I'm going to lead with a hot take today.

I don't think we're in a world where AI is creating new quality problems in legal so much as it is exposing flaws in our quality assurance practices that have always been there.

What passes for QA in most legal settings is often just a subjective standard inconsistently applied.

Even in an adversarial proceeding, where lawyers on the other side of a problematic filing have a huge incentive to expose their opposing counsel's flaws, recent cases have shown that the errors can easily go undetected.

But rather than me talking about it today, I'm giving you about 20 minutes from a recent appellate argument that illustrates that point better than I ever could.

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Let's go.

Hey, everyone.

Welcome back.

So I'm doing something a little different today.

I'm going to play you about 20 minutes of actual oral argument from the New York court, Second Appellate Division.

This is the intermediate appellate court of New York State.

The case is Landberg vs City of New York.

It's a routine sidewalk trip and fall, but the merits of the case aren't too important for our purposes today.

What matters is what happens in that room.

The first lawyer you'll hear is arguing for the plaintiff appellant.

And then you'll hear from lawyers representing both the property owner and the City of New York as defendant appellees, three attorneys, an appellate bench, arguments that have been briefed, read, prepared for about as normal a setup as you get in appellate practice, but it does not go the way anyone expected.

I'll let you decide what you think as you listen in, and I'll be back at the end to offer my thoughts.

But there is another issue that I would like to move on to, and I'm going to ask you to address it, and that is, in preparing for this oral argument and reviewing the brief of appellant, it came to the attention of the court that the brief submitted by plaintiff cites to at least three cases that appear to be fictitious.

Hanser vs. Winter, LAC v. LAC, and Zhang Fuji vs. City of New York.

None of these cases nor the quoted language appears to exist.

And with respect to the last case I mentioned, the last purported case I mentioned, the Zhang case.

The plaintiff's brief purports to quote from a case and incorrectly attribute certain language to the court of appeals, for which case the Xiang.

And also.

And I just want to tell you about some of my other concerns, and then I'm going to ask you to respond.

Sure.

There are 10 other cases cited in plaintiff's brief, some of which appear to misrepresent the law to some extent.

So these are concerns that I have as a member of this court, and I'd like you to address this issue.

So how do you respond?

Plaintiff cited a plethora of cases.

Those specific sites that your honor is referring to wasn't brought up in opposition, so I wasn't specifically prepared to speak to them.

I'm not sure what the.

Well, counsel, before you go any further, let me point out to you that Rule 3.3 a of the Rules of professional conduct indicates that a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.

It doesn't depend on whether your adversary points out to you a possible fictitious case.

It is the responsibility of the attorney submitting the brief to the court.

Now, I just advised you that at least three cases are apparently totally fictitious.

They don't exist.

The purported citations don't exist for these cases.

I was only pointing out that the opposition.

So how do you respond?

You have submitted this to the court.

If there's any citations that are incorrect, my deepest apologies.

Where did you get them from?

I don't know what these cases were specifically.

Do you want to take 10 minutes and go look them up?

Should we give you 15 minutes to go and you can go find them?

You wrote this, right?

I wrote this.

You wrote this?

Yes.

So if you wrote this.

I wrote this.

You're responsible for it?

I'm responsible for this.

And the reply.

Okay.

And every case you used, you found in a book.

Westlaw, Alexis.

Is that correct?

Or cited from a previous case?

Yes.

Okay, you want us to give you 15 minutes so you can tell us where you got these?

I don't.

Counsel, you're an officer of the court.

Sure.

Okay, you tell me you found these in a book or what, you found these in Lexis, Westlaw, or some other.

Or in a physical book?

Is that where you're saying you got these cases?

Or in Westlaw or in a previous.

I mean, I may have used.

Just so you know, because I don't want you to dig a bigger hole here.

Sure, sure.

You're citing principles that don't exist, so,.

I mean, I'm just.

I'M Let me tell you something.

Sure.

Okay.

We saw this last week.

I was hopeful that in preparation for today that you were going to read this and say, oops, we made a mistake, Judge.

Happens sometimes.

People put aside it's incorrect, scrivener errors, etc.

That's what I was hoping for.

Didn't get that.

Should we give you some time right now to go look these cases up?

I think it's going to take me more than 15 minutes.

I just.

I just want to explain.

I was very focused on the.

The case law that I really felt was most relevant towards the heart of the issue.

I understand.

You understand?

What's our concern?

That there's sites in the case that don't exist.

Sites in my brief that don't exist.

Would you agree it's a legitimate concern?

That's absolutely a legitimate concern.

In my professional career, I've seen a lot of things.

We all have.

I don't want to speak for my colleagues, but I'm confident.

I'm sure you have too.

I think every lawyer here has seen it.

