Artificial intelligence (forgive the Savior Faire reference) is everywhere. That's not new information, other than perhaps (but only perhaps) for someone who's on some Larson-esque desert island. It seems like the whole world is turning into some horrific Black Mirror episode.*
One emerging danger of AI involves the inputting of search information into an open AI engine, only to find that the information is spit back out to future users in a way that could compromise confidentiality and privilege. Scary stuff - and not overly intuitive, if you ask me.
The more pedestrian and arguably somewhat hilarious (so long as it doesn't happen to me or you) problem arises when a lawyer asks AI to write a brief or other advocacy piece and the platform spits back a bunch of stuff that includes fabricated, wholly invented cases. Apparently, when AI can't find what it needs to get to the answer it wants, it just makes it up. The phrase that's evolved here is - and I think this is pretty funny - "hallucination" citations.
Now, I just want to take a step back here for a moment before overly vilifying the lawyers who get themselves caught up in this nightmarishly dystopian world. I really believe that there are users, particularly less tech-savvy users, who liken AI to per diem or even associate- or paralegal-type help and think that they're marshaling research that's been properly provided. None of that forgives the attorney's breach of the duty of care, supervision, review, etc. But I think there are those rushing to judgment who assume that not only has the attorney been careless but that the attorney has been intentionally dishonest. Again, without giving the attorney a pass, I think that at least in some cases the lurch to a dishonesty conclusion may be one step over the line.
Anyway, the hallucination point has finally made its way into the world of ERISA. In Mid Central Operating Engineers Health and Welfare Fund v. HoosierVac LLC, No. 2:24-cv-00326-JPH-MJD (S.D. Ind. Feb. 21, 2025), a lawyer was representing a company accused of violating ERISA by blocking a welfare fund from auditing its books and payroll. A brief filed by company counsel in support of transferring the case argued that Seventh Circuit precedent allowed for the transfer. One problem - the argument partially hinged on caselaw that does not exist. The attorney was apologetic and (further to a point made above) asserted a lack of intentionality, but the court was largely unmoved and hit the attorney with a $6,000 sanction (which, notwithstanding the court's ire, was less than half of what the magistrate had recommended). (The court went on to find other examples of this problem in the attorney's past filings.) Oops.
Welcome to the land of Black Mirror.
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* Sometimes, the Black Mirror world is already here, and sometimes the series is prescient. [SPOILER ALERT - the following text in the remainder of this footnote may constitute soft giveaways for particular Black Mirror plotpoints, so read this footnote no further if you don't like even soft spoilers] After watching "Shut Up and Dance", a present-day tale in many ways, I literally went out and ordered camera covers from eBay for my PCs. (Note the Barnie's tie-in to Season 7's "Bête Noire".) In the case of Joan Is Awful, I think the world turned into Brooker's vision about 17 minutes after the episode was released. Other examples of how BM (much like Seinfeld and Curb) is (or will be) essentially nonfiction abound..
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