah. From playing in their own sandbox and that's not good. But what I heard, and I wanted to ask the question, I didn't have a chance, is that it seems to be actually using an AI agent to help run its searches. And as you know, and you've been on a couple of cases, this AI agent is making up quotations from real cases and that's becoming a real problem as well, right? It's not just the fake

Gavin Tighe (10:59):
Cases. Huge problems. It's the fake quotations. And lawyers really need to understand the huge risk that they're taking

(11:08):
 By relying on AI to do their job. And that's because the focus of this podcast today is really a cautionary tale to lawyers, especially young lawyers. I mean, the reality of it is reputations in the legal profession. I mean, I don't know that it... We live in a strange day and age in terms of what reputation is, but reputation matters. In this profession, there is nothing more important to a lawyer than their reputation. I mean, their reputation with other lawyers, their reputation with the public, with clients, and most importantly, their reputation with the bench because if a judge doesn't trust the lawyer, you're done. I mean, you're behind the eight ball whenever you're arguing a case in front of a judge who for whatever reason does not have confidence that they can rely on you. And that's one of the key relationships people forget about in being a lawyer, is the court depends on you.

(12:17):
 You are there in a number of rules. You're there obviously to advocate for your client, but you have another rule, which is you're an officer of the court and it's a privilege to be a lawyer and to be able to appear before a court and be able to make submissions. And what it means is that out of all the people that are out there, you are considered to be someone the court is prepared to listen to and put some credence in, and you lose that and then you have nothing.

Stephen Thiele (12:51):
Right. And we're talking, this really is now an ethical issue in terms of officers of the court. And what our podcast is about is you're the lawyer on the other side of the matter, you haven't used the fake cases, or you're a lawyer who is overseeing the work of another lawyer, you're trusting, and especially if it's a senior lawyer, you're trusting that lawyer's work and then all of a sudden that lawyer, because they decide to rely on their client to do the work or decide to cut corners in some respects and have the client write the brief and decide not to check, has put in a host of fake cases, non-existent cases, fake quotations and away we go when somebody catches you.

Gavin Tighe (13:47):
And that was a case out of Oregon where there was plenty of blame to go around. And let me put another cautionary tale out there. I mean, from the client's perspective, clients are paying lawyers by the hour. I mean, a lot of clients unfortunately will look at this and go, "Well, what do I need them for? I can do this myself on ChatGPT or Claude or whatever it is." I can write the factum. I'm not paying you to do it. I'm going to do it and then you put your name on it, lawyer. And a lot of lawyers, unfortunately, are okay, sure, why not? I'll rent out my letterhead and put my name on something that I didn't draft. So one of the cases we were dealing with that we were talking about is a case called, I think is it Couvette or Couverette, I think.

(14:46):
 Out of Oregon. And Oregon has an interesting rule that they only allow lawyers from Oregon. A lawyer from Oregon has to be on the record in an Oregon case. But in this case, it sounds like the client really wanted to micromanage. They wanted to have a California lawyer on the record. So he had to enlist an Oregon lawyer to sort of be his, I don't know, his wingman for lack of a better word. And in the meantime, it looks like, although I don't know that the facts ever came out, it looks like the client had a great deal to do with the actual creation of the written argument.

Stephen Thiele (15:28):
Yeah. The court actually makes that finding that the client, there was a very high likelihood that the client drafted the materials. And for any listener, do a Google search of Couverette versus Wisnovsky. There's a whole

Gavin Tighe (15:46):
Might have to spell out one, or maybe ChatGPT can spell it.

Stephen Thiele (15:50):
Yeah. Couverette, just search Couverette family winery business. There's a huge backstory behind apparently the California lawyer's son was dating the client's daughter and all kinds of stuff going on. So regardless, Oregon had some local rules, as you say, Gavin, that required an Oregon lawyer to basically, I'm going to call it chaperone the file and he didn't do the work. He just

Gavin Tighe (16:26):
Brought... Nobody did the work.

Stephen Thiele (16:27):
No, and the California lawyer didn't either. Right. Nobody did the work other than apparently the client and

Gavin Tighe (16:34):
Three

Stephen Thiele (16:34):
Briefs

Gavin Tighe (16:35):
Well, I don't think the client did the work. I mean

Stephen Thiele (16:38):
Who

Gavin Tighe (16:38):
Knows who did the work? Some robot did the work. That's the problem. The unnamed robot nobody caught. That's the problem.

Stephen Thiele (16:47):
And anyway, in a nutshell, the Oregon lawyer was found to have wilfully breached his local rules by not overseeing the matter, by not actually reviewing any of the documents that were filed, any of the briefs that were filed and checking to make sure that the citations and the law set out in those briefs was actually correct. He didn't take the brunt of the fall, the California lawyer did, but still an award was made because it was under federal court rules. The client wasn't the one who was responsible because the rules prevented the client from paying the costs. The lawyers had to pay the costs and the poor Oregon lawyer got hit with something like $14,500 in costs at the end, personally. And the California lawyer had to pay the remainder, which was something like $85,000, the defendant's costs in seeking what was called in Oregon a sanctions motion against the plaintiff. Those were their reasonable costs and

Gavin Tighe (18:07):
The

Stephen Thiele (18:07):
Rules allowed that to be charged to the lawyers.