Times when you put a case into Lexus or Westlaw or in the old days, we had to open up the book and there's a Scribner's error, right?

And you're like, okay, it wasn't page 344.

It was page 644.

But we can find the case because you can see where the error was made.

Because you know the case exists, you're able to find.

It's a pain in the neck.

Sure.

It happens.

We've all been.

I'm sure you've been on the other side of that, where a lawyer's done that to you.

Put it in a brief or motion papers.

It's not a big deal.

It's annoying.

But we get past it.

This is something different.

This is a wholesale creation of cases.

And I'm concerned that you're citing stuff.

You're citing cases that don't exist.

That's a big concern.

This is not me pulling one case out of a string site.

Okay, I understand.

You may not.

You should be.

You might not have read every single case in a string site.

You're suggesting the court of appeals said things they didn't say.

Okay, if, if I.

Again, I mean, I would have to review my papers.

I think with you, I think it was.

That was an appellate decision that actually wasn't a court of appeals decision that I was mistaken about.

Again, like I said, I just.

I was really focused on the cases.

The reason why I don't know.

Every single case is.

I was really focused on the cases that I.

Most of my brief was relying on, which was.

But, Council, some of the fabricated quotations used to support your primary argument are contrary to actual law.

Actually, contrary to what the law states on your primary arguments.

These are not minor side issues.

These are issues that you offer that you put before this court to support your primary arguments.

It is concerning, and we're bringing this to your attention so that you may explain, if possible, how this occurred.

I mean, the only thing I could.

I could think of is just me over relying on other briefs and maybe string sites for general case law.

But in terms of.

Specifically about the issue of bricks.

Interrupt.

You.

You wrote this, right?

I wrote this.

You're responsible for this?

I'm responsible for it?

Yes, your honor.

You're responsible.

You're not gonna tell me some associate at the firm stuck something in there that you didn't see?

No.

You wrote this?

Yes.

Anything else you want to add?

I guess.

No.

Nothing further.

Thank you.

Your Honors.

Thank you.

Good morning, you, Honors, and may it please the court.

Ross Frischer for the owner, respondent here.

The motion.

Court correctly awarded summary judgment.

Can I ask you a question before we get to anything else?

Yes.

You saw that these cases were.

When you read your adversary's brief, do you actually check the cases?

Yes, your Honor.

How come you didn't bring it to our attention?

So with this particular scenario, I was more focused on the specifics concerning he was raising.

He referenced Court of appeal standard.

That doesn't exist.

He was using it as a component of his argument.

And you didn't think you should bring it to our attention, so.

Your honor, I actually.

I didn't notice in particular that the principle of law that he was citing was incorrect.

Over here, it says in one of the cases that Your honor mentioned that 7, 2, 10 should be construed liberally to effectuate its remedial purpose.

That's correct.

Is there another case that I should address?

Because with that principle of law, that's.

I'm gonna give you a chance to make your argument.

I'm sorry?

I'm gonna give you every opportunity to make your argument, but I'm befuddled.

I honestly am.

I'm absolutely.

And I'm not here to.

Lawyers make mistakes.

It's not an easy profession.

I don't wanna sit here beating up on lawyers, but we rely on the bar so much in what we do.

So the first thing that I did.

I don't wanna speak for my colleagues but after seeing what he wrote, when I went to your papers, I expected to see something referencing not just.

It wasn't one case, counsel.

It was several cases.

And you didn't see fit to bring it to our attention either.

It's just striking to me.

I'll let you make your argument.

Yeah.

So.

Your Honor, I apologize to the court.

I will do further due diligence going forward from this point on.

I hope so.

You should apologize to your client, not to me.

Yes, I apologize for that.

And I will, going forward, check every single case, even if it stands for general principles of law, like the.

Construed liberally to officiate, remedial purpose and things like that.

I will bring them to the court's attention.

Counsel, the misrepresentations here are of such a degree that they could not merely reflect a difference of opinion.

As an appellate court attorney, you would have to.

If you were doing the work and reading the briefs and responding to the briefs, you would have to notice that something in the wording of the name brief for the appellant was wrong.

If not many things being wrong, it's concerning because we are all officers of the court.

And there is a responsibility that you also have to notify the court to do the work, notify the court when these types of misrepresentations and fictitious cases and fictitious citations and misrepresenting the holding of a court of appeals case.

And I could go on and on, but if you read the brief and looked at the cases, you would have realized it was your responsibility also to alert the court.

How do you respond?

Your Honor, what I can say is we write these briefs normally to be very, very focused on the issues here.

And that is a big issue.

And going forward, I will make sure to check every single case that is cited, even court of appeals cases.

But when I write the reply brief, I usually tailor it to be very specific to the dispositive issue here.

