EP 205: AI Headshots, Deceptive Resumes, and the $30 Million Fight Over Attorney’s Fees

Episode Notes

Transcript

Christine Byers [00:00:00]:
Dear Case Doctors, opposing counsel just tried to introduce a witness’s LinkedIn headshot as evidence of their demeanor and credibility. Welcome to The Case Doctors. Except the headshot was AI-generated and doesn’t actually look like the witness at all. With John Simon and Alvin Wolf.

John Simon [00:00:18]:
They’re trying to draw the inference that they’re not quite honest.

Christine Byers [00:00:21]:
The show where 2 of the greatest legal minds offer you advice on your cases.

Alvin Wolff [00:00:25]:
I’ve got several pictures online. Some people say to me, you know, why are you still using the picture from your bar mitzvah?

Christine Byers [00:00:32]:
The Case Doctors will see you now. Welcome to The Case Doctors. I’m your host, Christine Byers of Simon Law, and I’m joined by The Case Doctors, John Simon and Alvin Wolf. Now, between them, they have more than 80 years of experience as plaintiff’s attorneys, so there really isn’t a scenario they haven’t already encountered on a case and figured out how to handle it. Now they’re offering you the chance to tell them about various problems or issues that are coming up in your cases and hear how they would handle it. But first, let’s turn to some of the civil cases making headlines and hear what the Case Doctors have to say about them. So for our first Hot Topic, Alvin Wolf is going to introduce it for us. Alvin, what’s our first Hot Topic?

Alvin Wolff [00:01:23]:
There’s an Uber initiative in California that’s going on right now that would have a significant impact on personal injury cases in California regarding attorney’s fees and requiring 75% of all monies go to the injured parties, where they’re, um, trying to get a law passed that restricts attorney’s fees, which allows attorney’s fees to only be taken out of settlements after the medical bills are paid, putting a cap on medical bills. I mean, what they’ve got is crazy.

John Simon [00:02:00]:
This is Uber doing it?

Alvin Wolff [00:02:01]:
Uber is behind it.

John Simon [00:02:02]:
Oh my goodness.

Alvin Wolff [00:02:03]:
The attorneys in California— I was at Dordick’s Trial College in Cabo in May, and this coalition is trying to raise $30 million to prevent this law from passing.

John Simon [00:02:16]:
It’s beyond just Uber? Or is it just Uber cases?

Alvin Wolff [00:02:20]:
It’s for any personal injury case in California. Wow.

John Simon [00:02:23]:
And Uber is funding it or behind it?

Alvin Wolff [00:02:25]:
Uber’s behind it. And, and they— the lawyers have raised $20 million as of the meeting I was at, and they’re trying to get to $30 million thinking they can beat it with that. But I mean, that would destroy every personal injury practice in California. Wow.

Christine Byers [00:02:43]:
And then could that lead to further states looking into doing that?

Alvin Wolff [00:02:49]:
Well, like With the Beach Boys, it moved from the West Coast to the East Coast. The same thing happens with California laws.

Christine Byers [00:02:57]:
Yeah, so definitely something to keep an eye on. Does that concern you to know that that’s going on in California and it could come this way?

John Simon [00:03:06]:
I think all states, you know, are looking at what the other states are doing. As soon as something’s passed in a particular state that benefits one side or the other, you look at it. I mean, people are looking at it, try to do the same thing get the same law passed in their own state. I mean, that’s happened, you know, for the last, as far as I’ve been practicing law, that’s happened.

Alvin Wolff [00:03:24]:
So under the Uber initiative, the proposal would cap attorneys’ fees in most motor vehicle crashes to 25% of the net recovery, require that at least 75% of any settlement or judgment go directly to the injured person after litigation expenses are deducted. I mean, that is a game changer. Yeah.

John Simon [00:03:51]:
I mean, it does eliminate a lot of the cases for sure.

Christine Byers [00:03:54]:
All right, gentlemen. Another hot topic has to do with the John Deere right-to-repair settlement. I’ll read you a quick little summary. The FTC and 5 states secured a settlement with Deere and Company ensuring farmers can repair their own tractors and equipment. The FTC, along with the attorneys general of Illinois, Arizona, Michigan, Minnesota, and Wisconsin, sued Deere and Company, John Deere, in January of 2025, alleging the company illegally restricted farmers’ and independent repair shops’ access to the diagnostic software and repair tools needed for electronic repairs on its equipment. The complaint alleged Deere held a monopoly power over repair services for its equipment because it controlled the only software capable of completing all electronic repairs. That forced farmers to rely on authorized dealerships and driving up repair costs and delays during critical farming windows. So why did it take a federal antitrust case to force Deere to let farmers fix their own equipment?

John Simon [00:04:58]:
Because they had a monopoly.

Alvin Wolff [00:04:59]:
Because they wouldn’t do it on their own.

John Simon [00:05:02]:
Right, yeah, no, it’s— You know, it’s interesting. I agree 100% with the result in that case. Years ago, my brother Tony and I tried a case similar to that, and it was a different company. It was a software company, a company that repaired like mainframe computers.

Christine Byers [00:05:17]:
Okay.