Gavin Tighe (18:10):
So the reality of all of this is that you can't, as I say, you can't really rent out your name. If your name is going to go on a document, you have a responsibility with regards to that document. I mean, I know that in practice as a practical matter, it really does put an enormous amount of onus frankly on a lawyer. And in this situation, I have some sympathy on a practical level for the lawyers because it seems to me that usually what the client is doing is the client wants to do the work themselves because they don't want to pay for it. They don't want to pay for you to review the work. They don't want to pay for you to draft it for sure. They're doing this through using AI, but you really run a huge risk here. And I think the risk for these lawyers is far, far more than just the cost awards that they got whacked with.

(19:07):
 I mean, here we are in Canada talking about this. I mean, this is going to be with those lawyers forever. This will be their legacy, that, "Oh, you were the one who put the fake case..." The fake-case lawyers. So it's just an absolute scarlet letter on a lawyer's reputation.

Stephen Thiele (19:27):
Yeah, absolutely. And we're having a debate in our office, Gavin. There's a second case that came out of the United States that basically criticized an opposing lawyer who wasn't responsible for the fake cases that were put in a brief, but didn't review the brief of the other side and didn't even know that the other side had used the fake cases and the matter came before the court. And so

Gavin Tighe (19:58):
That's an interesting question.

Stephen Thiele (19:59):
Right. And so the judge is sitting there saying, "Well, wait a second, why didn't you catch this? That's your

Gavin Tighe (20:04):
Obligation." You opposing counsel.

Stephen Thiele (20:06):
Yeah, opposing counsel.

Gavin Tighe (20:07):
Why didn't you catch it?

Stephen Thiele (20:08):
Yeah. When you get an argument from the other side with their cases, I mean, you got to read the other side's cases. Usually you want to say, "Oh, they don't support the argument." Or usually you've got to read the other side's cases in order to distinguish them from the facts of your case and/or to say that they actually help you or whatever. But here what happened was the judge was, I think, rightly annoyed because all these lawyers are getting paid presumably to put forward an argument or knock down the other side's argument and none of them did their job. None of them reviewed the cases either that they were A, relying on or B, that the other side was relying on and it was left to the judge to catch the fact that the cases were not real. And the judge is saying, "That's not my job.

(21:02):
 I should be entitled to rely on counsel to put forward proper authority to make a reasoned argument on those authorities and opposing counsel. That's why we have an adversarial system. You're supposed to catch the other guy's mistakes."

Stephen Thiele (21:18):
100%. And the judge said, "Why are you basically leaving me as the last line of defence?" I was at a group meeting a month ago with Justice Myers who has made a couple of decisions here in Ontario with respect to the use of fake cases. I asked him, "Is anybody there to help you in terms of catching these fake cases?" And he said, "No." He doesn't have a clerk. Judges here in our courts, and I'm sure in courts in other jurisdictions, they're sitting there without any help and they're either knowing what the law is and then recognizing at a hearing that something is not quite right with an authority or they're having to look at it in chambers when they're writing their decision.

Gavin Tighe (22:14):
Yeah. I mean, they shouldn't be going to... I mean, the whole idea of a factum or written argument is to help the court with the... This is the pith and substance of the case and this is how it applies to the facts of this matter. I mean, that's what you should be... Good advocacy helps the judge and makes it easier for the judge to find in your favour than the other side. That's the nature of good advocacy. But when you have a situation where the judge is supposed to be able to rely on you but can't because you're putting before them authority and frankly, putting them at risk because what if they did rely on you? What if they did just... "Okay, well, whatever, this sounds good. I'll just put that in." And then it gets appealed and then you're in the Court of Appeal and who's going to get castigated then? Well, the judge will. I mean, the judge will be the one who's lambasted. There was a case recently where an arbitrator uncritically, I guess, read an argument, relied on fake cases and it was set aside immediately, the decision.

Stephen Thiele (23:28):
Yeah, there have been a couple of decisions like that.

Gavin Tighe (23:30):
It didn't matter what else was in the decision. You can't rely on fake cases and they vacated the whole arbitral award. What a waste of time and money and how embarrassing for everybody involved.

Stephen Thiele (23:39):
Well, and who pays for that at the end of the day other than the clients, unless the court makes an order that the lawyers have got to pay the money back.

Gavin Tighe (23:48):
Yeah. Well, I mean, I think what a huge waste of time and energy and the courts are, I think, rightfully annoyed that their officers are not doing their job and we are officers of the court and have a duty while we have a number one duty paramount to the client. Basically, if you're saying I'm relying on Smith v. Jones for the following proposition, and there is no Smith v. Jones and it doesn't stand for that proposition, you've lied to the court, right? You've misrepresented the law.

