AI Hallucinations And Judicial Derangements

0:11Welcome back to another edition of Thinking Like a Lawyer. I'm Joe Patrice from Above the Law. I'm joined by Catherine Rubino and Chris Williams also. Hey, friends. Hello, hello. We are back. We had a week off because we were involved in one of the busier weeks in legal, for those of you who are headquartered in New York as we are, which was legal week. So we'll talk a little bit about that in a bit. But that's why we weren't around last week. But we're back now, and that's exciting. And we will begin, as usual, with a little of the old small talk. How's everybody feeling today? I'm okay. I don't know, man.

0:47Are you wiped out from the week that was? I am, but that's not because of the vigor of legal week. But my family has an annual St. Patrick's Day party every year on the Saturday before the holiday. So that was this weekend. And it was, yeah, I mean, it's really good and fun. And my mother enjoys the fact that, you know, the people that were kids that went to the party 20 years ago are now bringing their kids to the party. So she enjoys that kind of generational thing, which is great. But there was it was just like a lot in a house that is not actually prepared for a nearly three year old, which is what I brought with me.

1:31That was my party trick. Yeah. Nice. Well, I found out apparently over the weekend Habermas died. Yes. I heard I was like 96 or something. I was like, I was unaware he was alive, to be fair. I feel that way about Morgan Freeman. I'm assuming he's still alive. I'm also assuming he was born in 82. So he just doesn't age in my mind. But yeah. Yeah, I know. So I spent a little bit of this morning listening to a, not a Habermas lecture, because he didn't speak much because of the speech impediment, but a lecture about Habermas and, you know, This notion that the nature of language itself suggests justice, the notion that we need to be able to communicate with each other and speak truthfully, which is a nice fantasy.

2:17But yeah, it's warming to read and hear things like that, considering the things we hear told by our government. Yeah, I did see a lot of stuff kind of lamenting the late career shift that he took where it did get a little bit more fanciful as the years went by and a little further away from kind of an old school, Frankfort -y kind of critical stuff. So, yeah, interesting. You know, he's a philosopher that, you know, I think lawyers have always kind of liked. He said that talking is powerful. Lawyers love to pat themselves on that. on the back about that. Think that it matters. Habermas talk. Yeah.

2:59Yeah. That's right. That's right. I love that for us. All right. Well, let's, you know, we've talked about this for a bit. Let's move on. Let me find my button. That's what she said. Catherine.

3:19There are one else listening. Okay. Okay. With that, we should transition to talk about our first story of the week. The biggest story of the week last week was something you were working on, Chris, about, I mean, look, a lot of things we talk about these days have to do with AI. This one is a situation of AI costing someone their job, but not in the way all the AI providers would like you to think. Yeah, so there's an assistant U.S. attorney coming out of North Carolina. Name is Rudy Renfer. I hope I'm saying that right, but if not, I'm sure AI can correct me. Got in trouble because he filed a response with a court that was, as the French say, wrong.

4:02Had a whole bunch of AI-generated quotes, faulty case holdings. And the way he got caught was there was this pro se litigant who read through, who, to be fair, was also a lawyer. But he read through and was like, hey, this isn't real, as the kids say. So he got in trouble, tried to fix it, but doubled down on more AI usage. And then the judge was like, tell me why I shouldn't, one, sanction you, but also everybody you're working with, which is a sentiment I think that judges need to have a lot more often when it comes to dealing with people who are being lazy with their work. I don't care if it's because of AI or whatever, just hold people accountable.

4:44he must not have been able to come up with a good reason why he shouldn't be sanctioned along with his department because he decided to step down rather than face the consequences. Yeah, I mean, it is nice to see judges starting to take the AI situation more seriously. I believe the total is now – I think we're now over 1 ,000 of AI screw-ups in legal cases. So it was all well and good early on, but here we are. The way I see it, AI mishaps were cute back when it was, I'm sorry, Your Honor, I am not a cat. This is a facial filter. I don't know how Zoom works. But in the big year of 2026, it's been years now.

5:25We need to treat this as if people should know better because they should. Yeah. I remember when the first big story happened, the Avianca one, there were a few people who were like, Like they should have the book thrown at them for making this mistake. And I thought, you know, this is so this technology is so new. They didn't understand that it had these risks, whatever. And I thought that that was a that was a, you know, I think they got$5 ,000 sanction or something like that. And that seemed to make sense at the time. There is no more excuse at this juncture. And the fact that courts continue with these largely slap on the wrist sanctions is only emboldening people to just take a lazy approach to their editing.

