Free Speech Hypocrisy, Hot Bench Troubles, And ChatGPT Legal Research

Episode Notes

Transcript

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Joe Patrice: Welcome to another edition of Thinking Like A Lawyer.

Chris Williams: Hello.

Joe Patrice: Oh there we go. I’m Joe Patrice from Above The Law. That is Chris Williams from Above The Law also doing the patented Kathryn interruption. Kathryn’s of course not here although we’re very happy that she pinged it last week. Meanwhile, yeah, we’re here as always to discuss the big new stories on Above The Law’s pages of the week. But first, because we want to make it seem like we have personalities, we begin as always with a little bit of small talk.

All right, what’s up? How was your trip? Well, you weren’t here last week so how was that?

Chris Williams: Yeah. Well nothing says a personality like bad news so I don’t know. The last I was on this time-honored tradition of a podcast, I was, I said that I was slated to go to India. That did not happen. I don’t know who I pissed off or why. So they greenlit my partner’s visa but not mine and maybe because I have good taste in the people I decide to date, they decided to not go to an entire day leave for country –. But yeah, that sucked. So instead we just went to Thailand, mostly stayed in the hotel because for me, it was a work week. We’ll talk about the work week during the podcast but it was nice. It was a chance we got the house and it’s some fucking hate bureaucracy, man. I would have been able to get a multi-month visa but because of COVID, which nobody still like acknowledges or act like it exists, they’ve moved it’s just being like 30 day, they got to leave the country and come back so the last couple of trips that has been shredded up visa runs.

Joe Patrice: Oh, okay.

Chris Williams: I would have much rather use that money for pizza.

Joe Patrice: Well, fair enough. So sorry that didn’t work out. On our end, I’ve been doing some planting trying basically to — it’s not even planting pretty stuff, it’s planting anything that can choke out weeds. You know what I mean? This is all stuff that two decades living in the city I didn’t really think about but now, I have to.

Chris Williams: Speaking of, if you decide for some reason, “Oh my name is Joe Patrice” I want to plant mint. Do not plant that shit in an open plot because it takes over. It’s like the NRA’s interpretation of the Second Amendment like once it gets old, it’s over.

Joe Patrice: Well, on that note, one of the things that I’m looking to plant is time which also does the same thing. But apparently, creeping time is known for that too. It takes over but it takes over and chokes out all the weeds so you’re taking your pick. Anyway. Oh well. Yeah, so I think that’s a good amount of small talk, right? Did we do a good job? I think so, yeah. All right, so let’s hit the horn.

All right, let’s talk about big legal stories. The biggest story that we have going on at the moment carrying over from the last week or so, there was a — graduation time is here. Congratulations to all the law school graduates out there for all your accomplishments. That also means that law school commencements were happening and one in particular happened at CUNY Law School that got a little more coverage than it usually does. I think it’s a fair way to put it, right?

Chris Williams: I mean it sound about accurate. What happened specifically?

Joe Patrice: The student speaker who is invited to speak gave a speech talking about the usual platitudes of, “Congratulations, we’re going to fight for our clients” whatever but given that this is CUNY Law where it’s a little bit more public interest law work that comes out of that school, those clients tend to be clients fighting against interests that tend to invite some criticism and also tend to push back with some criticism. So she did a lot of references to ice to the NYPD, to the state of Israel and talking about work that she and her colleagues in law graduating from law school should be doing to fight those institutions on behalf of downtrodden clients. This resulted in a bit of an uproar on social media as well as the New York Post jumped on talking about the vile hate speech that she engaged in.

(00:05:00)

I engaged in a whole conversation on Twitter over the weekend. Some people talking about how she should be in trouble for her blatant calls to violence. There’s none in the speech. She calls for people to represent folks in court. But it really was a testament to how these sorts of stories take on lives of their own and nobody bothers to check what the actual speech was. But yeah.

