ATTORNEY AND CLIENT:  Enough Is Enough: Florida Supreme Court Amends Rules to Combat AI Misuse

Jason Holder—Senior Attorney

     Much like their sister jurisdictions, Florida’s courts have seen an alarming increase in the citation of nonexistent caselaw stemming from the use of generative artificial intelligence by both attorneys and pro se litigants. See, e.g., Goya v. Hayashida, 418 So. 3d 652, 655 (Fla. 4th DCA 2025) (Party’s brief cites cases “for the proposition that a party claiming inherited property must provide documents of transfer or other formal proof of inheritance. These cases do not exist, and no cases stand for that proposition or various other contentions in her brief.”); Russell v. Mells, 426 So. 3d 913, 921 (Fla. 2d DCA 2025) (holding that attorney “fundamentally abdicated” duty to the court and client by submitting a filing without verifying that the three cases cited said what was claimed and referring the matter to the Florida Bar “to proceed as it deems appropriate”); Hessert v. Hessert, No. 6D2026-0121, 2026 Fla. App. LEXIS 2188, at *1-2 (6th DCA Mar. 20, 2026) (“[T]he petition filed by Petitioner cites to thirteen cases. Only four of the cited cases both exist and are cited for legal propositions that the cited cases actually represent. Five of the cited cases do not exist. Four of the cited cases are cited for legal propositions that the cited cases do not actually represent.”); Young v. AP, No. 25-CA-352, 2025 Fla. Cir. LEXIS 2476, at *30-32 (Aug. 29, 2025) (hallucinated cases found in motion for leave to amend); Rodriguez v. Baylis, No. 2025-CA-004973-O, 2025 Fla. Cir. LEXIS 2738, at *3-4 (Sept. 10, 2025) (pro se plaintiff appeared to have included artificial intelligence research and an AI platform hallucinated case that did not exist, but concluding that party “made an honest and genuine mistake as a pro se or self-represented litigant without the resources of a licensed attorney lacking any malice or bad faith”). As explained by one judge, “[c]hatbots are going to get better, and that's going to make these problems worse. The question now must be how to address them on the front end.” Gouveia v. Meridian Fin. Invs., LLC, No. 4D2025-0843, 2026 Fla. App. LEXIS 2306, at *8, 15 Fla. L. Weekly D 600 (4th DCA Mar. 25, 2026) (Lott, J., concurring).

Charlene Hicks—Senior Attorney

     “During the first 100 days of the second Trump administration, district courts issued approximately 25 universal injunctions.” Trump v. CASA, Inc., 606 U.S. 831, 840, 145 S. Ct. 2540, 2550 (2025). A universal injunction refers to the controversial practice wherein a single federal district court judge enters an injunction that takes effect throughout the nation. Not surprisingly, this practice induced chaos. “By the end of the Biden administration, we had reached ‘a state of affairs where almost every major presidential act [was] immediately frozen by a federal district court.’” Id.

Brett Turner—Co-President

     Much attention has been paid in recent months to the misuse of artificial intelligence (“AI”) software by attorneys. But what about the use of AI software by judges?

Becky Schanz—Senior Attorney

    As recently noted by Judge Jed Rakoff, “[g]enerative artificial intelligence presents a new frontier in the ongoing dialogue between technology and the law.” United States v. Heppner, 25 Cr. 503 (JSR), 2026 U.S. Dist. LEXIS 32697, at *14 (S.D.N.Y. Feb. 17, 2026). Courts are just beginning to wrestle with the use of artificial intelligence (“AI”), but a few recent cases address whether privilege applies to AI use.

Paul Ferrer—Senior Attorney

     The common law is, by definition, judge-made law. See, e.g., Ballentine’s Law Dictionary (3d ed. 2010) (defining “common law” as “[t]hose principles, usages and rules of action . . . which do not rest for their authority upon any express or positive statute or other written declaration, but upon statements of principles found in the decisions of the courts”). The Supreme Court of Virginia has long expressed that “[o]ne of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court.” Surratt v. Thompson, 212 Va. 191, 193, 183 S.E.2d 200, 202 (1971) (quotation marks omitted). The court has consistently expressed this understanding of the protean nature of the common law despite a Virginia statute mandating that “[t]he common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.” Va. Code Ann. § 1-200. Thus, the court has indicated that Code § 1-200 “does not mean that common law rules are forever chiseled in stone, never changing. The common law is dynamic, evolves to meet developing societal problems, and is adaptable to society’s requirements at the time of its application by the Court.” Cline v. Dunlora S., LLC, 284 Va. 102, 106-07, 726 S.E.2d 14, 16 (2012) (quotation marks omitted). And yet, in Under Wild Skies, Inc. v. NRA of AmericaUnder Wild Skies, Inc. v. NRA of Am., 304 Va. 310, 319, 915 S.E.2d 514, 519 (2025), the court declined to incorporate the universally well-regarded doctrine of adequate assurance into the Virginia common law, ostensibly because “[t]he decision to adopt a new doctrine applicable to all contractual disputes is a policy decision that is more appropriately left to the legislature.”

