Litigation Nation

Litigation Nation - DoNotPay's AI lawyer stunt cancelled after multiple state bar associations object - Ep. 35 (Show Transcript)

===

Jack Sanker: Welcome Litigation Nation. I'm your host, Jack Sanker, along here with Luke Behnke. As always, this is the show where we talk about and recap the news of the week, whatever's happening in the legal sector, keep you updated. Luke, what do we have up this week?

Luke Behnke: Prosecutors in New Mexico are downgrading the manslaughter charges against actor Alec Bald.

Luke Behnke: Uh, preliminary reports out of Ohio suggest the catastrophic trained derailment could have been avoided, and

Jack Sanker: a tech company promising an AI lawyer faced a significant backlash from lawmakers, prosecutors, and state bar associations after its c e o promises to provide in court legal advice. As a reminder, you can always find us everywhere you get your podcasts, and here's what you need to.

Luke Behnke: Quick update on the Alec Baldwin matter. The manslaughter charges against him relating to the 2021 fatal shooting on the set of the movie rust have been downgraded by prosecutors in New Mexico, which will reduce the prison time the actor could face for the death of the movie Cinematographer Helena Hutch.

Luke Behnke: Baldwin is released on personal recognizance, which is a release without the requirement of, uh, posting bail. Essentially, it's based on a written promise by the defendant to appear in court when required to do so. The terms of Baldwin's release require him to abstain from alcohol. He also can't own a gun or speak with other witnesses of the.

Luke Behnke: Prosecutors also downgraded the charges against the movie's armorer. Hannah Gutierrez Reid. As of the date of this podcast, both Baldwin and Gutierrez Reid have pleaded not guilty to those criminal charges. Separately, members of Hutchinson's family are suing Baldwin, the movie's, production company, and others over her death in civil court in Los Angeles alleging the defendant's caused intentional infliction of emotional distress, negligence and loss of consortium, Baldwin and the production company have already settled one civil suit with Hutchins widower.

Luke Behnke: Jack, are you, uh, surprised at all by the reduction in charges against Baldwin in the.

Jack Sanker: No, I, I think we covered that, um, pretty well. A couple episodes back. In fact, we, I think may have called our shot on this one. Uh, it's, the initial charges were some version of first degree, um, intentional homicide, if I recall.

Jack Sanker: And, you know, that just clearly was not the case here. Um, civil suits though, uh, I think have a lot of legs and I think that those, uh, those are gonna go pretty far in my opinion. What do you.

Luke Behnke: Yeah, I was thinking maybe we explained that more for our listeners, right? Because I think, uh, a lot of folks that maybe aren't involved in the legal world think, okay, you've got this criminal case and that's it.

Luke Behnke: Um, and so, but it's, but that's not always the case, right? I mean, there are times where, um, you know, maybe for whatever reason, you know, a defendant would be found not guilty in a criminal case, but that doesn't mean that the d. , you know, is walking away from this thing, you know, Scott free. And, and this might be one of those situations.

Luke Behnke: I mean, we know that we saw Baldwin sort of already settled with the deceased's widower, um, and it looks like now he's got, you know, other suits to deal with from other family members on the civil side. So, you know, at the end of the day, even if he's found not guilty of the, of these manslaughter charges, Still gonna cost him a lot of money.

Jack Sanker: Yeah. I, I would say that the prime example of, of what you mentioned, uh, of the defendant, um, being found not guilty in the criminal context, but then being found, found liable in a civil context is OJ Simpson.

Luke Behnke: Oj. Yeah, the Juice,

Jack Sanker: that's the, that's like the, the, the quintessential example that comes to mind when I think about that. So this could very well, you know, be a scenario and I think it probably will be where there's quite a lot of civil liability imposed against Baldwin, the production crew and the staff and whatever, without much

Luke Behnke: criminal liability. Do you have any problem with, uh, and maybe it's too early to say, I don't know, but does this seem to you like it's.

Luke Behnke: you know, these prosecutors in New Mexico are trying to get their 15 minutes of fame here.