Anyway, the article that we wrote about it because many people are arguing about this hate speech, what to do, there’s a Republican lawmaker who’s introducing legislation to defund CUNY as a public law school because this speech happened. A lot of articles about that. The point that I wanted to make in my piece was it’s really interesting. We’ve talked on this show a lot about the campus free speech crisis TM that is all over the place. We have Judge Ho and Judge Branch talking about Yale Law School being out of control, the Washington Free Beacon continues to write stories. They wrote one about Princeton this weekend about all of these people who just are trying to use their authority to crack down on free speech. And by free speech, they mean unpopular right-wing opinions and it was real interesting that they got real quiet when there was an attempt to use the government to shut down a public law school for having this woman say all things considered fairly standard fair within the public interest law world.

Chris Williams: What are your thoughts on the substantive claims? So for example during the speech, he made comparisons between the conflicts happening in Palestine, Israel in the area and made parallels between recent killing on the subway in New York City. What are your thoughts on the actual cop — speech?

Joe Patrice: Yeah, on whether or not this really is hate speech. So yeah, that’s a great question. So let’s break these in two bits. On the first hand is, is this hate speech as it exists so that’s certainly the argument of a lot of these folks like the Post and the congressman who are criticizing it. Ultimately, and I will get to the second half but let’s be clear. The first half, I don’t think it’s particularly relevant as a question of the hypocrisy involved here, right? In the Yale situation, they were making a big deal out of having a registered recognized hate group come on campus and talk about how gay people should be castrated and such. So if that’s what we’re talking about on that side whether or not this is hate speech really isn’t relevant to the question of the hypocrisy there.

I also made the argument in the piece that I actually think that if you believe this is hate speech, it’s supercharges the hypocrisy, right? If it’s on the border whatever but if you think this is hate speech and you were willing to defend the hate speech of groups like ADF then you not doing here really is telling on yourself. So I think if this were hate speech it actually makes the hypocrisy worse.

Now, to the other question of, does this constitute hate speech, most of the speech does not really. There is a question in a couple places that I would point to but for the most part, the speech does not make calls to violence in any way. The speech is talking about incidents that actually happened like the Jordan Neely killing and the killing of a journalist in Palestine and so on. So most of what it does is just point to factual events and say that those are instances where we need lawyers to stand up for people’s rights. So, it’s hard to consider any of that really hate speech as much as the police don’t like being criticized nor do I’m sure the Israeli government. Those are kind of factual statements.

Now that said, at one point in the speech, she does utilize the term Zionism which I personally cringe at whenever I hear. I always feel like it’s about to be followed but yeah, like it’s just so wrapped up in all sorts of anti-Semitic tropes historically that whenever anyone — what?

Chris Williams: It’s overdetermined. It’s an overdetermined term.

Joe Patrice: Yeah, I think that’s fair and it’s got so much baggage in the anti-Semitic world that I feel like any time anyone brings it up, it does — I mean it is going to create sense that that’s what you’re doing and so that is obviously problematic. That said, I will also say that I find the term equally troubling as a political matter within Israeli politics.

(00:09:56)

The right-wing coalition that governs the country often uses it as a cudgel against their political rivals suggesting that if you don’t support their policies, you aren’t sufficiently being Zionist which that’s the way in which the term is being determined within that political world. Then you understand a little bit why people are taking to using it as something that they’re against. I think it’s really unfortunate that the term is getting tossed around that way. I would personally always avoid it.

That said, it is hate speech merely to use it offhandedly in this way? Potentially, it’s not great but it is something nonetheless regardless of how you feel, it is something clearly covered by principles of free speech. So that’s the long-winded way of dealing with that. Obviously in the piece, this is definitely the gotcha question because in my piece, it doesn’t talk about that at all because I really focus on the hypocrisy.

Chris Williams: You bypassed it for the sake of legal argument?

Joe Patrice: Well, I mean, bypassed potentially. On the other hand, I actually don’t know — it was almost like –.

Chris Williams: You bracket the question of if it — assume a hate speech for the sake of argument?

