In a recently published opinion, Barber v Morawa, the Michigan Court of Appeals made clear that Michigan Courts will not tolerate the use of generative AI in preparation of legal briefs without thorough attorney review, and that the misuse of AI may result in sanctions.
This suit arose from a medal malpractice and negligence claim brought by the Plaintiff. At the conclusion of trial, the jury returned a verdict in the Defendant’s favor. The Plaintiff then moved for a new trial or evidentiary hearing. The trial court denied the motion, and Plaintiff appealed its decision. The Court of Appeals held that the trial court did not abuse its discretion in denying the Plaintiff’s request for a new trial or evidentiary hearing because Plaintiff’s motion relied upon facts outside the record, and Plaintiff failed to provide notarized affidavits substantiating any juror misconduct. However, the appeal also brought to the Court’s attention a more pressing issue: Plaintiff’s counsel’s severe misuse of AI.
On at least three separate occasions, at both the trial and Court of Appeals level, plaintiff’s counsel relied on nonexistent case law, mischaracterized real authority, and relied on criminal and constitutional authority unrelated to the civil medical malpractice issue presented. Despite the fact that Defendant pointed out these issues in several of its responsive briefs, Plaintiff’s counsel failed to acknowledge or correct the defects.
Just three weeks before oral argument was scheduled before the Court of Appeals, counsel filed a “Notice of Correction,” admitting that Plaintiff’s appeal brief included a fabricated case and unsupported legal assertions. Counsel stated that these errors were caused by “over-reliance on artificial intelligence research tools,” for which he had “since implemented verification protocols to prevent recurrence.” However, the Court of Appeals found that this apology was insufficient to cure the burden caused by Plaintiff counsel’s repeated misuse of AI. In fact, it was found that even Plaintiff’s “Notice of Correction” attributed language to cases that did not contain such language and, at oral argument, Plaintiff’s counsel admitted that the Notice was also prepared with the assistance of AI.
To determine the applicable consequences for the abuse of AI, the Court noted guidance from several jurisdictions and applied Michigan’s sanctioning rules. Ultimately, the Court concluded that counsel’s submissions violated MCR 1.109(E)(5) since, by signing and filing pleadings that relied on fabricated authority, mischaracterized real authority, and cited inapplicable doctrine, it was clear that counsel failed to conduct a reasonable inquiry to ensure the pleadings were warranted by existing case law. Under MCR 1.109(E)(6), sanctions are mandatory once such a violation is discovered and may include the reasonable expenses and attorney fees incurred because of the filing. The Court also held that actual and punitive damages, as well as other disciplinary actions, are authorized under MCR 7.216(C)(1)(b) because Plaintiff’s appellate brief violated MCR 1.109(E)(5) and “grossly disregarded the requirements of a fair presentation of the issues to the court.”
As such, the Court remanded the matter to the trial court to conduct an evidentiary hearing and determine the actual damages and expenses to Defendant, including reasonable attorney fees, incurred as a result of Plaintiff’s appeal, noting that the sanctions are to be paid by Plaintiff’s counsel personally. The Court also directed the Court Clerk to forward its opinion to the Attorney Grievance Commission for possible investigation.