Stephen Thiele (24:28):
Yeah. Well, you've breached the ethical code of conduct.

Gavin Tighe (24:33):
Well, you've put yourself in a position where you have made a misrepresentation to the court about A, the existence of a case and B, the proposition for which it stands. So to me, I don't think people really realize that, but when your name's on it, I don't care if ChatGPT, Claude or whatever you come up with wrote it, your name's on it and it's not AI's reputation and nobody's going to sue AI and AI's not going to pay any cost awards, you are.

Stephen Thiele (25:13):
Until I guess AI gets sued, but they're using their disclaimers. I can tell you what the legal publishers say: "You need to check and verify. We're not responsible for anything that you use with our tools. You need to do the work."

Gavin Tighe (25:30):
They

Stephen Thiele (25:30):
Get

Gavin Tighe (25:31):
Paid for.

Stephen Thiele (25:32):
They're making their money. Right.

Gavin Tighe (25:36):
I mean, I do think it comes back to fundamental laziness. It's just easier, just like it used to be easier to do the online searches. I mean, it is easier. There's no question about it. Having some machine write your factum for you is way easier than writing it yourself.

Stephen Thiele (25:54):
Look, it's just another tool and you need to know how to manipulate the tools. It's now an added feature of your toolbox, your legal toolbox. Do I want to use AI? If I use AI, I still need to use my other tools to make sure that what AI is telling me is correct.

Gavin Tighe (26:14):
Doesn't matter which tool you're using.

Stephen Thiele (26:17):
Right. It doesn't matter which tool you're using. You need to check and you need to actually read the case or read the statute. If you want to have it help you draft the factum and it makes you sound better, by all means, go ahead and use that if that's what you feel. I find the style of writing to be actually a little bit weird.

Gavin Tighe (26:37):
I agree. It's not simple, but spellcheck, right? I mean using spellcheck, no one would say that that's... Of course you're going to use spellcheck. Right. I mean, but I think when you start to get beyond that, when you delegate your function to a machine and I mean, there were cases, I think there was a case and I can't remember the name of it, but I recall reading about a case where a very, very expensive New York law firm was wrapped with this. I mean, they were caught using AI. I mean, think about that. You pay some white-shoe firm thousands of dollars an hour, they're having AI do their work for you and then they're charging you for it. I mean, I always think it would be curious to see the dockets. Well

Stephen Thiele (27:25):
It's the most prominent law firms. They're using AI. I think clients are kind of demanding that lawyers use AI now to be more efficient, but you still have to check the work product.

Gavin Tighe (27:38):
I mean, I think that it's like, I don't want our listeners to think, "Well, you guys are in the dark ages." I think actually you kind of have to use all these tools. I mean, the reality of it is if the other side is using the tools, you better be using them. It's just a function of how do you use them and you better not trust them totally. I mean, at the end of the day, it's your reputation, not the machine's. So sure. I mean, it's a tool. Use it if it makes things better, faster, maybe it comes up with some case you... And I think all these tools are going to be... You have to use them, but really if the laziness of not checking what's in your factum and from not reading your own cases is just... it's really inexcusable, particularly where you're getting paid to do exactly that.

Stephen Thiele (28:35):
I just find, Gavin, I'll be quite honest with you, thinking about this, when AI first came out, I thought, "You know what? It's going to eliminate jobs because it's doing the work for us." But on the other hand, seeing all these cases now and hearing all these stories, it's almost adding costs because

Gavin Tighe (29:02):
But then again, I mean, there will be growing pains. I mean, I think that anyone who thinks that AI isn't here to stay is crazy. It's definitely here to stay.

Stephen Thiele (29:13):
Here to stay.

Gavin Tighe (29:15):
These genies never go back in the bottle and every technological advance that comes along is going to be adopted. And if you get on the train or it runs over you, those are your two choices. I just think that as a profession, particularly the legal profession and any profession, we really can't abdicate our professional responsibility because a machine can do it cheaper and faster. Otherwise, you kind of make yourself useless. What good is a legal profession if they have no credibility and if they have no real use anymore? They're really making themselves redundant.

Stephen Thiele (30:00):
Redundant. Yeah. And I think, Gavin, that's a good warning or good advice to everyone, lawyers on both sides. It's not just the lawyer producing the document, it's the lawyer who's receiving the document. Don't be lazy, do your job.

Gavin Tighe (30:22):
Words to live by and always remember if no one is above the law, everyone is beneath it. Thanks again, Stephen. Thanks to our producer, Doug Downs. Please rate us where you get your podcasts. Flip it over to a friend if you enjoyed it and even if you didn't, flip it over to a friend. If we annoy you, at least we're getting a reaction. So until next time, see you later.