Joe Patrice: Well sort of except I do it because I think that it’s supercharges the term as we would say in our rhetorical engagement lingo. If it’s hate speech, it makes the hypocrisy worse so I just went ahead and said we don’t even need to dispense with this because if you take the most extreme read of this against her, it results in the point that I’m making.  So either it’s not a big deal at all because it’s nothing or it is and then that just supercharges the hypocrisy. So it was one of those in judicial opinion writing terms that say we don’t even need to reach that question sort of moment.

But yeah, no, but it is fair and it is something that is coming up on the NYU situation a few weeks ago. There was another one of these protests of speaker on campus that got a lot of press mostly because NYU Law misused the phrase hecklers veto again like everybody seems to. But in that case, it really did deal with the Z word so it is a real valid question to get into how people approach criticism of a government’s policies without draping it in anti-Semitic tropes which is an ongoing problem and an ongoing thing worth calling out. I just think it’s something that you call out by flagging it, denouncing it and protesting it not that you call out by trying to take away a school’s tax dollar funding, you know?

Chris Williams: Right. To a point you made about the, what was it you were saying? There are some parts that weren’t hate speech. You were just recounting things that actually happened. The thing that I find interesting is that overlap between where the mention of a fact or a purported fact in itself could be interpreted as hate speech. There’s another thing I see a lot of like online communities because usually people have the heart to say this shit in real life. It will be like 13/52. That’s like a shorthand for I say black people are 13% of the population but they commit 52% of the aggressive crimes.

One the better subject on that, there’s a whole much like ways of getting into the meat of the data like how do you account for over-representation of crimes, how do you account for the other representation of crimes, how (00:13:36) overpolice and what have you. Buy just saying 13/52 is a great shorthand for black people are inherently violent, right?

Joe Patrice: Yeah.

Chris Williams: There are things that are represented as if they are just a fact but the way that they are being presented has baggage to it. It is over determined by the context in which it is being said. Like for example, even if you say the thing, people understand the arguments you’re making rather than what you’re saying. So if I was like, “Oh cops 40%” like some people take a shorthand for it. It is documented that police officers about 40% of them reported being domestic abusers for their partners, right? So if I say that, we’re not even talking about the numbers themselves. That’s me saying cops are inherently violent, right? So I think that is an interesting space where if you first say, “Oh, a person was killed in a train” and that’s taken as hate speech because of the surrounding discourse rather than the fact of what was said and that’s what I think is interesting.

Joe Patrice: I mean that is fair. I think there are definitely facts that can operate that way. Are these (00:14:46)? That’s an interesting question. It definitely seems like there’s people out there who think that is true. On the other hand, part of the issue with a lot of these like the 40% or whatever is like you said, it’s more the context than the number itself.

(00:15:05)

And while it’s bringing in baggage, just not mentioning it is also problematic because understanding that baggage is important.

Chris Williams: A great amount of his speech and the normalization and incorporation of people who otherwise wouldn’t be part of hate groups into such groups is dog whistles. Like having to factor in dog whistles and hate speech and public speech acts I think is an open question and I’m not sure how to answer it.

Joe Patrice: Yeah. I mean I don’t know what you thought. I didn’t see other than the parts where she goes to the level of talking about “fighting Zionism” which is a thing that she says in there. I didn’t think anything else in the speech reached that point as far as carrying any of that negative baggage. That obviously I did cringe at but I don’t know.

Chris Williams: Yeah. (00:16:00) for me but in my mind, the hate speech I saw, they were like comments on Twitter saying, because (00:16:08) she was like you need to fight white supremacy and then spirals like I hope that she’s a victim of the laws. I hope that she’s a victim of the things that the laws are trying to prevent and that the laws won’t save her like that’s a threat. And if not a threat like clearly wishing harm on someone. I think those sorts of statements more approach calls to action, calls to violence than what she did.

Joe Patrice: Yeah, right. Throughout the speech though, I mean, it is very much a law school graduation speech. The calls that she keeps making is to lawyers to do what they’ve now been trained to do to use the system to stop these abuses that she’s outlining. I mean it’s a threat but it is a litigation threat that she’s making in the speech which I don’t see as problematic. Yeah.

