A federal appeals court on Wednesday expressed frustration that lawyers continue to submit briefs containing AI-generated fictitious case citations and other hallucinated material, saying the problem “shows no sign of abating.”
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A three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals made that observation as it sanctioned Heather Hersh of FCRA Attorneys $2,500 after concluding she used artificial intelligence to draft much of a brief she filed in a case and then failed to verify the accuracy of the content it generated.
Hersh, who did not respond to a request for comment, had filed the brief as part of an appeal of a sanctions award a judge had imposed on the attorney who founded her firm, Shawn Jaffer, and his law firm, then known as Jaffer & Associates, in a lawsuit accusing a lender and a credit reporting agency of Fair Credit Reporting Act violations.
A federal judge in Texas had ordered Jaffer and his law firm to pay the defendants a combined $23,000 in attorneys’ fees after concluding he had not done even a minimal investigation of his client’s claims before filing the lawsuit.
The 5th Circuit later overturned that sanctions order. But before it did so, it issued a show-cause order against Hersh after identifying 21 instances of fabricated quotations or serious misrepresentations of law or fact in her brief.
U.S. Circuit Judge Jennifer Walker Elrod, writing for the panel, said Hersh’s response was “disappointing,” as she claimed she relied on publicly available versions of the cases that she believed were accurate and identified several well-known legal databases as leading to the inaccuracies.
Elrod called Hersh’s response “not credible” and “misleading in several respects” and said she only admitted to using AI when she was later specifically asked whether she used it. Had she accepted responsibility and been more forthcoming, Elrod said the court likely would have imposed lesser sanctions.
“However, when confronted with a serious ethical misstep, Hersh misled, evaded, and violated her duties as an officer of this court,” Elrod wrote.
The judge said cases like Hersh’s demonstrated that AI-hallucinated case citations “have increasingly become an even greater problem in our courts,” despite nearly three years of news stories about similar incidents since the first high-profile case in 2023.
She cited a database maintained by French lawyer and data scientist Damien Charlotin that, as of Wednesday, listed 239 cases of AI-generated hallucinations in filings submitted by lawyers in the United States.
Elrod noted that the 5th Circuit had considered adopting what would have been a first-of-its-kind rule at the appellate level regulating the use of generative AI by lawyers appearing before it, but opted against doing so in 2024, concluding existing rules governing lawyers were sufficient.
“If it were ever an excuse to plead ignorance of the risks of using generative AI to draft a brief without verifying its output, it is certainly no longer so,” Elrod wrote.
The case is Fletcher v. Experian Info Solutions, 5th U.S. Circuit Court of Appeals, No. 25-20086.
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