In A Per Curiam Published Order, Concurring Justice Touches On Some Other Issues In The Case.
The D.C. Circuit federal appeals court has published a per curiam order in Douglas v. Deutsche Bank National Trust Co., No. 2023-CAB-005422 (D.C. Cir. Sept. 3, 2026) where it sanctioned a firm representing an appellee (federal parlance for respondent, if the matter was in California state court) by striking appellee’s brief containing AI hallucinations. (It would not allow filing of a corrected brief, because that would mean there was no penalty for AI hallucinations.) Aside from having a scholarly discussion of AI proliferation and the problems with relying on AI without careful review, the panel found that the “signatories” on appellee’s brief also bore responsibility for the hallucinations, even though the primary attorney on appeal tried to take ownership of the mistakes and did offer mea culpas to the appeals court. Here is what the D.C. Circuit said as the injury resulting from AI hallucinations: “ The harm inflicted by the submission of hallucinated authority cannot be overstated . . . . A briefing containing fake citations masquerades as useful advocacy, but it misdirects the court, burns time and resources, and sows confusion while the court gets to the bottom of the matter. By then the damage is done: the court is left without real guidance from one side of the adversarial equation and the client is left without a credible advocate.”
Senior Judge Glickman concurred, but he did address other issues which he found relevant. He had doubts that there was express authority to issue sanctions for AI hallucinations alone, discussing various provisions and inviting an amendment to D.C. appellate local rules. Judge Glickman also did not believe penalizing all brief signatories was fair because it would penalize contributors who did their sections well and would make costly, burdensome multiple checking of briefs by various attorneys the undesirable norm. Instead, he believed firm training of attorneys would be a salutary safeguard. But he then went on to comment about “The Greater Concern.” He cautioned against attorneys using AI to draft a brief for them, because it takes out a lawyer’s unique experience in writing and crafting persuasive arguments—resulting potentially in both hallucinations and inaccuracies.