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Field Note: Five Tips for Fighting Pro Se Litigants Who Use AI · AI Tools for Practicing Lawyers

• 0:03
  SPEAKER_01: Welcome to AI Tools for Practicing Lawyers.
• 0:07
  SPEAKER_01: Practical, no-nonsense guidance to help attorneys put AI power to work in their practice right now.
• 0:14
  SPEAKER_00: I saw three AI and litigation stories this week that at first I thought were about three different things.
• 0:22
  SPEAKER_00: But the more I thought about them, the more I realized they may be telling us something very important about a problem practicing litigators are going to encounter more and more often.
• 0:36
  SPEAKER_00: And that's this.
• 0:37
  SPEAKER_00: How do you litigate against a pro se party who is using AI?
• 0:44
  SPEAKER_00: Because generative AI may have changed the economics of pro se litigation in a pretty fundamental way.
• 0:52
  SPEAKER_00: Person who doesn't have a lawyer can now have something that looks remarkably like an inexhaustible junior associate.
• 1:01
  SPEAKER_00: It doesn't get tired, doesn't charge by the hour, and perhaps most importantly, and most dangerously, it will happily draft another motion and another and another.
• 1:17
  SPEAKER_00: There's a remarkable lawsuit pending in federal court in Chicago involving Nippon Life Insurance Company of America and OpenAI.
• 1:26
  SPEAKER_00: According to Nippon's allegations, a woman named Graciella Della Torre had a dispute over long-term disability benefits, and she had a lawyer.
• 1:36
  SPEAKER_00: Her case was settled and then dismissed with prejudice.
• 1:41
  SPEAKER_00: Later, she became dissatisfied with what her lawyer had told her and really the entire engagement itself.
• 1:50
  SPEAKER_00: So she uploaded an email from her lawyer to ChatGPT and asked about it.
• 1:55
  SPEAKER_00: According to Nippon's complaint, ChatGPT reinforced her concerns about her lawyer's advice.
• 2:02
  SPEAKER_00: And look, anybody who's using ChatGPT knows that it tends to echo back to you in much more sophisticated syntax what you told it.
• 2:13
  SPEAKER_00: So she fired the lawyer and began using ChatGPT to generate filings attempting to reopen the case.
• 2:21
  SPEAKER_00: Now, the federal judge rejected that effort, but that didn't end the litigation.
• 2:26
  SPEAKER_00: She filed another lawsuit and continued filing motions and notices.
• 2:30
  SPEAKER_00: And Nippon claims that dealing with all of this ultimately cost it$300,000.
• 2:40
  SPEAKER_00: Nippon has now sued OpenAI, arguing, among some other things, that ChatGPT was effectively engaged in the unauthorized practice of law.
• 2:52
  SPEAKER_00: Of course, OpenAI defends by saying the lawsuit has no merit.
• 2:57
  SPEAKER_00: I don't know who's going to win this lawsuit.
• 2:59
  SPEAKER_00: And that's not really the part of the story that interests me.
• 3:02
  SPEAKER_00: What interests me is the$300,000 that Nippon spends battling against this pro se litigant.
• 3:11
  SPEAKER_00: And I'm going to tell you something right now.
• 3:13
  SPEAKER_00: Everybody in the law, everybody in the bar is going to be clutching their pearls, saying that this is a horrible thing.
• 3:20
  SPEAKER_00: And looking at it objectively, I don't think it's such a horrible thing as a human involved in the world.
• 3:30
  SPEAKER_00: Because huge corporations have really denigrated their interaction with consumers.
• 3:40
  SPEAKER_00: And if consumers get fed up and start fighting back, I don't know that that's such a terrible thing.
• 3:47
  SPEAKER_00: But whether or not it's a terrible thing, it's happening in the world.
• 3:52
  SPEAKER_00: And we in the bar need to figure out how to address it.
• 3:57
  SPEAKER_00: Because imagine you're the lawyer representing Nippon.
• 4:00
  SPEAKER_00: Your client's case was settled.
• 4:02
  SPEAKER_00: It was dismissed with prejudice.
• 4:04
  SPEAKER_00: Normally you think, that's it, we're done.
• 4:07
  SPEAKER_00: Except now the former plaintiff has access to a machine that can generate legal arguments, motions, briefs, and new theories, essentially without any real cost.
• 4:21
  SPEAKER_00: And every time you respond, she can ask the machine for another reply.
• 4:27
  SPEAKER_00: And every time you file something, she can upload it to the machine and ask, how do I fight this?