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Joe Patrice: All right, so unfortunately you weren’t here last week because the week before, your story had been the top story the week. We wanted to talk about it but you weren’t here so we’re going to talk about it now.

Chris Williams: Yeah. So you all may be familiar with Amy Cooper. It was a white woman that cried wolf on a bird watcher in Central Park and in the meantime, she was choking her dog out. She basically tried to call a hit on him. She called the police officer and said that she being threatened. No real merit. And after the pit she was working decided to let go of her because one, it’s just (00:18:34) to have her working for you at that time. She sued for defamation under the claim that their employers said that after an internal review, we decided that we no longer want her to work here. We do not condone racist behavior. We don’t condone racism. Her counsels then are like, “Oh, they called her a racist. They’re implying but they had access to some of the information that the general public didn’t have.” And the judges are like, “Did you see the video?” It was a beautiful (00:19:05). And each time the attorney was like, “I wouldn’t say it that way” but (00:19:14) well we would like there was no room for sort of hand holding that you would expect of this situation how it tends to go down.

Joe Patrice: One thing from the oral argument that did confuse me is one of the things that the lawyer said was well and then they called a racist and the judges were like, “No they didn’t. They didn’t call it racist. They said they don’t like condoning racism.” I don’t know about that. I thought the judges were probably wrong on that point. I think that more or less it is saying that somebody was a racist at least within a certain instance. I also just don’t understand why that was — who cares? Like it’s not defamation. Saying that somebody is racist is pure opinion like they’re based on you can watch the video and come to whatever conclusion.

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I mean I don’t know. It’s easy to come to an opposite one but you can watch the video and come to a conclusion and that’s an opinion. Opinions aren’t defamation like it’s a statement of fact. Did this thing happen? Her employer looked at and said yes this happened and then made a decision like it’s not defamation which I think the judges were — with the exception of that little bit where they were trying to cut the baby on whether it was racist or racism and whether or not there was a distinction. The judges seemed pretty fixated on, “You don’t get to say that this is anything but an opinion.”

Chris Williams: Yeah, well I think it’s one of those things were like, you know when there’s a person that you really don’t like and you say something that’s hard to object to like, “Oh, it’s Wednesday” and then you’re like, “Well, it depends on the time zone really.” I think it was one of those things. I just think they didn’t want to give counsel any room to make the bum ass argument he was making. So that was my read in the situation.

Joe Patrice: Like Judge Nathan, there was one part where I’m pretty sure it was Judge Nathan was going off on, “When you say they conducted an investigation, you’re leaving out into this incident where you should be saying those words.” And I was like, I don’t know. I mean I think it’s pretty clear. I don’t know that there’s some other incident that we’re all talking about but yeah, they seem that they were –.

Chris Williams: That was the stakes. That was the stakes of the case. What they’re trying to argue was that the firm made it seem as if there were some other incidents that they were privy to that the general public was not.

Joe Patrice: Okay. Yeah. I don’t know. So that’s fair. They were really on top of that but it’s just still not –.

Chris Williams: So the judge is saying that (00:21:48) you’re misrepresenting.

Joe Patrice: I see, okay.

Chris Williams: The judge by clarifying in that way was doing a bit luring from the bench. It’s like we’re not letting you get away from messing with the fat pad. You’re not on the supreme court. Only they can do that.

Joe Patrice: Yeah, right.

Chris Williams: You have to actually represent what happened.

Joe Patrice: Great. Yeah. So things are going badly for all lanes. Defamation. Well I think that’s important because we hear about it a lot like people toss around defamation all the time. I mean we had like Trump’s always complaining about it but it’s one of those things that it is less frequent than people seem to think it is because most times, people are making opinion claims not misrepresenting facts. And so, yeah.

