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Lawyers Can Innocently Cite To Nonexistent Authorities

Not every instance of incorrect citation involves a lawyer twirling a mustache and cackling in a sinister fashion.

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MistakeSome news articles recently have reported on lawyers who were caught citing legal authorities that did not exist. Earlier this year, a lawyer relied on artificial intelligence to compose legal writing, and the AI tool cited to nonexistent authority in a manner that is consistent with the “hallucinations” that some AI tools experience. More recently, a lawyer was seemingly caught citing to made-up authorities that people were not able to track down. Although making up fake authorities is unacceptable in the legal profession (and most others), there are some ways that lawyers might more innocently cite nonexistent authorities when preparing legal papers.

Copying Citations

From my own experience, lawyers can get tripped up if they copy citations from work that other people prepared. For instance, sometimes a legal decision includes a solid recitation of the law and a citation to an authority, and it can be tempting to copy and paste the entire passage into a brief that an attorney is preparing. Lawyers might think that courts would not cite to nonexistent authorities and that this practice is safe. However, courts are run by fallible people, and I have definitely checked citations included in legal opinions and found errors in the past. As such, lawyers should not trust legal opinions to include trustworthy citations to the law.

Copying the work of other lawyers can also be perilous. Sometimes, lawyers work on large teams when preparing legal papers. A team is only as valuable as its weakest link, and if one person has a bad citation, it might not be caught by other members of the team. As a practice, if I rely on work that was prepared by another lawyer, I always cite check the authorities. Every so often, I find that citations are wrong, and this could have easily caused problems.

Bad Citations

More commonly, citation issues are caused by bad citations rather than any negative motive by the lawyer. It is easy for lawyers to mix up page numbers or copy and paste a citation that does not reflect the point of law to which the lawyer is referring. At the beginning of my career, when I was working at a Biglaw shop, I worked on a team that had a citation failure. The court dropped a footnote in its opinion calling out the fact that a citation in a given brief was not accurate, and a partner put me in charge of finding out what had happened.

I ended up reviewing the authorities that had been cited and discovered that the point of law was included in the case but in a different part of the opinion than reflected in the citation. I surmised that the lawyers drafting the papers simply included the wrong page number, likely due to the fact that the lawyers had immense pressure to complete a given brief on a demanding time schedule. This was sloppy lawyering for sure, but this was definitely not at the same level as manufacturing authority from nothing.

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Confusing Citations

Sometimes when a lawyer is looking for authorities to buttress a point, they will search for anything that will support their position even though the authority only tangentially relates to their point. A court can say things in only so many ways, and sometimes lawyers will include language from opinions in legal writing that does not really support what they are trying to convey in their papers. Adversaries should be the first line of defense to this tactic, since adversaries can point out how the opinions cited are actually different from the situation being litigated and how a lawyer is being somewhat dishonest for including the citation.

In other instances, lawyers might mix together different quotations from opinions to make it seem as if a court has decided the matter in a way that might be beneficial to a lawyer. Although doing so might be dishonest, it likely does not carry the same scorn as making up authorities from whole cloth. Most of the time, lawyers who employ this tactic are desperate, and courts as well as adversaries can help police legal professionals who employ such methods.

Again, for a variety of reasons, making up completely fake authorities should not be tolerated in the legal profession. However, it is worth pointing out that lawyers can be guilty of citing to nonexistent authorities in other more innocent ways, and attorneys should avoid this practice whenever possible.

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Rothman Larger HeadshotJordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.

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