6:08And here we are. Sure. But like, I mean, I don't want to come across as being, you know, easy on folks who are using AI to write their briefs. But I'm not sure. Well, I mean, I'm not sure somebody like losing their job over it is necessarily in, you know, balanced response. either. I mean, I guess it was his choice in this instance, but and, you know, query whether or not all the things that we've already talked about, about all the problems working for the government currently might have also helped him make that decision. But it's, you know, I don't know. I don't think that you also deserve to lose your job necessarily.

6:46You know, it was able to be corrected. You know, there is a shortage of government attorneys. I'm not sure that this is necessarily the correct sanction either well especially on the first time well that's the thing it's not the first time he did it he did wrong and then he doubled down on doing wrong in the exact same way and even there was there was still the grace of the judge at least being like give me a reason why i shouldn't punish you rather than like directly punishing them there was a lot of grace in this story as far as i read it yeah i i will say that the give me a reason why is usually is usually uh that's that's usually judge speak for i'm going to do it decided you're going to yes so like maybe the order to show cause is usually a you're real already screwed yeah but no it is true like i i agree i think that the if this had been a mistake and they owned up to it it would be very different and i think that all the other conversations we've had about the DOJ do speak to this, right?

7:47Because it's the concerns that we have with the DOJ at this juncture are that they are not the highest of quality work anymore, that they are lying to tribunals by direction in a lot of cases. But I mean, this speaks to that too. Like it, the concern right now that multiple judges have voiced is, it is wild that when a assistant US attorney speaks, we no longer take that as the full benefit of the doubt. And while we were talking about that mostly for political reasons, this adds to that. It adds to the further tarnishing of that. And I also think I'm one of those folks who thinks the prosecutors probably should be held to a higher standard as far as this, since they control whether or not people go to jail and stuff.

8:33So yeah, so I'm a little bit more on the side of people need to get sanctioned harder. And in this instance, yeah, took the exit door, which good, you know, I guess nice to not throw all the office under the bus. But it does raise the issue, like what is going on in that office? You know, usually the workflow is not somebody writes a brief by themselves and no one ever looks at it. What's happening there? Well, the thing I think is interesting that I didn't get into the story because it was speculative and it's not the thing Joe thinks I'm going to say. I wonder how much of it was actually his decision to step down because like as I read the story the assumption being made was that he was the agent there that he decided to step down but it's like when there was the threat of collective punishment it makes a lot it also makes sense for a higher up to be like you need to fall on your sword because we're not dealing with this bullshit um again that's also true again I didn't have that in an article because it's speculative but I'm like really he was the one that of all the times to use of all the times to pull a my my culprit.

9:34It's when there's also other people above you that will get in trouble. Nah, you got told to do that. But the thing Joe thought I was going to say, there was prior coverage of a story where Pam Bondi was trying to put herself in another one of those I am the state positions where she was going to be the only one that would have been the one to determine if people in the DOJ could get sanctioned or what have you. Yeah. So in that instance, what The DOJ dropped, with no real warning, a proposed rule that would change the way in which assistant U.S. attorneys are governed. Basically, they would no longer be subject to – she wants to make it so that they are no longer subject to ethical rules in the state that they're in, which has long been and by statute is how it operates.

10:25And she wants to say that she and the DOJ itself gets to intervene and protect licenses there. Now, that wouldn't affect court sanction, judge sanctions and contempt and stuff like that. But if there had been follow on discipline, which theoretically there could be for something like this, that would be referred to state disciplinary authorities to punish somebody for making mistakes. and under this proposed rule, if it were to come to pass, that would be voided and it would be up to Pan Bondi whether or not somebody did anything wrong that could impact their license. Yeah, I imagine that you'd have to say, if you did get in trouble under Pan Bondi with that authority, you have to say three hail Trumps and like a certain amount of truth social posts to be forgiven.

11:14Well, no, absolutely. It's a very interesting story. It is another instance of everybody needs to AI is not going away particularly quickly. And so maybe, maybe it's time for you all to start editing your briefs a little bit closer. With that said, let's take a break here and then we'll transition to another story. Let's face it, you didn't become a lawyer to stress over summaries and analysis. You could hand it off, but you need an assistant you can trust. Co-counsel handles those important but tedious tasks that keep you from being a lawyer. And because it's trained only on expert legal content from Thomson Reuters, it's as precise as you are, which means less stress and more confidence to focus on what matters.

