AI vs Legal Experts 0-1 (for now at least)

Craig MacKenzie
Craig MacKenzie

Published: December 15th, 2023

7 min read

On occasion, Siri or a Google search may well be able to answer a legal query, but the end-user needs to know whether the information online was accurate when first posted and, if so, is correct now. Lawyers spend years learning the skills necessary to carry out proper and comprehensive legal research using sophisticated legal resources.

The latest research tool to emerge is ChatGPT, which is more than a mere search engine and, through advances in artificial intelligence, might offer quicker and cheaper ways for people to search for legal answers.

Early results are not promising, and recent cases in the USA and England have shed light on apparent dangers.

A lady called Felicity Harber got involved in a legal dispute with the taxman and, during the court case, represented herself, using ChatGPT to assist her in fighting her claim.

She supplied 9 cases, along with a summary, all of which were said to support her legal argument. Mrs Harber said that the cases in the Response had been provided to her by "a friend in a solicitor's office" whom she had asked to assist with her appeal. Mrs Harber did not have more details of the cases she did not have the full text of the judgments or any reference numbers.

The Tribunal told the parties that they had looked at the FTT website and other legal websites and had also had been unable to find any of the cases in the Response. The Tribunal asked Mrs Harber if the cases had been generated by an AI system, such as ChatGPT. Mrs Harber said this was "possible", but moved quickly on to say that she couldn't see that it made any difference, as there must have been other FTT cases in which the Tribunal had decided that a person's ignorance of the law and/or mental health condition provided a reasonable excuse.

The Tribunal made two important findings of fact in relation to this point:

  1. That the cases in the Response are not genuine FTT judgments but have been generated by an AI system such as ChatGPT.

  2. That Mrs Harber was not aware that the cases in the Response were fabricated and did not know how to locate or check case law authorities by using the FTT website, BAILLI or other legal websites.

The Tribunal held:

Although we have accepted that Mrs Harber did not know the AI cases were not genuine, we reject her submission that this did not matter because the Tribunal had decided other reasonable excuse cases on the basis of ignorance of the law and/or mental health issues. We instead agree with Judge Kastel [who ruled in a similar case in the United States], who said on the first page of his judgment (where the term "opinion" is synonymous with "judgment") that:

"Many harms flow from the submission of fake opinions. The opposing party wastes time and money in exposing the deception. The Court's time is taken from other important endeavours. The client may be deprived of arguments based on authentic judicial precedents. There is potential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinions and to the reputation of a party attributed with fictional conduct. It promotes cynicism about the legal profession and the…judicial system. And a future litigant may be tempted to defy a judicial ruling by disingenuously claiming doubt about its authenticity."

We acknowledge that providing fictitious cases in reasonable excuse tax appeals is likely to have less impact on the outcome than in many other types of litigation, both because the law on reasonable excuse is well-settled, and because the task of a Tribunal is to consider how that law applies to the particular facts of each appellant's case. But that does not mean that citing invented judgments is harmless. It causes the Tribunal and HMRC to waste time and public money, and this reduces the resources available to progress the cases of other court users who are waiting for their appeals to be determined. As Judge Kastel said, the practice also "promotes cynicism" about judicial precedents, and this is important, because the use of precedent is "a cornerstone of our legal system" and "an indispensable foundation upon which to decide what is the law and its application to individual cases."

In this case Mrs Harber could have gotten off quite lightly due to her apparently innocent mistake, but one might expect more severe consequences in the future.

Mrs Harber lost her case, perhaps not surprisingly.

Don't leave important legal matters to chance; always consult an expert lawyer at the first opportunity.

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