Jack Sanker: Uh, I think that overcharging for the sake of getting in front of a camera and a press conference and everything like that, man, this is gonna make people mad. Um, I think that that is endemic among, uh, prosecutors and especially ones with political aspirations and you see it everywhere.

Jack Sanker: So, um, Boy, I, people are not gonna like to hear that, but, uh, I, yes I do. . Well,

Luke Behnke: that, I mean, that's interesting I'm asking cuz I really don't, you know, I have, I have next to zero experience with, you know, criminal law and prosecutors, and I know we've got a lot of, you know, people in, in our firm and across, you know, the industry in general that have a lot of experience with, uh, criminal law.

Luke Behnke: And I'm wondering like, man just seems like this is kind of. , you know, this, it just seems like a case that I wouldn't necessarily take, and it's like, why, what are your, what are the motivations for, uh, you know, for, for charging, uh, you know, Baldwin in a case like this? And, and that's interesting. I, I, I suspected that that was the case, but I, you know, I didn't know.

Luke Behnke: That's why I'm asking.

Jack Sanker: There's something else going on here besides a neutral administration of justice, I think, um,

Luke Behnke: whatever it is. Oh, yeah. Okay. So a statement released by Heather Brewer. A spokeswoman for the New Mexico First Judicial District Attorney's office. So, you know, uh, mouthpiece for the prosecutors said the enhancement charge was being dropped to avoid further litigious distractions by Mr.

Luke Behnke: Baldwin and his attorneys. Uh, adding that the prosecution's priority is securing justice, not securing billable hours for big city attorneys Close. And I'm like, give me a break. Like, are you, like, you are the one charging

Jack Sanker: him. You know, you the one time it is, it is like totally justifiable to, to treat the case.

Jack Sanker: Like it's the most important case in the world and it's, you know, the consequences are grave is when you're being accused of murder. You know, . Yeah, that's, yeah. It's like this is, uh, absolutely a timer. They should be taking this seriously and billing as many hours as they need because it's Alec Baldwin who's paying.

Jack Sanker: You know, it's, it's not a frivolous defense. And if I'm Alec Baldwin, I'm like, please bill around the clock. Cause I don't wanna go to prison for murder

Luke Behnke: According to Reuters, the chair of the N T S B, that's National Transportation Safety Board, said the trained derailment that spilled toxic chemicals in an Ohio town might have been avoided if the railway company's alarm system had given engineers an earlier warning that bearings were over. In its preliminary report, the N NTSS B said the train engineer applied brakes as soon as an alarm rang to warn of an overheated axle on the Norfolk Southern train NT SB chair, Jennifer Houndy told reporters in Washington had there been a detector earlier that derailment may not have occurred close.

Luke Behnke: The incident prompted the evacuation of thousands of people, and of course, raises serious health. , Norfolk Southern, the operator of the train said in an emailed statement to Reuters that it is cooperating fully with the N T S B and that its system to detect overheated bearings was operating normally in the area where the accident took place, and also said its warning system is among the most sensitive in the industry.

Luke Behnke: Now, as you can imagine, the derailment. Sparked a political battle and a blame game over railroad safety regulations with residents voicing concerns over the long-term health impact of the millions of pounds of carcinogenic chemicals spilled in their town. Hamy said that in 2021 there were 868 derailments across the United States of freight cars in the same class as the Norfolk Southern Train that wrecked a number that she says is far too high.

Luke Behnke: In the result of both the industry and government not implementing. Previous N TS B safety recommendations For context, the rail industry says 99.9% of all hazardous material shipments reached their destination without incident, and the hazmat accident rate has declined substantially by some 55% since 2012.

Luke Behnke: Now according to the Reuters story, some rail safety requirements were withdrawn under former President Donald Trump. And now some Republican critics of the East Palestine response who previously opposed rail regulations have now expressed an openness to new rules. President Joe Biden and his administration of Sid Norfolk Southern must pay for the damage and cleanup efforts, and the EPA even ordered company officials to attend town hall events after executives failed to attend an earlier meeting in East Pales.