12:00Head to tr.com slash co-counsel to discover AI that lawyers swear by. All right. So, oh, wow. I actually just realized I said at the end that we'll transition to another story, I did not actually look at my cue to realize that that was the story that we were going to go into. No, no. So this story is about the Ninth Circuit. And it was a case about trans discrimination, actually. And the decision was about was a challenge to an enforcement action in Washington state. The people involved did not challenge the state law that actually protects against trans discrimination. They merely challenged the enforcement action.

12:46And that is a critical distinction for those of you who are lawyers, which I know a lot of you are. But for those who aren't, that is an important distinction. If you say that the law itself is good and you're only challenging the enforcement, you know, that changes the calculus. And in this instance, the Ninth Circuit ruled that since they were only challenging the enforcement action, yes, trans folks are protected under this law. So no, the enforcement of this law against the folks involved were, you know, was totally sound. That said, there were, there were, there was a dissent. There were a couple dissents.

13:22There were, there was dissent that was kind of more, you know, like what you would expect of a, you know, of a federal judge. And then there was Judge Lawrence Van Dyke, who, those of you who have followed this long enough, he was one of those judges who was ruled not qualified for the job, But the Republicans put him in this position anyway. And he began his opinion by talking about how this is a case about swinging dicks and went on from there. Oh, boy. Just to be clear, he didn't start talking about it. It was literally the opening sentence, right? Yes, yes. Let's be clear. When I say he began with this, I mean, that is the opening sentence.

14:03Like thesis statement. Yes. Yes. It descends from there into a series of diatribes against woke judges and all sorts of stuff. As far as a legal argument goes, he does not have much of one, but to the extent he has one, it is all a bunch of arguments about how this law shouldn't exist, which, of course, is not actually what the case is about since that is not an argument anyone has ever raised. He also goes into some, well, maybe there should be a private club exemption and maybe there should be certainly also not something that anybody has raised in this case. But it doesn't really matter because I think the consensus is that his whole point was he was just trying to audition for the Supreme, you know, Trump's favor.

14:52And that is literally stories we've written about Lawrence Van Dyke before, right, that he writes or has video dissents as well. Yeah. That we've also written about that are not written to convince lawyers of anything. Exactly what you said, Joe, that there isn't much law in any in this dissent in particular. And it's really just a way to get headlines. This is the sort of story that kind of breached the gate, the the the wall. And it's not just a legal story. This is the sort of story that mainstream publications are picking up as well, because the federal judge said this is a case about swinging dicks in the opening.

15:33So this is the exact sort of thing that catches the attention of the far right powers that be right now. You know, it brings me back to the – a few years ago there was some Yale law controversy about FedSoc people making all sorts of bigoted remarks and being like, hey, I have free speech. And all – that mentality, this kind of trolling for the sake of trolling is what's rewarded within the kind of – that is the coin of the realm in the right-wing legal movement at this point. Lawrence Van Dyke exemplifies that more than any other of the Trump judges probably. He knows that this is the sort of crude, vulgar conversation that will get him attention.

16:20He knows that these sorts of implicitly bigoted remarks are what appeals in this. I think I have a line in the article, something about how the conservative legal movement, when it changed its guiding intellectual light from William F. Buckley to Kid Rock, some things subtly changed. and that's where we are. And so I think of this as kind of like a law school story in that this is coming more and more because this is how these kids are. And we saw that in the law school story. He's kind of the vanguard of a movement of this, but this is what you should expect going forward unless something deeply changes with the way this movement operates.

17:02And I think we also need to call attention that his rhetoric has become increasingly more volatile the longer he's been on the court. He started by saying things like his colleagues were criminals on the Ninth Circuit. He said that they were possessed. He wrote he did a gun case. He wrote did a video dissent that he started calling the Ninth Circuit the circuit of wackadoo. And that was like almost too folksy for him. And now he kind of has has sort of talking about trans people in super offensive ways. And maybe this is the thing that will finally catch the attention. So this rehearing this was about a rehearing on Bonk.

17:38So it was only in front of the panel about whether or not they do this, whatever. And so three judges, yada, yada. But, you know, half the full court, including a bunch of the senior judges, do get involved in this case because in addition to the opinions in the case, there are multiple statements being lodged with it. And those statements are other judges who are out who are on the full Ninth Circuit who have no position in this case as such signed on to statements being like, this is not OK. And the biggest one involved, I think, 28, I think, senior judge, a senior and active judges and the chief judge writing about how this rhetoric and everything surrounding it is wildly inappropriate.

