ABSTRACT: The Eastern District of the Missouri Court Appeals addresses the use of Artificial Intelligence in preparing appellate pleadings and more specifically, the citation to fictitious legal authority. The court noted that citation to such “bogus” authority was a flagrant violation of a litigant’s duty of candor to the court.

A February 13, 2024 opinion by the Missouri Eastern District Court of Appeals in Kruse v. Karlen addressed for its first time the use of generative A.I. to create fictitious legal authority and a litigant’s citation to that authority.  The trial court in Kruse awarded a former employee, Molly Kruse (Former Employee), over $311,000 in unpaid wages, penalties, and attorneys’ fees in granting her motion for summary judgment for the former employers’ failure to pay her for work performed and two unsatisfied promissory notes given to secure the unpaid salary.  Jonathan Karlen (Former Employer) filed a pro se appeal in the Eastern District, including a Record on Appeal, unsigned Appellate Brief, and Reply Brief, but no Appendix and other required pleadings.  Former Employee filed a Motion to Strike for failure to comply with the Rules of Appellate Procedure on multiple issues, including inaccurate citations and fabricated legal authority, which the court took with the appeal.   

The Court of Appeals first noted that the Former Employer’s pleadings nearly completely failed to comply with the Rules of Appellate Procedure.  Despite being granted an extension of time to file the required Appendix on appeal, as of the date of the opinion it had still not been provided to the court.  Former Employer further infringed the appellate rules by failing to articulate his Points Relied On for appeal and failing to follow specific requirements for properly preparing a Statement of Facts, Statement of Issues, Table of Contents, and Table of Authorities.  All of these were grounds for the Eastern District to dismiss the appeal.  To make matters worse, Former Employer filed a reply brief containing fictitious case citations, in which he admitted to hiring a supposedly licensed California legal “consultant”, but denied knowing the consultant would use A.I. in identifying relevant caselaw.                

As such, the Eastern District addressed for its first time a litigant’s citation to legal authority fabricated by using generative A.I.  By way of example, the court noted that Former Employer’s brief cited a quoted portion of a purported Missouri opinion Smith v. ABC Corporation.  Both the legal quotation and the case itself are nonexistent, the case citation belonging to a Texas state court family law opinion.  The Eastern District continued to note that Former Employer’s brief included citations to twenty-two fictitious cases, and only two citations to genuine caselaw.    

Not surprisingly, the Eastern District noted that the citation to “bogus” legal authority constituted a flagrant violation of Former Employer’s duties to the court.  Citing Rule 55.03, the court stated that by maintaining a claim, an attorney or party certifies that the legal contentions are supported by existing law or non-frivolous argument.  As such, citation to fictitious authority, to either persuade a court or used against an opposing party, is an abuse of the adversarial system.  For the significant violations of Rule 84.04 the court dismissed the appeal.        

Following the dismissal, the Eastern District continued to the matter of sanctions for filing a frivolous appeal.  Noting its discretionary authority to award monetary damages to the Former Employee, the court explained that an appeal is frivolous when it is so deficient that it strains the resources of the court and the opposing party.  The appellate court pointed out that the court routinely grants unrepresented litigants reasonable accommodations so long that the court does not act as advocate, but Former Employer’s appellate brief went beyond simply faulty pleadings.  His actions required Former Employee to expend unnecessary resources to, among other things, identify fabricated cases submitted to the court in support of what the Eastern District characterized as an appeal wholly lacking in merit.  The court determined that awarding Former Employee damages towards attorneys’ fees of $10,000 as an appropriate message to others regarding the importance of compliance with court rules and providing the court with authentic authority supporting meritorious arguments. 

In Kruse, the Eastern District made clear that the use of A.I. to generate fictitious authority would not be tolerated.  Practitioners should note that as generative legal A.I. continues to evolve into greater capacities and expansion into diverse platforms, they must be mindful of its use both for themselves and by other parties in litigation.