Luke Behnke: So Jack, on this podcast, we've touched on, uh, company responsibility for societal ills, and I know with your practice you're heavily involved with transportation issues. Uh, any thoughts on the accident and, and where we go from here?

Jack Sanker: I mean, it's, it's tragic. Um, you know, this is one of those things where like, we're not gonna know how bad it is until years or decades down the road.

Jack Sanker: I saw reports that, uh, uh, that various chemicals were showing up, uh, in the Ohio, hi Ohio River, um, you know, downstream of, of Palestine, Ohio. And if, if I remember correctly, something like 10% of all Americans live in the Ohio River Valley and are, you know, that's where they're drinking water comes from.

Jack Sanker: Of course it's filtered and everything else, but still, it's just one of those things where like, I don't think we're gonna know how bad this is until way down the road. In terms of whose fault it is? I, I don't know. I mean, I, you want to just kinda let the process play out in terms of investigation, but, uh, I do know that there's been loud criticism from, um, From a lot of folks, uh, there's been criticism of the way in which the Biden administration handled the recent rail strike.

Jack Sanker: Um, which, you know, he kind of dropped the hammer on that. And one of the complaints that the, the unions had were safety complaints. I don't know how relevant that was to this accident after the fact. I know a lot of people are saying, C, you know, we should have got, we should have taken care of this.

Jack Sanker: That's what we were striking for. I don't know if they actually were or not. . But, uh, and then I see other folks complaining of the, you know, what you mentioned, which is the, uh, certain deregulation that happened under the Trump administration. I have no idea if either one of those caused or contributed to the accident.

Jack Sanker: Um, however, I think that everyone ought to be able to agree that. Even if 99.9% of these freight trips, cuz carrying hazardous chemicals are, are mostly fine, the one time it happens is catastrophic. So you have to, uh, the margin of error is still too big and, and whatever needs to happen needs

Luke Behnke: to happen.

Luke Behnke: So on the one hand it's like, can anything just be an accident anymore? Right? Uh, on the other, which is sort of what the rail industry is saying, right? They're saying, look, most of what we do is. , you know, is fine. Like nothing goes wrong. Um, and that's, you know, that's great for a lot of things, but you're right.

Luke Behnke: When you've got a situation where it's like, you know the point, uh, 1% of of times that something does go wrong, I mean, this is catastrophic. People are gonna lose their homes. I mean, it's gonna be like a, yeah, I guess I don't, I'm not an environmental expert, but if it's another, you know, Cher Noble.

Luke Behnke: situation, right? Where you just, you've just got the, you've just wiped a, a city off the map. Um, and, and you know, you got these pollutants getting into waterways, which means that they're gonna spread, you know, far and wide. You're right. It, it's just, it's unacceptable to have an accident of this magnitude at all.

Luke Behnke: Right? And if that means like this, that this train has to creep across the country, so these things don't overheat well then so be it. Um, you know, it's gotta be the situation where 100% of all hazardous material shipments reach their destination without incident. Um, and so, yeah, I suppose, you know, I don't know.

Luke Behnke: I, I guess I would come down on, on the side of, um, of making sure this never happens, right? I mean, saying that, saying that nothing goes wrong most of the time, um, doesn't cut it in this situation, in my opinion, completely.

Jack Sanker: Up next. This one has been sort of percolating my brain for a few weeks now. I've done some writing on it, some research, and was recently interviewed for a tech journal that I hope gets published before this episode comes out. Um, but here's what we're talking about. There's a company called Do Not. If you go to their website, you'll see a banner, which calls it the world's first robot lawyer that's unlike the top of the website.

Jack Sanker: The description goes on to say quote, the Do Not Pay app is the home of the world's first robot lawyer. Fight corporations, beat bureaucracy and sue anyone at the press of a button. So sue anyone. The press of a button is someone who practices primarily on the defense side. That sounds. You know, my own personal nightmare, but I digress.