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Joe Patrice: So the other big story that kind of dominated the beginning of this week was, or the beginning of last week I should say, there was apparently an attorney who, a couple of attorneys let’s say to be clear, who filed an opposition. They filed it not as a brief. They filed it as an affidavit in opposition to a motion to dismiss in a personal injury case in federal court. And it cited — it’s a complex legal question actually. It’s about whether an international treaty controls whether a personal injury case has the statute of limitations tolled just because the airline happens to be in bankruptcy for the time and does it carry over if they come out of bankruptcy? Do you get to revive that claim? Does state law control or international law for an international airline? Blah, blah, blah.

So that’s the question. And the affidavit has some very on point claims and some on point precedent citing case law that outlined how their claim would survive that. And then the other side and the judge tried to look up that case law and it wasn’t there. Just didn’t exist.

Chris Williams: This is why you don’t do your research people.

(00:25:00)

Because then you let other people get away. (00:25:02). That’s the more interesting story.

Joe Patrice: Well, it is. And I’m glad you said that because that is the story as we took it. A lot of the mainstream media took this as because the old reason this happened is that the lawyer whose case it was but not who filed the affidavit, that’s another procedural issue here. The lawyer who owned this case brought in state court and got removed to federal court. He’s not admitted in federal court so one of his partners actually filed it under his name but it was written by the person who actually runs the case.

That person chose to use ChatGPT to do some research for him and it came up with these dead on point decisions but it was making all of it up. Because fundamentally, ChatGPT is there to give you the answers you like and it will give them to you whether or not they’re real. This is why we always talk in the AI world those of us who cover Legal Tech about how the challenge that’s going to dominate the tech world in for us is going to be about building guard rails because left to its own devices, AI is going to do some wacky things.

So they fought. He ran this search through ChatGPT, found something that was perfectly on point. Put it in this filing. Never bothered to check whether or not this was really real. When he was confronted with, “Is this real,” allegedly his response was to ask ChatGPT are these cases real and GPT was like, “Course they are, bruh. Here they are.” And because it will go to the lengths of reproducing what it thinks looks like an opinion for you if you ask it to even if it’s fake. So ultimately, that’s where things stood. This is not a young lawyer, this is lawyer with years of experience who just didn’t know ChatGPT was capable of hallucinating he says.

He assumed that he was basically asking a legal database which if you think of it this way, if you asked Westlaw for a case and Westlaw gave you a case and then you were like, “Oh, was that case real” and it said, “Yeah, here it is,” you would trust that. In this guy’s mind, that’s what ChatGPT was doing. In reality, ChatGPT is not a legal database. It draws upon information and guesses at answers based on what it thinks you might want to hear. Usually that works out right. In this case it did not. But the real problem here to get back to what you said about doing your research is, all this guy needed to do at any point was look at the cases that he was citing.

How many cases do you put in a goddamn brief, right? Like 10, 15? Read them. You’ve got these sites? Go ahead and read them. I mean that’s basic low-level lawyering work. So I don’t — so even though the mainstream media went off on this is what happens when you trust ChatGPT and ChatGPT’s a danger and AI is not going to replace lawyers, yada, yada, that’s not really the question here. I mean, this isn’t really a tech issue. This is a bargain basement legal issue. Like all you need to do is do your research and due diligence into what you’re citing before you submit it to a court.

So these lawyers are in some trouble. The judge has filed an order to show cause, wants them to show up and explain why they shouldn’t be sanctioned and carried over to discipline and so on.

Chris Williams: I feel like the reason should be, “Come on. I’m a little guy. I wear glasses.” It won’t work but it should be the reason.

Joe Patrice: I mean it kind of is. They absolutely are leaning into, “Oh my God, I had no idea. I had no idea. I never intended to do it this way. I kept asking it to prove that it was right and it kept getting the answers saying, “Of course, I’m right” and I just trusted that” which is wrong but it is — that’s the issue here. The AI, whatever. ChatGPT should not be used for the sort of stuff. If for no other reason that ChatGPT is a retail facing novelty, the underlying technology is actually super sophisticated and many legal tech companies are now integrating that underlying technology into legal specific applications, those you can trust. Well I mean you would still want to read the cases because that’s basic diligence but those are probably going to give you good answers. But don’t be using a novelty chatbot to write briefs.