John Simon [00:05:18]:
And the company that was manufacturing it had denied access. You had to, in other words, in order to do repairs on the equipment, you needed to have an access code, and they wouldn’t give the access code. But that was the whole thing. We represented a small business owner in Missouri who found a way to access the code. And he found a way to access the code so he could start repairing the equipment. And he was charging about 1/3 of what the defendant was.

Alvin Wolff [00:05:42]:
Wow.

John Simon [00:05:42]:
And they had a monopoly on repairs of their own equipment. And so what happened is they sued him initially for— I don’t know what the claim was— that, you know, they, you know, somehow he reverse engineered to get their code to have access to the equipment. And then we filed an antitrust claim claiming This is the— and it was a multi, you know, it was several hundreds of thousands of dollars of repair a year. That was the market. And that they literally had a monopoly.

Christine Byers [00:06:08]:
Wow.

John Simon [00:06:09]:
And again, the prices were a third. You know, he’s doing the same amount of work and charging a third. But I agree with the result. I can see that, you know, especially, you know, farmers who, you know, are a little bit more, you know, self-reliant and self-sufficient.

Alvin Wolff [00:06:23]:
You got—

John Simon [00:06:23]:
if they know how to repair the tractor, repair it.

Christine Byers [00:06:25]:
Right.

John Simon [00:06:25]:
Versus bringing it in.

Alvin Wolff [00:06:26]:
I’ve got a car, and if I don’t get the service done at the dealership, the warranty is voided.

John Simon [00:06:33]:
Yeah, that’s another— what do you think of that? I mean, you know, I don’t know.

Alvin Wolff [00:06:37]:
Well, I’m not paying anything for the work, but it is a pain to go out to the place to get it done. I mean, if I want to get the oil changed and I want to go to the Jiffy Lube—

John Simon [00:06:47]:
You know, so I’m wondering with cars today, I mean, you really— nobody can really repair their own car. I mean, it’s kind of difficult with With how sophisticated they are in the computer systems and all of this, you almost— I’d be reluctant not to bring it back to my dealer, as complicated as they are, for fear that somebody who, you know, didn’t know what they were doing would mess it up or something. Who knows?

Christine Byers [00:07:08]:
Farmers may be a little different with their equipment.

John Simon [00:07:10]:
Yeah, especially, you know, a lot of that equipment probably isn’t brand new. You know, some of it might be 10 or 15 or 20 years old. And, you know, if you can fix it yourself, fix it.

Christine Byers [00:07:20]:
I’d be curious also for you guys, What did Deere’s old policy actually cost farmers? Time, money, or both?

John Simon [00:07:28]:
I think both. They had to— if they could fix it themselves, they’d have to take it into the dealer. Say, look at it this way. They’re in the middle of the field, and when are you going to find out it’s broken? When you need it and you’re going to want to use it, right?

Christine Byers [00:07:40]:
Right.

John Simon [00:07:40]:
And it either breaks down then in the middle of the field, and what do they need to do? Have it towed to a, you know, a John Deere dealer or, you know, And that way, if they can repair it themselves on site at the farm and keep rolling. So I think it costs them time and money.

Alvin Wolff [00:07:55]:
Well, sure. A lot of these farmers are in rural areas, and to get it to a dealership probably would take a long time and it’d probably be very expensive.

John Simon [00:08:03]:
I would bet that the dealer probably wouldn’t be able to get them in and fix it right away, too. They probably had to wait for that.

Christine Byers [00:08:08]:
Oh, yeah, absolutely. That would be another issue for sure that would come up. Do you guys think this ruling could open the door for right-to-repair fights in other industries, like, like we were talking about cars, phones, medical devices?

John Simon [00:08:21]:
Absolutely. People see that and you can compare it to other, you know, just like we were doing with Alvin’s car, same thing.

Christine Byers [00:08:28]:
So time now to turn to our email inbox for the cases our viewers have sent in for the Case Doctors to diagnose. Now, just so everyone knows, we’re not going to reveal where these cases came from. We’re not going to name any names or firms to protect the confidentiality of cases. Instead, The case doctors are going to focus on just the issue in each of them. So as they say, the case doctors will see you now. Dear case doctors, opposing counsel just tried to introduce a witness’s LinkedIn headshot as evidence of their demeanor and credibility, except the headshot was AI-generated and doesn’t actually look like the witness at all. Now we’re arguing about whether an AI-smoothed, better-lit, slightly more symmetrical version of someone’s face counts as a misrepresentation of identity. Do I need a photo expert or just my own eyes?

John Simon [00:09:19]:
So they’re trying to show that that person posted their own image that doesn’t look like them, and then they’re trying to draw the inference that they’re not quite honest.

Christine Byers [00:09:31]:
Yes, perhaps a credibility issue.

Alvin Wolff [00:09:33]:
You know, I’ve got several pictures online and some people say to me, you know, why are you still using the picture from your bar mitzvah?

Christine Byers [00:09:44]:
Yeah.

Alvin Wolff [00:09:44]:
I said, it seems like, where are they going to use this? Is this a— this would be a discretionary call by the judge, I would think.