Jack Sanker: The idea of the app, which is allegedly powered by artificial intelligence of some kind or another, um, can assist in filing certain things in court. But if you go and you actually click on the most popular features, uh, section. I'll read the top 10 on that list to you, or the top five rather. Um, number one is break down the discord phone verification bypass.

Jack Sanker: Number two, how to get fake phone number for Google verification. Number three, Tinder phone number, verification number four, how to get fake phone number for Twitter. Number five, how to find and use fake phone number in four easy steps. Um, so there seems to be, uh, some aspect of this that is prominently.

Jack Sanker: Focusing on, um, getting around verifications for certain websites. Uh, there's the blog section of the website as well, which, here's this last five posts. Number one, how to pay your Houston water bills. Uh, number two, how to remove my case from the internet instantly. Number three, how to recover your your Forgotten Workday password, hassle free.

Jack Sanker: Number four, how to stay in touch with inmates in, uh, number five. Sending money to an inmate has never been easier. ,

Luke Behnke: that's, that's amazing. Jack. It sounds like my search history. , so

Jack Sanker: this is like . So it's, you know, it says it's a robot lawyer, but it's like, I don't know, it doesn't seem like a whole high level of lawyering going on here, but that's kind of besides the point of this story.

Jack Sanker: The app seems like it's at least geared at bypassing. Phone trees for bill payments and disputes along with bypassing annoying verification processes and other applications. I've never used it. Um, I have absolutely no idea how effective it is, but these seem like legitimate applications. And if do not pay and help me, you know, for example, cancel my gym membership, that's, that's great.

Jack Sanker: Uh, the problem is that I've observed from do not PAYE founder, uh, a man Joshua Brow. . Um, he's made some interesting claims recently on Twitter, um, that I've been following, and specifically on January 20th of this year, he tweeted the following. On February 22nd at 1:30 PM history will be made. For the first time ever, a robot will represent someone in a US courtroom, do not pay.

Jack Sanker: AI will whisper in someone's ear exactly what to say. We will release the results and share it after it happens. Wish us luck. So a few things before we jump, jump into what actually happened. Again, I have no idea whether they do not pay works or not. Generally I hope it does. I have no ill will towards the founder of the company or the company or whatever, and everything after.

Jack Sanker: This is just my opinion as a humble observer. So law Twitter kind of jumped all over this because, you know, telling someone what to do in court is tantamount to giving legal advice. Browder defended the product saying that the judge wouldn't even be made aware of it in advance and that the AI wasn't entering an appearance, et cetera.

Jack Sanker: Let's set aside whether this is a good idea or not, and let's set aside whether the software even works or not. I wanna talk about the very basic pri principle that serves to kind of highlight a trend that I expect to see more as AI technologists begin, um, to, you know, quote, move fast and break things.

Jack Sanker: To borrow a phrase from the Great Book by Jonathan Taplin on the subject. So, companies like Uber, uh, come to mind. Do companies like Tesla with its on-road beta testing, Facebook with its data tracking, Google, et cetera, technology companies that quickly expand by maneuvering in legal gray areas and essentially try to out flank regulators by establishing themselves as you know, a valuable service for consumers before regulators can catch up.

Jack Sanker: That's. To make a very long story short, that is a little bit what Uber did with its non-employee driver model, which sort of circumvented Citi taxi cab licensing requirements and continues to push up against the boundary of what's considered a quote unquote employee for purposes of employer liability, et cetera.

Jack Sanker: Uh, and I think that you're going to see this with AI every. AI software products will be preparing tax submissions. We'll be doing basing accounting work, accounting work. And yes, eventually we'll be doing some amount of legal work. I don't exactly know if there's a lot of tech professionals in our audience, um, but if so, Please take hard to what I'm about to say.

Jack Sanker: Please be careful about the ethical and legal Rami ramifications of attempting to disrupt the legal industry. It's not a taxi company, it's not an advertising company. Much of what we do is expressly protected by an even mandated by the US Constitution. These these legal traditions that go back to the English common law go back some 400 years.