Chris Williams: Especially not in such a niche legal area which is the funny thing in my mind because I imagine it was just like some run-of-the-mill tort case nobody would have checked. I would imagine like if — I think the only maybe one of the other areas that this could have happened would be if it were like a qualified immunity case and they’re like, “No, this is too spot on.”

(00:30:02)

No. You mean to tell me this happened?

Joe Patrice: Well right. And honestly that’s kind of the issue. Like one, I think people were going to check no matter what. I talked to some folks who are overly skeptical and think that these lawyers were trying to pull a fast one with this and I was like, “No.” This is Occam’s razor situation. Nobody would try to pull this fast one because you would assume the other side would read the cases. You can’t make up a case because the other side is absolutely going to look it up so that they can file a reply.

So no one was trying to pull a fast one because that would be stupid but you’re right about the niche issue. And that’s what got me that a lot of people weren’t writing about when in their coverage of it was the big quote that he has which has a lot of these cases internally cited in that sites to a case that doesn’t exist and that has multiple internal citations to cases that don’t exist. It’s like a whole page explaining in the specific case where someone has been bankrupt but the Montreal protocol governs but the states — and I’m like, when there’s a whole page that is entirely on point, that’s a red flag. There’s no way this has come up exactly like this before. That should have been the first moment where you started wondering if this made any sense.

Chris Williams: No. ChatGPT was like, “Oh this is the Old Montreal bankruptcy treaty. I saw this back in 94.”

Joe Patrice: Exactly. Oh yeah. This one. Yeah, no. So yeah, don’t use ChatGPT. Don’t be afraid of other AI technologies that are being put together by competent folks because those are going to be useful but in no event does it mean that you don’t research on the back. The way this is going to work is you’re going to give — we’re going to reach a point and we’re not going to replace lawyers but we’re going to reach a point where you ask a real AI driven legal application to give you the case law that deals with the sort of situation and it is going to — it’s going to come up with answers, many of which are going to be fake. The company that built it if they built it prudently will have built guardrails and checks in there so that it doesn’t report to you all the fake ones and only reports to you the good ones. And then you’re going to get your answers and you’re going to print them out and then you’re going to read them.

And that’s going to — that’s not replacing lawyers but it’s going to take a task that normally you would bill five or six hours for and it’s going to replace it to billing one hour for. That’s what’s going to happen. It’s not that GPT is going to write these briefs and you’re going to submit them without cite on scene, you know?

Anyway. All right. I think that’s good. We’ve been going on for a while here so let’s let people get back to their days. Everybody, you should be subscribed to the show so you get the new episodes when they come out. You should be reading Above The Law so you read these and other stories before we chat about them. You should be following us on social media. I’m at @josephpatrice. He’s @writesforrent.

Chris Williams: It’s kind of a joke.

Joe Patrice: Yeah. I mean it works. Look, for a long time, I said rightsforrent and then somebody pointed out, I can’t find him at right and I said, “Oh yeah, I guess that’s fair. Anyway, you should follow Above The Law. It’s at ATL blog. I guess I’m Joe Patrice at BlueSky. I haven’t really done much over there but I’m playing around. Are you on any of the alternative ones yet?

Chris Williams: I’m on Facebook man.

Joe Patrice: No, okay. Yeah. I mean more like a mastodon BlueSky situation.

Chris Williams: I know. That’s why I answered I’m on Facebook.

Joe Patrice: Fair enough. So you should be listening to this show, the Jabot which Kathryn hosts. You can listen to the Legaltech Week Journalist’s roundtable which I’m a panelist on. You should be listening to all the other offerings from the Legal Talk Network and I think that brings us to an end. Thanks to sponsors and all and thanks everybody for listening.

Chris Williams: Read your own briefs.

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