• 4:34
  SPEAKER_00: That creates an asymmetry lawyers haven't really had to deal with before.
• 4:38
  SPEAKER_00: The pro se litigant used to have a natural limiting factor: time, knowledge.
• 4:44
  SPEAKER_00: You know, pro se litigants used to have to beg lawyer friends to help them with their cases.
• 4:50
  SPEAKER_00: Not anymore.
• 4:51
  SPEAKER_00: And that means lawyers representing the other side may need a different strategy.
• 4:57
  SPEAKER_00: So I've gathered what I think might be some useful tips for lawyers dealing with pro sey litigants.
• 5:06
  SPEAKER_00: And this is going to accelerate.
• 5:10
  SPEAKER_00: More and more people are going to take on bigger corporations without counsel.
• 5:19
  SPEAKER_00: So I think the first lesson from the Neppon case is pretty straightforward.
• 5:24
  SPEAKER_00: Don't assume you have to litigate every AI-generated argument as though an experienced lawyer deliberately selected it.
• 5:33
  SPEAKER_00: AI is extraordinarily good at generating more arguments.
• 5:38
  SPEAKER_00: If you respond to every argument with 10 pages, well, that litigant is going to paste those 10 pages into an AI tool and generate 20 pages in response.
• 5:49
  SPEAKER_00: Then you respond to the 20, and pretty soon somebody has spent$300,000.
• 5:56
  SPEAKER_00: I think the better strategy may be to force the litigation back onto procedure, the actual issues before the court.
• 6:06
  SPEAKER_00: What requires a response?
• 6:08
  SPEAKER_00: What doesn't?
• 6:10
  SPEAKER_00: Can the issues be narrowed?
• 6:11
  SPEAKER_00: Are page limits appropriate?
• 6:13
  SPEAKER_00: Would a pre-motion conference help?
• 6:16
  SPEAKER_00: Has the litigant begun repeating arguments the court has already rejected?
• 6:21
  SPEAKER_00: Is it time to ask the court for an order governing future filings?
• 6:26
  SPEAKER_00: Sort of like a pretrial discovery type order, but just with a little bit tighter guidelines and a little bit tighter allowances for litigants to file documents with the court.
• 6:40
  SPEAKER_00: In other words, don't try to beat the AI at its own game by producing more words.
• 6:46
  SPEAKER_00: Make the battlefield smaller.
• 6:49
  SPEAKER_00: All right.
• 6:50
  SPEAKER_00: Number two, verify everything.
• 6:55
  SPEAKER_00: Here's another practical problem.
• 6:57
  SPEAKER_00: Don't expect handwritten screeds being filed with the clerk.
• 7:02
  SPEAKER_00: An AI-assisted pro se filing is gonna look pretty good.
• 7:07
  SPEAKER_00: That doesn't mean any of it's right.
• 7:09
  SPEAKER_00: We've already seen plenty of cases involving hallucinated authorities.
• 7:14
  SPEAKER_00: So when you're on the receiving end of one of these filings, don't assume that just because the document looks good, that the case that's cited on page 17 actually says what that pro se litigant says it says.
• 7:29
  SPEAKER_00: Check it.
• 7:30
  SPEAKER_00: Don't just check whether the case exists.
• 7:32
  SPEAKER_00: Check whether the quotation exists.
• 7:34
  SPEAKER_00: Check whether the case actually stands for the proposition being asserted.
• 7:40
  SPEAKER_00: And check whether the court, jurisdiction, and procedural posture make any sense.
• 7:46
  SPEAKER_00: And remember, there are at least 21 ways that AI can hallucinate in a legal brief.
• 7:53
  SPEAKER_00: I talked about those in an earlier field note that I'm going to refer to down in the show notes.
• 8:00
  SPEAKER_00: But here's the other side of that rule.
• 8:03
  SPEAKER_00: Don't assume the argument is wrong merely because AI helped to produce it.
• 8:08
  SPEAKER_00: AI can help a pro se litigant find a legitimate argument.
• 8:12
  SPEAKER_00: Your job isn't to prove that the person used ChatGPT.
• 8:16
  SPEAKER_00: Your job is to separate the potentially meritorious argument from the enormous amount of material AI may have generated around it.
• 8:27
  SPEAKER_00: Rule number three: create a record of the pattern.
• 8:31
  SPEAKER_00: If the filings become repetitive, frivolous, or abusive, don't just keep responding forever.
• 8:39
  SPEAKER_00: At some point, the pattern itself may become more important.