18:25It undermines the faith in the courts and the rule of law. Two judges, you know, kind of a center left and center right representative signed one by just a separate statement by themselves. It was a sentence long that was just like, we need to be better than this. We're better than this, basically. and I took this is actually something I wanted to spin out with you all because I got some some pushback on social media about this and I thought it was interesting I said you know well what about that got brought in most of the senior and active judges the full 51 judges on the ninth circuit but some like 22 of them said nothing uh and I was like you know that's kind of a silence is complicity uh point and I got some pushback because you know they They aren't supposed to be involved in this case.

19:15These senior judges are kind of – are very old, and they aren't really technically on this matter. So why would you expect that? You shouldn't whatever. I thought about that, and even if I were willing to carve out the – I think there are 10 – or no, 12 seniors who didn't have any involvement in it. Even if you carve those out, there's still a lot of people who should have been – should have said something one way or the other. but you know it got me thinking especially in contrast with we've talked a lot about judge newman in the federal circuit who's trying to do her job uh at a at an older age but she you know is still trying to be active you know with her trying to be active i thought it's such a juxtaposition to be like oh yeah but these 80 year old judges who are technically on senior status they don't have to pay attention to what's going on at their court and i'm like If you keep yourself on the letterhead, we expect the bare minimum of you.

20:11You have to step up in these sorts of situations. The email was circulated. Yeah, and yes, that's obviously true. But I think that the fact that Van Dyke is ramping up his rhetoric is also a reason to get everyone involved. They absolutely made a choice. Doing nothing is a choice, and maybe they would like to think themselves above the fray. But you have to look at what's happening to the judiciary currently in 2026 and say, oh, standing by the sidelines is not going to get the job done. I mean, yeah, there is a Nixon appointee here. And that. Yeah. But like, you know, you don't have to be on senior status if you can't do the job.

20:55You can retire then. Anyway. Yeah. I have questions that would lead me to conclusions. the first was obviously not this instance but in cases where there is a i'm trying to think if there even if there even is a norm here considering how ridiculous the the behavior of the judge was but in other cases where there's a panel of judges that aren't involved in the case is it it seems like it would be abnormal for them to just join in and give their opinions yeah so like given that them joining in to be that give their opinions it would be like cool if they did it but it doesn't seem like it's norm-breaking for them to not do so right so i wouldn't flack him for it that's a great point and that is that is the issue of one distinction so this statement is not an opinion so they don't take any stance on the on the decision itself in the separate statements they only say hey van dyke needs to get in line uh and not talk like this but related to that and this is the one where it still gets a little iffy is the given how politicized everything is read just just the statement hey he needs to get his act in order could be read as taking sides in a way that might not be in the best interests of judges who are interested in maintaining neutrality so like while there's also the interesting value of judges needing to police their own because who else is going to do it does that means of policing suggest that they are not neutral in cases to come.

22:21And that's a weirder position for me, and I'm not sure where to lie on it. But I think it's important for the conversation. And I think that is a great point. And I also think the fact that there were two statements, I think, is critical here. Because I think the one that McCown writes that most of them sign on to does talk a little bit about the case. I mean, it's not about the case, but talks about the specific things that he said. And, you know, you could interpret that if I'm signing on to this, maybe I'm endorsing some of the underlying merits, even though it expressly says no. But that's why I think that's why I go to the Owens and Forrest opinion, because they put out the statement separate.

23:01They intentionally did not sign on to that one and wrote the one that was just the sentence. We're we are better than this. They kept it as 12 words long to like take no stance on anything just other other than we can't allow our court to look like a circus and i think that that was i thought that opinion that statement was almost sitting there as a competing statement for hey if you're worried at all this is going to look like you're supporting the merits one way or the other you can sign on to this one and it'll be fine nobody's going to judge you for this one i don't know i would imagine that if it was a different instance and say the say the um that we need to act better is coming from the right.

23:44I think the take, I think even the ATL take would be, this is unnecessary moralizing. Judges are showing their hands by doing this. Maybe, it depends. I mean, obviously, context matters a lot. Because if the purpose is to police internally, have the conversation without putting it on paper. Like the fact that it is on paper is - But it already is on paper, right? That's the thing. The dissent already exists. People are reading it. And I think that it is even even if it's moralizing and I don't think it is when you're just saying we need to do better, you're being a jerk. Yeah. Right. I think that that is well within sort of the bounds of collegiality.