The propositions that were cited or misattributed to certain court of appeals cases did not immediately raise a red flag as I was writing my brief.

What raised red flags was the application of the law as it applied to appellate precedent in this department, which concerns what a tree well is.

And, you know, in that search, I relied on one case every city of New York that is, I think, this positive here.

That shows a picture of a brick that is nearly identical to the brick at issue in this case.

And that's really the dispositive issue.

As far as I see here, the court of Appeals on page 14 of the appellant's brief, 7, 2, 10.

Should be construed liberally to effectuate its remedial purpose.

I think that's a generally accepted principle of law.

And quite frankly, that's why I missed it.

So, again, my apologies to your Honors.

I will be more diligent in the future.

If there's anything else on that point that I can answer, I'd be happy to.

But again, I will be more diligent going forward.

I hope your honors can accept that from me.

But in terms of the actual this positive issue here, which is, again, the cobblestones that are surrounding the tree.

Well, again, page 78 of the Record shows a picture of where the plaintiff identified at her deposition exactly where she fell.

And she circled the brick closest to the tree, clearly within a flag of sidewalk that was taken out.

And there's dirt and there's cobblestones.

And here, the city admitted to installing that on those two points alone.

I believe that that's enough to affirm the lower court's decision.

And unless there are any further questions from the court, I'll rely on my brief.

Thank you for your time.

Thank you.

Good morning, you, Honors.

May it please the court.

Elizabeth Friedman.

I'm appearing for respondent, City of New York.

Your Honor, in Appellant's brief, Point 3.3 addresses the issue of the prior written notice.

And that was the point of the brief that I.

That we and my office and I focused on.

But, of course, you read the entire brief of the appellant, Is that correct?

Yes, you, Honor.

So how do you explain your failure to bring to the attention of this court that a brief was filed with this court by appellant's counsel with apparent fabrications and misrepresentations?

Your Honor, the point of the brief dealing with the owner's liability.

We didn't take a position on the owner's liability.

We didn't.

And I certainly read the briefs.

I certainly read all of the briefs here, but I certainly didn't focus on it because it was not our issue.

And I do apologize to the court for not catching that.

But I tended to focus more on the issue of prior written notice.

In that point of the brief, the plaintiff cited two cases.

Neither one of them raised red flags.

Those two cases are porosnic, where it says that an exception exists, where the municipality affirmatively created the defective condition that seemed to be accurate.

That didn't raise any red flags.

And the only other case they cited in that point is Rogers versus City of New York, stating that a two year Search is sufficient and can be sufficient.

In our brief, I tried to state the law correctly.

Counsel, I suggests that at some point in the very near future, you return to your review of Rogers v. City of New York.

Because I have some concerns that that is a case that appears as it appears in the appellant's brief.

It appears to misrepresent the law to some extent.

Your Honor.

So in that case.

So I would tread very lightly in discussing with this court that you feel that the reference in appellant's brief to Rogers v. City of New York was appropriate.

Well, I don't agree with that.

Okay.

I apologize, you, Honor.

It seemed the part I was reading, it held that a two year search can be sufficient.

And I basically cited many cases in our brief that basically stated that a two year search is sufficient.

So I tried to state the principle of law here accurately.

And I basically felt that it was just simply a statement of the law about a two year search.

And I did not delve into that particular case to see what the holding was since it didn't seem that the plaintiff was relying on that, other than to state that a two year search can be adequate.

But that there basically stating that held that a two year search can be sufficient then goes on to say that holding is not a blanket rule applicable in all circumstances.

So I felt that was the opinion of counsel and not the holding of the court in that case.

But in our brief, we did cite cases that do unequivocally from this court unequivocally state that a two year search for records is sufficient and that here the city demonstrated the lack of prior written notice and that the plaintiff in opposition did not create an issue of fact as to whether or not the city affirmatively created the condition through an affirmative act of negligence.

The undisputed evidence from the building superintendent was that the bricks were even when they were installed and that they became uneven over time.

That is certainly not affirmative negligence here and again.

Your Honor, I apologize.

I tried to state the law accurately in our brief.

And I apologize for not looking at the entire panoply of cases cited in the brief since that was not the focus of our particular issue in this case.

And we do feel that summary judgment was correctly granted as.

And dismissing the case as against the complaint is against the City of New York for the reasons that the court, the Supreme Court, stated in its decision.

And unless the court has any further questions, we rest on our brief.

Thank you.

Your Honors, thank you.

Well, don't go anywhere yet.

Have a seat.

I just want to say this to you all, this is a very distressing situation for the court.

I know this is an outlier.

We're very fortunate, my colleagues and I.

We have the privilege of working with what I think is one of the best benches in the state.