• 8:44
  SPEAKER_00: And that's where another case from this week gets really interesting.
• 8:48
  SPEAKER_00: A self-represented plaintiff named Matthew Elliott is suing the New York Bariatric Group in Connecticut State Court.
• 8:56
  SPEAKER_00: Judge Walter Spader discovered something unusual in Elliot's filings.
• 9:02
  SPEAKER_00: There were strange blank spaces on the page.
• 9:06
  SPEAKER_00: When the court looked more closely, it found text printed in tiny white type on a white background.
• 9:14
  SPEAKER_00: This was reported in Ars Technica.
• 9:16
  SPEAKER_00: A human reader couldn't see it, but software could.
• 9:20
  SPEAKER_00: The hidden text contained instructions directed to any AI system that might analyze the filings.
• 9:28
  SPEAKER_00: I mean, frankly, I looked at this text, I couldn't understand it.
• 9:32
  SPEAKER_00: I didn't think it actually accomplished what that pro se litigant really intended for it to accomplish, but it was in there.
• 9:40
  SPEAKER_00: And Judge Spader concluded that Elliot was attempting something called prompt injection, essentially trying to give hidden instructions to an AI system so that the system would produce an answer favorable to Elliot.
• 9:56
  SPEAKER_00: There was just one problem, which is that unlike the UAE, which has taken on nationwide artificial intelligence procedures in all of their courtrooms, the Connecticut judicial branch doesn't use AI to review or decide filings.
• 10:17
  SPEAKER_00: So Elliot was trying to manipulate an AI system that wasn't even there.
• 10:23
  SPEAKER_00: He told Reuters that he was trying to audit the court's processes.
• 10:28
  SPEAKER_00: The judge was not into this.
• 10:31
  SPEAKER_00: And after additional hidden material appeared in subsequent filings, some of which was really ludicrous, the court sanctioned Elliot by taking away his ability to file electronically.
• 10:44
  SPEAKER_00: Future filings have to be submitted on paper, which might be a pretty effective strategy for dealing with AI.
• 10:52
  SPEAKER_00: But here's my favorite part of the story.
• 10:54
  SPEAKER_00: Judge Spader's not anti-AI.
• 10:57
  SPEAKER_00: Most judges these days really aren't.
• 10:59
  SPEAKER_00: In fact, he disclosed that he used AI himself to prepare the decision sanctioning Elliott.
• 11:07
  SPEAKER_00: Wow, how meta can you get?
• 11:09
  SPEAKER_00: His objection wasn't that somebody used AI, his objection was to misconduct involving AI.
• 11:16
  SPEAKER_00: And that's an important distinction.
• 11:20
  SPEAKER_00: And that brings me to tip number four.
• 11:22
  SPEAKER_00: Don't assume you get discovery into the Chat GPT conversations.
• 11:27
  SPEAKER_00: Now we get to something my former podcast guest, Matt Lafferman, has been writing about.
• 11:33
  SPEAKER_00: Matt is a partner at Denton's, co-head of the firm's Legal AI Lab, and someone I've had on this podcast to discuss AI, privilege, and work products.
• 11:43
  SPEAKER_00: He and Rick Shearer recently wrote about the developing case law concerning AI interactions and discovery.
• 11:51
  SPEAKER_00: And there's a temptation, if you're litigating against an AI-assisted pro se party, to think, great, I want those ChatGPT prompts.
• 12:02
  SPEAKER_00: Well, maybe, but don't assume you're entitled to them.
• 12:06
  SPEAKER_00: In Warner v.
• 12:07
  SPEAKER_00: Gilbarco, a pro se plaintiff, used a paid ChatGPT account to draft filings and analyze materials related to her case.
• 12:16
  SPEAKER_00: The defendant sought broad discovery concerning her use of ChatGPT.
• 12:22
  SPEAKER_00: The court said no.
• 12:25
  SPEAKER_00: It treated her inputs as reflecting her internal analysis and mental impressions and held that the material was protected by the work product doctrine.
• 12:36
  SPEAKER_00: The court made an observation that I think is going to become increasingly important.
• 12:42
  SPEAKER_00: Generative AI programs are tools, not persons.
• 12:47
  SPEAKER_00: So the fact that a litigant used an AI tool doesn't automatically turn the litigant's thought process into discoverable material.
• 12:56
  SPEAKER_00: And by the way, if you're going to find that an AI chatbot, like OpenAI's ChatGPT, or Claude or Gemini, are tools, not persons, then that should give you a lot more comfort in being able to record and have AI transcribe and summarize your conversations with clients.
