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Artificial Intelligence (“AI”)  made legal and mainstream news in 2023.  In a highly publicized and widely discussed case, Mata v. Avianca, Inc., the United States District Court for the Southern District of New York sanctioned attorneys for citing to non-existent, fake cases generated by Open AI’s ChatGPT.  Despite Mata’s stark warning to the bar, AI-generated fake caselaw continues to appear in litigation nationwide.  

In Matter of Samuel, the Kings County Surrogate’s Court confronted a lawyer’s careless use of AI in a contested probate proceeding.  The objectant’s counsel submitted “fake caselaw resulting from Artificial Intelligence hallucinations” in reply papers submitted on a summary judgment motion.  Five of the six cases cited in in the objectant’s reply papers were either erroneous or non-existent.  The court held that counsel violated the rule against “frivolous” litigation under 12 NYCRR 130-1.1 by making material misstatements to the Court concerning case law.

Surrogate Graham was careful to point out that AI is not, in and of itself, the problem.  While the court was “dubious” about attorneys using AI to prepare legal documents, it focused squarely on counsel’s failure to examine and scrutinize the ostensible authorities that AI cited in support of the objectant’s arguments.  The court found that counsel had sufficient time to review and analyze the AI generated reply papers and conduct a simple cite check on reliable legal search engines, which would have revealed AI’s reliance on non-existent, fake caselaw.  Counsel’s conduct, and not AI, was the real problem. Continue Reading Matter of Samuel – Artificial Intelligence Hallucinates and an Incapacitated Person Makes a Will

For trust and estate litigators, the federal court experience invariably begins – and sometimes ends — with an analysis of the probate exception to federal diversity jurisdiction.  Two recent Southern District cases examine the probate exception.  Part 1 of this blog series introduces the probate exception and discusses an “easy” case; Woitovichv. Schoenfeld.  Part 2 of this series, coming soon (hopefully), examines the tougher case of Bulgariv. Bulgari. Continue Reading The Probate Exception to Federal Jurisdiction – From Woitovich (Part 1) to Bulgari (Part 2)

Courts greatly appreciate when parties settle their disputes by agreement.  Settlements alleviate the courts of the burden of overwhelming caseloads, and further the public policy of encouraging parties to order their affairs by contract rather than relying on statute and common law.  As the Surrogate’s Court recently reiterated in Matter of Eckert, “stipulations of

The COVID-19 pandemic has forced litigants to wrestle with the dilemma of waiting for a jury trial or moving forward more expeditiously by way of a bench trial.  Recently, the Appellate Division, Fourth Department, and the Court of Appeals passed on the issue of undue influence arising out of a Surrogate’s Court bench trial. Frank Santoro discusses the decisions in our latest post.
Continue Reading The Court of Appeals Takes a Look at an Undue Influence Claim from a Non-Jury Trial

When clients ask whether they can “sue for legal fees,” the courts continue to reiterate that the answer is almost always no; that the American Rule still controls.  In our latest post, Frank Santoro discusses recent decisions in the contexts of trusts and estates litigation and guardianship litigation that speak to fee shifting and exceptions to the American Rule. 
Continue Reading The Answer is Almost Always No

My colleagues have written on the enforceability of in terrorem clauses, and the courts continue to confront challenges in reconciling the testator’s intent to impose an in terrorem condition with the rights of beneficiaries to challenge the conduct of their fiduciary. The New York County Surrogate’s Court’s recent decision in Matter of Merenstein provides further

It is easy to be cynical about the “pots and pans,” “tchotchkes,” and “junk” – – the property that is often divided in a contentious manner at the bitter end of an estate litigation, or sometimes forgotten after years of litigation. An ongoing dispute in one of my cases led me to reflect on a

In Gersh v. Nixon Peabody, LLP, the court addressed a legal malpractice claim brought by a decedent’s surviving spouse in connection with the couple’s estate planning. After settling a claim with the decedent’s children from a prior marriage that was made based on a separation agreement between the decedent and their mother, the surviving spouse alleged that the attorneys, who knew the decedent had been married twice before, failed to properly investigate his duties under separation agreements in the course of the representation. Frank Santoro discusses the case in our latest post.
Continue Reading Speculation, Estate Planning, and Legal Malpractice

Very often, when the proponent of a will (and sometimes even the attorney-draftsperson or witness) is questioned about the decedent’s mental state and the decedent’s instructions, the reflexive response is that the decedent was “as sharp as a tack” and was “as clear as a bell.” But overselling a decedent’s capacity and clarity of communication using tired metaphors may result in the trier of fact becoming suspicious of the proponent, perhaps perceiving the proponent as dishonest where other evidence reveals that the decedent likely had diminished capacity. Frank Santoro discusses the issue of testamentary capacity in our latest entry.
Continue Reading Sharp as a Tack . . . Clear as a Bell