Judicial Guidance on the Use of GenAI in Court

As generative artificial intelligence (GenAI) tools become increasingly integrated into legal research and writing, courts and judges across the country have responded. A growing number of judges have issued standing orders and other guidance addressing whether, and how, GenAI may be used in filings, raising important questions about accuracy, disclosure, and professional responsibility. There are some common themes throughout many of these orders, which provides some insight to law students and practitioners about what responsible use of legal GenAI looks like.

General themes found in court orders on the use of GenAI

AI vs. GenAI

Many of these orders conflate the terms “artificial intelligence” or “AI” with “generative artificial intelligence” or “GenAI.” This can raise more questions for practitioners, as these are distinct technologies. Not all AI is GenAI. AI is the broad field of computer systems designed to perform tasks that typically require human intelligence, while GenAI is a subset of AI that focuses on creating new content based on patterns learned from data. AI has been integrated into things like search result ordering in Lexis and Westlaw for decades, meaning that attorneys may be using AI without knowing it – or knowing whether they should disclose it in a jurisdiction that simply dictates that attorneys must disclose any “use of AI” – such as Judge Alice Benton from the Superior Court of Fulton County (Florida)’s Standing Order Regarding Use of AI.

Declaration or disclosure

Some orders, including this order by U.S. District Judge Dale E. Ho from the Southern District of New York, ask that attorneys declare or disclose their use of GenAI. Some also ask that attorneys provide additional information, like what tool was used and how the results of this use were incorporated into the filing.

Rule 11 of the Federal Rules of Civil Procedure

Many orders, including this order by U.S. District Judge James L. Graham, mentions Rule 11 of the Federal Rules of Civil Procedure by name. Rule 11 speaks to representations made to the court, and states that an attorney is under an obligation to certify that are representations to the court is not being presented for improper purpose, that the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law, and that factual contentions have evidentiary support or will likely have evidentiary support. 

Verification

Similar to citations to the Federal Rules of Civil Procedure above, a common theme found in many court orders on the use of GenAI include a call to verify any information included in any court filing. This includes, but is not limited to, information provided by GenAI. This order from the Gray County Court (Texas) contains an explicit call to verify all information created or contributed by GenAI using a traditional (non-AI) legal source by a human being licensed to practice law in Texas.

Attorney obligations

Attorney ethical obligations (especially the duty of confidentiality) are often referenced in court orders such as this order by the Arkansas Supreme Court that warns lawyers that entering confidential information to GenAI tools (especially “public LLMs”) may violate existing professional obligations.

Where do we go from here?

Practitioners should ensure that they are checking for any guidance on the use of GenAI in courts and jurisdictions in which they practice. It is also advisable to take opportunities to have your voice heard on issues surrounding the use of GenAI in court. For example, in November 2023, the United States Court of Appeals for the Fifth Circuit proposed a rule amendment that would require attorneys to certify that no AI was used in drafting filings or, if AI was used, that all generated text (including citations and legal analysis) have been reviewed for accuracy and approved by a human. This proposed amendment was opened to public comment. Many public comments by attorneys stated that this proposed amendment was unnecessary as it posed no new responsibility – attorneys are already responsible for accuracy in their filings. As a result, in June 2024, the Fifth Circuit announced that they would not adopt the proposed rule. 

As with all topics surrounding GenAI, it is hard to say how court guidance on the use of GenAI will continue to develop. A complete ban on the use of artificial intelligence in legal proceedings will be discussed by the Texas Supreme Court, according to Chief Justice Jimmy Blacklock. On the other hand, the Illinois Supreme Court issued a policy on artificial intelligence stating that the use of AI in court proceedings is specifically permitted (with ethical safeguards and oversight). 

Resources tracking GenAI court orders

There are a number of resources dedicated to tracking court orders on GenAI:

Responsible AI In Legal Services (RAILS) AI In Courts Tracker 

Law 360 Pulse Tracking Federal Judge Orders on Artificial Intelligence

Lexis Generative Artificial Intelligence (AI) Federal and State Court Rules Tracker