John Simon [00:09:53]:
Well, I would go one step further, a little more in-depth look at this. And why in the hell is that lawyer— if that’s all he’s got is a LinkedIn picture of the person, I mean, if that’s really where he’s headed with credibility, he must not have much else in the case.

Alvin Wolff [00:10:09]:
I mean, some lawyers have a commercial with They’re in a cartoon. Can you use that to show that they’re a clown? I mean, that makes no sense to me.

Christine Byers [00:10:18]:
The opposing counsel is trying to introduce this headshot as evidence of this witness’s demeanor and credibility, but it’s AI altered.

Alvin Wolff [00:10:25]:
I don’t think the jury instructions would address that. You have to look at what they say and how they say it versus judging a book by its cover. You should not do that.

John Simon [00:10:36]:
The follow-up question would be, is that you? And the follow-up question would be, are you sure that that’s you?

Christine Byers [00:10:41]:
Right?

John Simon [00:10:42]:
And then that’s all you would need to do.

Christine Byers [00:10:43]:
All right. So our next case is the resume that lied better than the candidate. Dear Case Doctors, my client’s company used an AI tool to screen resumes, and it ranked a candidate as exceptionally qualified based on skills the candidate does not have. And as far as we can tell, never has. They were hired, underperformed immediately, and now there’s a wrongful termination claim in the mix with the candidate arguing the company vouched for his qualifications by hiring him off of AI’s recommendation. Question I have is, can a hiring algorithm’s bad judgment become my client’s legal problem?

Alvin Wolff [00:11:23]:
No, he’d be suing the employer for hiring him wrongfully because his resume was incorrect. I mean, that would be like me bringing a malpractice case based on an AI program I have that looks at medical records for me. And it’s wrong. You’ve got an independent duty to vet whatever you get from AI. It’s just like citing a hallucination case that doesn’t exist. Whenever I get a case from my AI research, I look and make sure that case really exists. And then I read the case to make sure the case says what AI says it says. And if you don’t do that, it’s your own neglect.

Alvin Wolff [00:12:05]:
But does that give the employer liability for relying on AI against someone who was using a deceptive resume? I don’t think so.

John Simon [00:12:15]:
I think if it’s a deceptive resume, the information, I don’t see a case there.

Alvin Wolff [00:12:20]:
Now, if a third party was harmed by that, by that person based on their deceptive resume, then that third party may have a claim against the employer for whatever, if there’s damages.

Christine Byers [00:12:32]:
All right, gentlemen, our next case comes to us. Dear Case Doctors, we just found out the opposing party’s practice deposition prep video, which somehow ended up on a public server, and it appears to have been run through an AI tool to soften the witness and make him seem more sympathetic. Different words, same face, suspiciously good posture. Is a leaked AI-doctored prep video discoverable? And more importantly, can I use it to cross-examine him about the version of himself that doesn’t stutter?

John Simon [00:13:04]:
Yes and yes. If it’s out on the internet, it’s fair game.

Alvin Wolff [00:13:07]:
I think privilege has been waived.

John Simon [00:13:09]:
Yep, it’s been waived. And, you know, even if it wasn’t, if you, if you have it, you can cross-examine with it. So I think they’re done with that. Who’s writing in? Oh, the opposing counsel.

Christine Byers [00:13:19]:
Opposing.

John Simon [00:13:19]:
Yeah, I think they can use it for whatever purpose they want. It’s a party. Right, in the case?

Christine Byers [00:13:24]:
Yes.

John Simon [00:13:25]:
And it’s a deposition prep. I mean, you know, here’s the other thing too. Let’s assume it wasn’t even out on the internet. What if you had a prep session of your client and in the prep session you had a videographer who wasn’t an employee of your firm? Could that videographer be subpoenaed with the tape for trial?

Alvin Wolff [00:13:47]:
I would think probably. Because the privilege has been broken.

John Simon [00:13:51]:
If you have a conversation with your client in front of somebody who’s not employed by your firm, the privilege is waived. And it would be the same if you brought in— you know, we did have— we had an issue in a case where opposing counsel did a practice, exactly what you’re talking about. We had a situation where opposing counsel did a practice deposition. I think it was a med mal case. And one of the attorneys here asked if there was a reporter and found out who the reporter was. Yeah, I don’t know whether what happened past that, but, uh, that, that was an issue for sure. Interesting. If the reporter’s there and the reporter’s not an employee of your firm, it’s waived.

Alvin Wolff [00:14:31]:
And that happens when you’re— let’s say you meet with your client and they bring in a witness. You don’t want to talk to your client about the case with the witness there.

John Simon [00:14:38]:
No. And, you know, you got to be careful about that because they come in with family members and You know, you want to, you want to make sure that they understand why you don’t want them sitting in the room when you’re talking to them. No, you got to be careful about that. It’s, it’s only privileged if it’s between the client and the attorney.

Christine Byers [00:14:53]:
Okay, gentlemen, that will do it for this episode of The Case Doctors. If you have a case that you would like The Case Doctors to dissect, send us an email at [email protected]. And here’s a QR code that will take you directly to our contact page. Once again, we will be keeping all names and cases Confidential. Thank you for joining us, and we will see you next time on The Case Doctors.