Federal judges have begun issuing orders requiring litigants to disclose whether they’ve used AI to draft court filings, following the highly publicized case of New York attorney Steven Schwartz. Mr. Schwartz, along with his firm, was fined thousands of dollars for filing a brief filled with citations to fake case law generated by ChatGPT.
Perhaps worse, Mr. Schwartz and his colleague also experienced every litigator’s worst nightmare: a judicial scolding for ineptitude. The two lawyers were the subject of a strongly worded order from the Southern District of New York’s Judge P. Kevin Castel, who wrote that they acted “in bad faith” and “abandoned their responsibilities.” And because the story went viral, the reputational damage to Mr. Schwartz and his firm became a global sensation.
If you’re considering using AI in your practice or already are, rest assured: it is absolutely possible to realize AI’s benefits without making headlines or becoming the next “ChatGPT lawyer.”
Step 1: Choose the right AI—and check your cites
Not all AI is the same. Generative AI is different from general AI, and there’s a lot of variation within generative AI. As we’ve written, crucial distinctions exist between general-use generative AI such as ChatGPT and professional-grade generative AI tailored to the law, such as CoCounsel. For one, ChatGPT hallucinates responses, whereas CoCounsel, because it’s grounded in a reliable legal database, does not.
No matter what AI platform you use for legal research, always verify the AI’s output, including all sources and citations. Look up cases, statutes, and any quoted language to ensure they exist and say what the AI reports they say—and don’t just ask the AI to verify that its own output is accurate.
Bottom line: AI is a powerful tool for expediting legal research and drafting that in no way replaces the lawyer or supplants their professional and ethical obligations. Every lawyer is always responsible for the work they submit to the courts, regardless of the tools they use to help them create that work.
Step 2: Know your judge
You’ve spent hours agonizing over a brief (including checking those citations), and you’re now ready to file. But before you do, determine whether any court-specific AI rules apply to your filing.
This is not a new practice: even before AI, every judge or magistrate set the rules for their own courtroom. Check with your court for judge-specific procedures. Many federal judges display these orders on their individual pages on uscourts.gov.
For example, Judge Michael M. Bayslon, who sits in the Eastern District of Pennsylvania, provides a link to his standing order on AI governing cases assigned to his court. Filing with a state judge? Check with your local court.
Step 3: Disclose the right information
While multiple judicial orders require AI disclosures, each has its own unique requirements. Some compel lawyers to disclose the use of “AI,” while others are more specific, requiring disclosure when “generative AI” is used. While the orders vary, they’re generally triggered when generative AI is used to draft portions of court filings.
Beyond the distinction between types of AI, read each order closely for disclosure guidance. Some judges require simply that litigants disclose whether or not AI has been used, while others specify that notice must be given regarding the portions of filings that have been drafted by AI. Still others require certification that use of AI has not resulted in disclosure of confidential or proprietary information to unauthorized parties.
Step 4: Choose how to disclose your use of AI
Once you know the rules, you need to decide how to disclose your use of AI to the court. One option is to include a statement in your pleadings or briefs that you’ve used AI to help with your case. This will put the court on notice that you’ve used AI and will allow them to ask any questions they might have.
An alternative is to give a more detailed explanation of how you’ve used AI. This might include a description of the technology, how it works, and how it is helping you with your case, giving the court a better understanding of the AI and how you’re using it. (If you’re using CoCounsel, consult our help center article for specific guidance.)
Another route is to provide expert witness testimony about the use of AI in your case. The witness could explain the nuances of the technology and how it helps you with your case. This will give the court an even deeper understanding of the technology and its potential benefits.
Above all, be transparent about your use of AI. This not only helps prevent misunderstandings that could hurt your case, it helps the court grasp AI’s potential implications for your case—and could contribute to greater overall understanding and responsible use of this powerful innovation across the profession.