24:24Yeah. I mean, yeah. Like if it's yeah. Like obviously there's line drawing. Like if this were just somebody were unduly snippy, like an old school Scalia argument where they're just mean to the other judges. Sure. I could see moralizing there and responding to it with like, oh, come on, toughen up. But, you know, here we're taking we're taking pot shots at a group that's discriminated against. So, you know, it's already elevated. Yeah, no, it is. It's a series of interesting questions. I do think, though, that like at the point that so many judges are getting involved, it means that the opinions are getting circulated to everybody, even if they aren't technically on the panel.

25:06At that point, I think you kind of have to whether you want to or not, you have to come out with an opinion one way or the other, because at that point, like they called the bluff. And it is just going to force us all to look at the other 20 whatever judges who did nothing and go, well, what was your excuse? and four of those people who said nothing one way or the other were active judges and i don't understand at all how they got to avoid this but anyway well we should take a break and be back in a minute okay so closing out let's just have some quick talks about last week uh why we weren't here so it was legal week which i was the only person who went to the actual show itself but we all went to some of the surrounding events of the show.

25:54You know, we all were at Above the Law hosted a happy hour. Some of you were there, hopefully, and hopefully you had a good time. Others weren't, but keep an eye out for when we host events because it's nice to see everybody. And that was a good time had by all, I thought. Yes. I didn't know that many people were interested in legal tech. When we walked into the bar, I was like, one, the pizza is far better than I expected. And also, has this place ever been this crowded? Yeah, it was a smaller venue than we expected. You know, it's interesting. You never can tell who's all going to show up at those things because there's so many competing happy hours and all.

26:31Yeah, well, I also think it's interesting because Legal Tech moved its location this year, right? It was at the Javits Center, which is a little bit further off to the side than the previous location. So there was like a whole sort of new set of bars and locations that people were gravitating around. And I think that was probably part of it, too, trying to find our footing in new areas. Yeah. For the show itself, there were, I believe, something on the order of like 6 ,500 attendees or something like that. That's exactly how many people were in the bar. Yeah. It felt like it. But no, so it was a big show.

27:08Obviously, a lot of the conversation about AI, you know, to contrast with our opening story. These were more serious people about the tools that can bring AI to lawyers in something vaguely resembling a responsible manner. Well, and Joe, you went to the show, you talked to lots of people about AI, and I know that you're a bit of an AI skeptic, particularly as it comes to a lot of the agent stuff and a lot of the big promises. Is there more of a little bit of a pulling back of the sort of pie in the sky, the more sort of these cases that people or lawyers are misusing AI in really problematic ways?

27:48Is there sort of a sense that maybe we need to pull back on these promises because the market ain't ready for it? It's weird. I don't think really because I don't think a lot of the hype is controlled at this level. I will say there were, you know, there are a few providers who are very hype based. But there are others. I think a lot of the narrative did focus on the kind of distinguishing of folks who can bring data to bear in some good way. your document management systems for instance where they are talking about and really hyping up yeah AI is great it does all these wonderful things for us but you know the reason you want to get us in there is like the quality of the data the quality of the structure we can put on a lot of people are kind of entranced by the idea of these like million token context windows but one a million tokens is not very much when you think about the scale of a discovery project or your own firm's document management.

28:47And two, my sense of the million token window is that after a couple hundred thousand, the models go, eh, we've seen enough. And so it's not really all that accurate. And, you know, like a lot of very clever folks were talking about the ways in which you have to use structure to the underlying data to allow these models to be used in a way that actually gets you any kind of real results. So there's a lot of folks who were pushing back against the AI hype, not so much pushing back, but saying like, you know, it doesn't do a lot of stuff, but here's what we can do to make it work. And, you know, I haven't written about it yet because it's sad because I've been meaning to write about this for the moment it dropped and then it dropped during legal week and I didn't get to it yet.

29:31But Brief Catch has a catch the hallucinations that people put in their briefs tool that they put out, which is super useful. But it speaks to the way in which there's a shift from pie in the sky stuff to starting to deal with the real on the ground problems that, you know, people are hallucinating all the time. You need to know quick whether they've done it or not. Especially because some judges are saying that you're responsible for not catching your opponent's hallucinations. So there's a real – you really do have to be able to catch this stuff. Yeah, and in that instance, there's also the value to – look, when a case is faked, that's one thing.