Judges are still figuring out the best way to preempt misuse of generative AI (GenAI) in their courts as use of AI technology becomes more commonplace in litigation.
Since Judge Brantley Starr of the U.S. District Court for the Northern District of Texas issued the first standing order on the use of AI in preparing court filings in 2023 (Rules & Orders | Northern District of Texas | United States District Court), hundreds of state and federal judges have amended or issued standing orders, general orders, local rules, pretrial orders, and other guidance to address AI use and misuse in their courtrooms. As this landscape continues to evolve, practitioners should understand that judges continue forging their own paths.
Courts throughout New York are grappling with the increasing use of AI-generated legal documents and the integrity and accuracy (or lack thereof) of court filings. Despite growing concern, there is not (yet) any single, district, or state-wide local rule on disclosing the use of AI in court filings. Rather, individual judges have issued standing orders or individual rules that, among other things, mandate disclosure of the use of AI when drafting/preparing submissions, require certification that any AI-generated document has been independently reviewed, and require counsel to confirm all filings comply with Rule 11, or its state court equivalent. These local court-level rules are part of an evolving trend toward mandatory transparency, accountability, and review of AI-generated legal documents to maintain accuracy and integrity in judicial proceedings. Steps must be taken to safeguard against errors, bias, fabrication, and the use of fictitious authority from GenAI systems, while protecting client confidentiality and preserving claims of privilege and protection, where applicable, in court dockets.
Moreover, AI disclosure rules underscore that all final submissions remain the lawyer’s responsibility. It is the lawyer’s duty to ensure all AI-generated outputs are accurate and free from misleading or hallucinated content.
