On February 13, 2024, the Missouri Court of Appeals, Eastern District, issued its opinion in the case captioned Kruse v. Karlen, No. ED111172. Karlen was a pro se litigant and the appellant and he was sanctioned for failing to file an appellate brief that complies with the rules. The appeal was dismissed. The brief had numerous deficiencies including, an inadequate statement of facts without citations to the record, no Points Relied On section and no Appendix. The brief also lacked a Table of Contents and a list of Authorities.
But all of that pales in comparison to the Court’s discussion of fake citations. “Particularly concerning to this Court is that Appellant submitted an Appellate Brief in which the overwhelming majority of the citations are not only inaccurate but entirely fictitious. Only two out of the twenty-four case citations in Appellant’s Brief are genuine. The two genuine citations are presented in a section entitled Summary of Argument without pin cites and do not stand for what Appellant purports.” Opinion pages 5-6. There were twenty two instances of fake citations in the brief. Some of the citations had real case names, but the asserted point of law the case stands for was entirely fake.
The Appellate offered an apology in his Reply Brief. “In his Reply Brief, Appellant apologized for submitting fictitious cases and explained that he hired an online “consultant” purporting to be an attorney licensed in California to prepare the Appellate Brief. Appellant indicated that the fee paid amounted to less than one percent of the cost of retaining an attorney. Appellant stated he did not know that the individual would use “artificial intelligence hallucinations” and denied any intention to mislead the Court or waste Respondent’s time researching fictitious precedent. Appellant’s apology notwithstanding, the deed had been done, and this Court must wrestle with the results.” Opinion page 8.
The court explained the obvious as follows: “We regret that Appellant has given us our first opportunity to consider the impact of fictitious cases being submitted to our Court, an issue which has gained national attention in the rising availability of generative A.I. “Citing nonexistent case law or misrepresenting the holdings of a case is making a false statement to a court[;] [i]t does not matter if [generative A.I.] told you so.” Maura R. Grossman, Paul W. Grimm, & Daniel G. Brown, Is Disclosure and Certification of the Use of Generative AI Really Necessary? 107 JUDICATURE 68, 75 (2023).” The Court dismissed the appeal as frivolous and awarded sanctions of $10,000.
When I began writing this blog, I did not consider the possibility that litigants would simply make up citations to support points of law they wished to argue. I have now covered three such cases in the last year. That is three too many.
Ed Clinton, Jr.
Legal Ethics Lawyer 