Jack Sanker: what happened to do not pay in this scenario is a great example of what I'm talking about. Browder said that he was going to have his company whisper into the ear of pro se litigants while they were in court. After that, according to a number of outlets, he was contacted predictably by a number of state bar associations and prosecutors who basically said to him, Hey, if you do this in our jurisdiction, we're going to put you in.

Jack Sanker: And he tweeted on January 25th, just a few days after his initial announcement. Announcement that quote, good morning, bad news. After receiving threats from state bar prosecutors, it seems likely they will throw me in jail for six months if I follow through with bringing a robot lawyer into a physical courtroom.

Jack Sanker: Do not pay his postponing our court case and sticking to consumer rights. Now, I dunno what these prosecutors actually said to Browder, but I can guess it has something to do with the strict prohibit. against the unlicensed practice of law. And we don't need to get into what the technical definitions of that are, but I, I will point out that the prohibitions against the unlicensed practice of law go back as really as old as this country has existed, and before that, another couple hundred years in England.

Jack Sanker: way back in 1841, the uh, Supreme Court of Illinois, uh, said that the prohibition of unlicensed practice was, quote, not as a restriction upon the citizen or the suitor, but for his protection against the mistakes of the ignorance and the unskilled film, unskilled ness of the pretenders. So while I appreciate what Brower's trying to do, Prohibition on the unlicensed practice of law isn't some tiki tack pro protect protectionist regulation.

Jack Sanker: The rule is kind of a cornerstone of our legal system. It keeps the ill intention, the scammers or the simply amateurs, ignorant practitioners from mucking up our judicial system. I'm not suggesting that's what do not pay is, but I can say with confidence that it doesn't meet the mandatory requirements imposed in all 50 states to show that it isn't like that.

Jack Sanker: Getting rid of lawyers. Kind of the tone of what, uh, do not pay and its supporters have, have been talking about. Getting rid of attorneys would likely require several acts of Congress, and in my opinion, probably a constitutional amendment. It's not as simple as swaying some city council members to not enforce.

Jack Sanker: Licensing requirements, like in the Uber case, et cetera, we'd probably have to change the Constitution. So if you wanna disrupt the legal services industry, there's plenty you can do within the margins. Uh, legal Zoom has been providing boilerplate legal forms for like 10 years now. For example. Um, I'm sure some states will loosen restrictions as.

Jack Sanker: This AI software proves itself. But if your goal is to create a one for one replacement for lawyers and literally have that AI replacement lawyer give in court legal advice to litigants, I think that's about as unrealistic as it comes. And I would be willing to bet is not gonna happen in our lifetime.

Jack Sanker: Um, I know that was a bit of a digression from our usual programming, but uh, Luke, I am interested in your thoughts on this. What do you think of the likelihood of a robot lawyer taking your job in the. , uh,

Luke Behnke: I, I think they're not good, but I, I, the, the, the, the, the Illinois Supreme Court, uh, decision that you cited from, what'd you say?

Luke Behnke: 1841. Yep. Funny how that still resonates today, right? I, I, I think you said it best. This isn't about, you know, sort of protecting, you know, Jack Sanger's livelihood or Luke Bank's livelihood. It's about, uh, making sure that, uh, everyone, you know, gets their, their sort of due process requirement. And I get that the response to that is gonna be, well, you know, if you're proceeding pro se you should be entitled to use whatever information, you know, you think you, you need, you know, in a courtroom.

Luke Behnke: Um, there are, AI is so intriguing and it's so dangerous, right? I mean, there, there are just some spaces where. Um, it's not, it's not gonna work. Um, medicine, you know, kind of comes to mind. Um, and, and I think the legal profession is, is another one of those professions where ai, um, man, maybe not for all of it, but it, it certainly has a long way to go before it's, before it's useful, certainly before it's representing somebody, before a judge or a jury in a courtroom.

Jack Sanker: Yeah. And I, and I appreciated it and I even like embraced the idea of one day being able to, uh, you know, just put in certain parameters into a, an AI prompt box and have it spit out a, a, a, you know, a contract for me, um, which is gonna save the client money, it's gonna save me time. Um, all of that. And I, I think that that's, you know, plausible, that's certainly within the realm of possibility, probably pretty soon.