Bars in the state, pardon me, the appellate bar here in the city of New York and its surrounding suburbs.

We see excellent work.

For me personally, it's been the highlight of my career to have the opportunity to work with such outstanding judges and to have the opportunity to work with such outstanding lawyers.

But part of this profession, a big component of it, is that a lot of them are trust and mistakes are made.

We make mistakes as judges.

We've made mistakes.

I don't want to speak for my colleagues, but I dare say that we've all made mistakes as practitioners and we work very hard when there are mistakes to try to give the benefit of the doubt to those lawyers who practice before us.

We know how difficult your respective jobs are.

And in reviewing this, I know my colleagues and I have tried to give every benefit of the doubt to the lawyers before.

But the work, the lawyering that was done here, at least as far as debriefs and specifically the promulgating of force false cases that don't exist, quoting quotes that have no support in the law and purport to quote cases that don't exist is well below the standard we expect from the Bar.

I can just tell you, unless, again, maybe there's an explanation and maybe you'll have one for us at some point, and I hope that there is one.

I really do.

Because it is striking and concerning, disappointing and saddening to think that members of the Bar would forward cases to a court that don't exist, and to think that the lawyers on the other side of that didn't read it for whatever reason, didn't check it.

It just seems to fall well below the standard that we've all become accustomed to from members of the bar in the second department.

Have a nice day, everybody.

And I just want to apologize to.

The court, and you'll have an opportunity to apologize in a different way.

Why don't you do your research and find out how that happened, though?

Okay?

We are going to consider, just so you know, we're going to consider whether or not in order to show clause for sanctions should be handled.

You'll have enough.

And if we do decide to have one, if we decide to issue one, you'll have an opportunity to explain why we shouldn't do that.

Okay.

Have a nice day.

Okay.

So here's what I take from that.

First off, nobody mentioned AI.

And as I'll get to in a moment, I actually think that's kind of the whole point.

But note how incredulous the judges were that nobody caught the errors.

Obviously, and rightfully, they focused the bulk of their ire on the lawyer who filed the problematic brief.

But they are genuinely flabbergasted that neither of the opposing counsel had even the barest whiff that anything was wrong.

Why not?

As they both said, they were focused on their own arguments, not the details of their opponents.

So are they all just terrible lawyers?

I'm not sure.

It's possible.

But I've said before, I avoid attributing to incompetence that which can be adequately explained by overwhelm.

I've seen too many of these cases lately to believe that everyone who makes a bad filing is a bad lawyer.

So let me give you two main takeaways.

First, this sort of problem is the foreseeable result of an overloaded law practice.

When lawyers and their teams get overwhelmed, they turn to shortcuts, and shortcuts breed quality problems.

Like I said, we don't know for sure that the particular shortcut here was AI related, but it doesn't really matter.

Shortcuts lead to unpredictable quality, full stop.

Second, these problems are also the foreseeable result of poorly defined quality assurance practices.

And I think there's a difference between quality review and quality assurance.

Quality review is something an individual does.

It's subject to all of the variability and subjectivity that comes with being human.

Quality assurance is something a system guarantees, explicit standards and checkpoints that hold regardless of who the reviewer is.

I often complain that the typical lawyer's version of a quality assurance standard is I know it when I see it.

But the problem is that AI produces work that looks right even when it isn't.

That's a dangerous combination.

I think the answer is to stop relying on individual vigilance and build quality assurance into your actual workflow so that the system catches the errors that a busy human brain is likely to miss.

Okay, a quick word about my software tool, Greenline, before I let you go.

What you heard in that courtroom is a quality failure that started well upstream of the oral argument, even before the brief was filed.

Now, obviously, at some point in the workflow, there should have been an explicit step to verify every citation, every case, every quotation, both in the brief you prepare and in your opponents.

And of course, you should take that step not because you assume the work is wrong.

But because you have a standard, that standard is part of the process.

You just do it every time because it's what catches the problems, and that's something that Greenline makes real.

When you build your workflow in Greenline, you're not just automating tasks, you are creating a definition of done, a powerful form of quality standard at each step in your workflow, and it serves as a control gate that doesn't let work proceed.

Until that standard is met, or if quality does get missed, you'll have an audit trail that helps show exactly why.

Because a verification step isn't something that happens when someone gets around to it, it should be a required step, visible to everyone involved in the matter.

At the end of the day, getting things right is an essential part of getting them done.

If you want to talk through what quality assurance can look like in your practice, don't hesitate to reach out to me at John granteenline Legal and I'd be happy to give you some pointers.

And if you'd like to see how Greenline can help you take those standards and embed them in your actual workflows, head on over to Greenline Legal and look for that book a demo button.

Alright, that's it for today.

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Thanks for listening and I will catch you again next week.