• 13:19
  SPEAKER_00: You're just submitting that information into a tool, not a third party.
• 13:25
  SPEAKER_00: Now, in Tremblay v.
• 13:27
  SPEAKER_00: OpenAI, lawyers used ChatGPT in investigating their case, and the opposing party sought the prompts.
• 13:34
  SPEAKER_00: They're always going to seek the prompts.
• 13:36
  SPEAKER_00: The court concluded that the prompts were opinion work products because the questions crafted by counsel themselves revealed counsel's mental impressions about how to investigate the case.
• 13:49
  SPEAKER_00: So we need to be careful here.
• 13:51
  SPEAKER_00: AI can create evidence.
• 13:53
  SPEAKER_00: AI can create discoverable records.
• 13:56
  SPEAKER_00: AI can be used to create protected work products.
• 14:00
  SPEAKER_00: So there's no rule that says, well, they use Chat GPT, therefore I get the chance.
• 14:06
  SPEAKER_00: Rule number five, AI use isn't the misconduct.
• 14:10
  SPEAKER_00: And that brings me to the third thing I saw this week.
• 14:13
  SPEAKER_00: Judge Sarah Smith of the Third Judicial Circuit in Illinois issued a remarkably sensible statement explaining her own use of AI.
• 14:23
  SPEAKER_00: Judge Smith says she may use AI for things like outlining, editing, formatting, grammar, organization, and summarizing identified materials.
• 14:35
  SPEAKER_00: My guess is with that laundry list, she probably used AI to draft the order.
• 14:41
  SPEAKER_00: But she draws a clear line.
• 14:44
  SPEAKER_00: AI does not exercise judicial judgment.
• 14:47
  SPEAKER_00: It doesn't weigh evidence, it doesn't assess credibility, it doesn't make factual findings, doesn't interpret the law, and it doesn't decide cases.
• 14:57
  SPEAKER_00: It's the judge's job to do those things.
• 15:01
  SPEAKER_00: She also says that AI-generated legal authorities, quotations, and citations must be independently reviewed and verified.
• 15:13
  SPEAKER_00: I think that's important because it demonstrates something we should keep in mind when we're dealing with AI-assisted pro-sale litigants.
• 15:21
  SPEAKER_00: Using AI isn't misconduct.
• 15:23
  SPEAKER_00: Lawyers are using AI, judges are using AI, I obviously use AI, and increasingly sophisticated pro se litigants are going to use AI too.
• 15:37
  SPEAKER_00: So the problem isn't the tool.
• 15:39
  SPEAKER_00: The question is what the person does with it.
• 15:44
  SPEAKER_00: And that may be the bigger lesson.
• 15:46
  SPEAKER_00: For the last few years, lawyers have spent an enormous amount of time asking: is AI going to replace lawyers?
• 15:53
  SPEAKER_00: Maybe that's not the most immediate litigation problem.
• 15:57
  SPEAKER_00: AI doesn't have to replace the lawyer on the other side.
• 16:00
  SPEAKER_00: It can do something much simpler.
• 16:03
  SPEAKER_00: It can give the person who doesn't have a lawyer the ability to litigate as though they have an inexhaustible one.
• 16:11
  SPEAKER_00: Not necessarily a good lawyer, and not necessarily a lawyer who exercises professional judgment, but a lawyer who never gets tired, never worries about the bill, and is always willing to draft one more motion.
• 16:27
  SPEAKER_00: If you're representing the party on the other side, the answer probably isn't to produce more paper than the machine can produce because you can't.
• 16:37
  SPEAKER_00: The answer is better litigation management.
• 16:40
  SPEAKER_00: Narrow the issues, use procedure, verify the authorities, identify patterns of abusive filings early, get the court involved when necessary, take legitimate arguments seriously, and don't confuse AI use with AI misconduct.
• 16:59
  SPEAKER_00: Because the next generation of pro se litigants may not look anything like the last one.
• 17:04
  SPEAKER_00: And if an insurance company really can spend$300,000 litigating over a case that had already been settled and dismissed with prejudice, that's probably something practicing lawyers should start thinking about right now.
• 17:21
  SPEAKER_00: My name is Ron Drescher, and this has been a field note in AI Tools for Practicing Lawyers.
• 17:29
  SPEAKER_00: See you next time.
• 17:32
  SPEAKER_01: That's it for today's episode of AI Tools for Practicing Lawyers.
• 17:37
  SPEAKER_01: Thanks for listening.
• 17:38
  SPEAKER_01: We'll see you next time.