Jack Sanker: But, um, I, I see this with these, you know, Disruption minded, um, tech entrepreneurs, uh, and I, I it is the difference between the practice of law and these other areas where they've kind of been able to get ahead of the regulators, establish themselves, and then, you know, ask for forgiveness rather than permission.

Jack Sanker: The difference between the practice of law in those industries is that, is everything I've, I've already said, it's, it's in many cases, , constitutionally protected. Um, it's kind of foundational. There's a lot of things that don't work if you get rid of, uh, the right to counsel, the right to cross-examine, um, you know, jury requirements, all these other things that would be called into question if we started just, you know, using algorithms to decide things and argue things.

Jack Sanker: So, uh, I just, I don't think that. , the level of scale is gonna be achieved so quickly, the way that you saw, um, these other tech, tech companies kind of sprout outta the ground and turn into a hundred billion companies over the course of a couple years. I just don't think it's gonna happen in this case. Um, but you know,

Luke Behnke: maybe I'm wrong.

Luke Behnke: Well, let me ask you this. So what is AI designed to do? I mean, is it designed to say, Hey, this is the statute you wanna cite right now? Because at the end of the day, at least in, in criminal trials and most civil trials too, uh, that aren't tried to a judge go to a jury, you still have 12 humans sitting in a box making a decision.

Luke Behnke: You still have a human calling, balls and strike. You know, that's what the judge is supposed to do. And so what, what sort of benefit is AI going to give you in the courtroom? I, I've gotta understand that a little more because if it's, if, if it's just a fancy textbook, um, you know how. .

Jack Sanker: That's great. How helpful is it?

Jack Sanker: Yeah. If, if it's a super effective research assistant, like that's great. You know, if I could, if I could ju find the exact case I'm looking for, you know, right at the moment where I, I really need it. Like, that's fantastic and I, if someone offers that service and eventually someone will, I mean, I'm sure that, you know, we'll be subscribing to it.

Jack Sanker: Um, but that's very different. whispering in someone's ear, and telling, you know, what to say to a judge, um, when asked, you know, certain questions and everything else. And as you and I know, the, and anyone who's listening who practices know is like just being able to recite what the law is and then, you know, loosely apply the facts to that law.

Jack Sanker: I mean, , less than 50% of which you would consider to be advocacy. Uh, probably, you know, that's, that's not going to get you far, um, in my opinion. So, you know, even if this thing worked as advertising, I don't know if it does or doesn't, but even if it did, I, I, I just, I don't see it being effective. .

Luke Behnke: Yeah, I agree.

Luke Behnke: I mean, good trial lawyers will tell you. I think, I mean, I've been around several of them, you know, in my lifetime, knowing the law or citing the correct law is, is part of it. But it's not so much, well, it's not what you say, it's how you say it. Right. It's how you deliver that message. It's body language, it's all that stuff.

Luke Behnke: And so I, I don't know how AI is gonna help, uh, litigant. have better, you know, body language in a courtroom. It's not gonna help 'em be more persuasive. It, it might help 'em get to the right, uh, you know, statute or case. Um, but beyond that, I, I don't know how effective it would be. And I, I, you know, I gotta, I guess I've gotta sort of plead ignorance on this because it's such a new, it's certainly something that I've been thinking about because you see it all over the place.

Luke Behnke: It's ubiquitous, but I'm, I'm struggling to figure out. What the advantages, um, of, of ai? Like what's it designed to

Jack Sanker: do? Uh, I think right now it's primarily designed to be a landing spot for, uh, the crypto people that all got, uh, Washed out over the past six months. And so they're all like, formerly crypto person is now like the current AI person.

Jack Sanker: Um, , at least as far as I could tell. But, uh, but yeah, I think that that's, I think you're exactly right.

Luke Behnke: That's the show for today. Uh, you could find us wherever you get your podcasts. As always, if you have thoughts on any of these stories, let us know what you. Can either leave your comments below or email us, talk to you in a couple weeks.