Lee Dunham—Senior Attorney

     On February 5, 2026, Judge Failla of the United States District Court for the Southern District of New York issued an Opinion and Order in Flycatcher Corp. Ltd. v. Affable Avenue LLC, 24 Civ. 9429 (KPF), 2026 U.S. Dist. LEXIS 23980 (S.D.N.Y. Feb. 5, 2026), imposing severe Rule 11 sanctions on attorney Steven A. Feldman for repeatedly filing apparently AI-generated submissions with false citations, including an initial motion to dismiss and several more briefs in response to the court’s Order to Show Cause why the initial motion should not be dismissed.

Matthew T. McDavitt—Senior Attorney

CIVIL PROCEDURE: UFOs, Aliens, and Helicopters: A Study in Improper Parties

      By federal complaint filed January 9, 2013, plaintiff Shirley Durante—clearly suffering from some unstated mental health issue—sued defendants: (1) Massachusetts real estate broker Todd Sandler, (2) UFOs, (3) Aliens, and (4) Helicopters, alleging that aliens from Jupiter and Mars were harassing her:

Shirley Durante . . . complains that helicopters, UFOs, and aliens have been harassing her with laxatives and bright lights which burn her face and eyes. This harassment is destructive to her property as well, damaging three car mirrors. It appears that in some unspecified way Todd Sandler and family of Randolph, Massachusetts, have something to do with this harassment. Durante has written to the Department of Homeland Security and Senator Susan Collins about this harassment, but apparently has received no assistance. She has also gone to the Maine state courts seeking relief from the harassment. She has now determined that her recourse is to file a federal lawsuit.

Paul Ferrer—Senior Attorney

        The United States Supreme Court decided a crucial question concerning a federal court’s removal jurisdiction in Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22 (2025). If a complaint filed in a state court asserts a claim or claims under federal law, then the defendant may remove the case to the U.S. district court for the district and division embracing the place where the state action was filed. See 28 U.S.C. § 1441(a). And if the complaint also asserts a claim or claims under state law arising out of the same facts, then the federal court can exercise “supplemental jurisdiction” over those claims and adjudicate them too. See 28 U.S.C. § 1367(a). But what happens, as the Supreme Court put the question in Royal Canin, “if, after removal, the plaintiff amends her complaint to delete all the federal-law claims, leaving nothing but state-law claims behind? May the federal court still adjudicate the now purely state-law suit?” 604 U.S. at 25.

Paul Ferrer—Senior Attorney

         The United States Supreme Court has limited one of the U.S. Securities and Exchange Commission’s (SEC’s) major tools for penalizing securities fraud by ruling that the Seventh Amendment requires a jury trial when the SEC seeks civil penalties against a defendant. See SEC v. Jarkesy, 144 S. Ct. 2117 (2024). And the decision may have much more far-reaching implications by calling into question the ability of other government agencies to seek civil penalties.

            Three of the primary federal statutes regulating the registration and trading of securities—the Securities Act of 1933, the Securities Exchange Act of 1934, and the Investment Advisers Act of 1940—all contain antifraud provisions that target the same basic behavior: misrepresenting or concealing facts that would be material to an investor’s decision. These statutes are enforced by the SEC, which may bring an enforcement action either (1) in its own forum, an administrative proceeding, or (2) in a federal court action. In federal court, a federal judge presides, a jury decides the facts, proceedings are governed by the Federal Rules of Evidence, and discovery is had under the Federal Rules of Civil Procedure. By contrast, when the SEC adjudicates the matter in-house, its Division of Enforcement prosecutes the case and the SEC presides and finds the facts, although the SEC may delegate its role as judge and fact finder to one of its administrative law judges (ALJs). The SEC or its ALJ decides discovery disputes and determines the scope and form of permissible evidence pursuant to the SEC’s own Rules of Practice. The SEC can, but does not have to, review the ALJ’s findings and conclusions. Judicial review is available but is deferential.

Trish Sifka—Senior Attorney

          It should be no surprise that a federal appellate court generally does not have jurisdiction to review immediate appeals of denials of motions for summary judgment. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949); Iko v. Shreve, 535 F.3d 225, 234 (4th Cir. 2008) (noting this exception to the rule that "interlocutory appeals are generally disallowed"). “But, under the collateral order doctrine, appellate jurisdiction extends to ‘a narrow class of decisions that do not terminate the litigation,' but are sufficiently important and collateral to the merits that they should 'nonetheless be treated as final.'" United States ex rel. Citynet, LLC v. Gianato, 962 F.3d 154, 158 (4th Cir. 2020) (“Gianato”) (citing Will v. Hallock, 546 U.S. 345, 347, 126 S. Ct. 952, 163 L. Ed. 2d 836 (2006) (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S. Ct. 1992, 128 L. Ed. 2d 842 (1994))).