In the first of its kind, the Michigan Court of Appeals just issued Barber v. Morawa (Docket No. 374773), which is a medical malpractice case in which AI was used to generate legal arguments. The case background concerns a plaintiff who initiated a medical malpractice lawsuit arising out of a hip replacement surgery. The jury found that the defendant was not negligent. Plaintiff subsequently moved for a new trial or evidentiary hearing alleging that the verdict was tainted.

In making the argument, Plaintiff purportedly relied upon criminal case law and constitutional principles. More importantly,

plaintiff’s counsel relied on artificial intelligence without adequate verification, leading him to cite nonexistent cases and invoke real cases for propositions they do not support, even after defendant identified the defects.

The Defense Counsel identified these errors in their responsive briefing and requested sanctions. The trial court denied plaintiff’s motion.

After the court of appeals affirmed the trial court’s denial of a new trial or evidentiary hearing based on the merits of the case, it addressed its “significant concerns about plaintiff’s counsel’s repeated submission and unsupported legal authority.” In going through the previous filings during the life of the case, the Court acknowledged:

• • A fabricated case cited in a motion for protective order,
  • Two nonexistent cases cited in the motion for a new trial or evidentiary hearing,
  • A nonexistent case cited in the appellate briefing, and
  • Repeated citations for propositions that they do not support.

Moreover, when Plaintiff’s Counsel attempted to address the citation errors in a Notice of Correction, he still inaccurately cited to case law and used AI to even prepare that document! Citing to MCR 1.109(E)(5), the Court noted that the “sequence demonstrate[d] counsel’s repeated carelessness regarding his independent duty to verify the legal authorities submitted to the courts.” It held that “counsel’s submission of fabricated and unsupported authority violated the duty of reasonable inquiry required by MCR 1.109(E)(5).” Moreover, it noted that “[a]rtificial intelligence may be a useful tool for legal research and drafting, but the use of such technology does not alter an attorney’s professional obligations. Lawyers remain responsible for the filings they sign and submit.”

The Court remanded the matter back to the trial court to determine the actual damages and expenses incurred due to plaintiff attorney’s violations, which would be payable by Plaintiff’s Counsel. The Court also referred the opinion to the Attorney Grievance Commission for a possible investigation.

While the usage of AI is becoming more commonplace in society, the Michigan Court of Appeals is making it clear that it is not a substitute for an attorney’s obligations.