Jeff Lewis (00:27)
Welcome everyone, I am Jeff Lewis.

Tim Kowal (00:28)
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists and as uncertified podcast hosts, we try to bring our audience some legal news and perspectives they can use in their practice. If you find this podcast helpful, please recommend it to a colleague.

Jeff Lewis
give us a kind review on Apple podcasts or wherever you listen to your podcasts.

Tim Kowal (00:46)
All right, Jeff, it's been some time before we did a cases and tidbits episodes. but let's get right into a couple that I.

I've been looking forward to talking with you about, concerning whether briefing arguments in legal briefs can be copyrighted or subject to plagiarism, I guess, is ⁓ more accurate way to depict it. Let's jump right into this case in Kelly versus Tao. It's an unpublished opinion, but it had some pretty spicy language from the court with the upshot that it's unethical to paste from a legal article without attribution.

So what happened here is there was a pro-per appellant in Kelly versus Tao who challenged a sanction against him for filing an improper discovery motion. the basic facts there are pretty unremarkable, but digging into the record, the appellate court noted that in the respondents motion for sanctions in the trial court, the legal standard section of the motion had quoted liberally from a 2017 article written by one Janet Gusdorf.

The court took this accusation very seriously. It said, take judicial notice of the existence of the article, which confirms the pro-Per Kelly's assertion of plagiarism because the trial court brief only made a handful of insubstantial punctuation or word changes and otherwise repurposed portions of the article without attribution. And ultimately the respondent apologized. So the court issued no sanction.

But here's the paragraph where the court admonished counsel against this practice of using contents of a legal article without any substantive change and without attribution. Quote, to say the least, the unattributed use of another attorney's material is of concern to this court. It is a serious breach of ethics and a violation of rule 8.4 of the rules of professional conduct which

provides it as professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation. Court cites some other authority to this effect about such violations. Obviously, this type of conduct is unacceptable and in the court's view is sanctionable pursuant to its inherent powers. Actually, that's...

parenthetical to one of the cases it cites. here's the court continues, because counsel readily took responsibility for the unattributed use of Miss Gustor's language and apologize for what he described as an inadvertent error, we elect not to impose sanctions. We strongly caution counsel, however, to ensure that no further acts of plagiarism infect his briefing in this or any other court. So the upshot is don't use unattributed work product in your briefs.

Jeff, I wanted to ask you about this because I was not persuaded that this is sanctionable conduct. And I certainly don't think it's conduct involving dishonesty, fraud, or deceit. My view is that when an attorney signs their name at the bottom of the brief, it's not the same thing as signing their name at the bottom of a legal article or a magazine article or a book. It's not like they're saying that I

personally wrote this, this is my original work product, these are my original creative ideas. That's not what the signature requirement at the bottom of a legal brief is about. It's not taking credit for original creative ideas. It's saying that these are valid, colorable legal arguments supported by facts that I have independently, reasonably verified. That's the purpose of the signature requirement, not

not a copyright issue and not a plagiarism issue. So, I think it is misidentifying the problem to call this a plagiarism issue. If the legal standards section were wrong, if it was a misstatement of the law, then we've got a problem and it would be no excuse to say, well, I lifted it from some other article written by some other attorney and it was a reputable attorney or a reputable source and so I believed it was right on that basis.

I think that would be sanctionable because it doesn't matter if some other attorney thought it was appropriate. You have to independently confirm it. But if it is a correct statement of law that the attorney put in the brief, just because that was a correct statement of law written by some other attorney, I don't see why that should matter, Jeff.

Jeff Lewis (05:00)
Well, I have a different point of view. Think about this. When you sign a brief and you say things in a brief that contained in quotation marks you're representing to the court, those quotation marks are cited correctly to the source. And when you say something in a brief that's not in quotation marks, you are telling the court, these are the pure, unfiltered, uncorrupted thoughts of Tim Kowal, right?

And so if you are passing off someone else's argument as your own and it's substantive, you know, it might make a difference to me if, know, you're talking about the four elements of breach of contract cause of action and you happen to like someone's pithy way of saying that and you take that, that's one thing. But if you've taken wholesale paragraphs and paragraphs and paragraphs of someone's argument and pass it off as your own thoughts, I do think that's an ethical problem.

I also suspect, I don't know, but I think the way the footnote was written in this case that the Impropur party here was actually an attorney. They use terms like counsel and refer to counsel's duty of candor. And I just, get the sense that the Impropur party here was attorney. Maybe the result would have been a little different if it had been a true Impropur who wasn't also a licensed lawyer. So those are my thoughts.

Tim Kowal (06:08)
Obviously, the majority here shares your view of it, again, my view is that work product in a brief is different from creative work product. I think that legal arguments are basically public domain. Once you make a legal argument, if you put it in a book, of course, or a magazine article or anything else, but a publicly filed legal brief, then you have some creative license, normal copyright.

⁓ law would attach there and ethical duties would attach, I suppose. You can't pass off others' work as your own, but again, when you sign your name at the bottom of brief, it's not saying that it's your work product. The relevant fact is that you have confirmed that it is a true statement of law.

Jeff Lewis (06:51)
I don't know that I agree, but there's the implied absence the implied assertion that the absence of quotation marks denotes your original thoughts But I will tell you when you pointed this case out to me It reminded me I do a lot of anti slap work and defamation work and I see a lot of poorly written letters by Cisa defense Cisa desist letters by potential plaintiffs lawyers and oftentimes these letters that are brow-beating people saying stop saying these negative things

They end with, and whatever you do, do not republish this letter on your social media, because I, Joe Attorney, hold a copyright on this letter. And if you publish this letter on your social media, you're violating my copyright laws. And ⁓ I always find those very amusing, creative, and completely unfounded in the law.

Tim Kowal (07:37)
Well, why would that be unfounded? you're

reproducing it, that's a copyright issue.

Jeff Lewis (07:42)
No, no, no. Issue one from this case we were just discussing is putting in a brief a thought that you're saying is Tim's original uncorrupted thought when, in fact, it is wholesale plagiarized from another source. So you are misrepresenting to the court who wrote it. That's one thing. ⁓ Copyright, no. There's no such thing as a copyright in an attorney's letter.

Tim Kowal (08:02)
How is it of any legal relevance whether it's Tim Kowal's idea or Joe Schmo's idea or Ms. Gustorf's ⁓ idea? The only question is whether it's a correct and persuasive statement of the law.

Jeff Lewis (08:13)
know because California rules of court direct that every statement or brief include a citation to legal authority and if you're not including citation to a legal authority or other authority you're suggesting that this was an original thought that the court may or may not take as seriously maybe if you had quoted it and given attribution to the author the court might have taken it more seriously the point

Tim Kowal (08:37)
Well, I mean, taking nothing away from Ms. Guzdorf, who I am assured is an erudite commentator of the law, but she's not a legal authority. I mean, let me pivot to say I don't know what reason there would be not to attribute the article. I don't know why the brief did not contain a reference or a citation to Ms. Guzdorf's article. There'd be no harm in doing that.

I would stop short of saying that it is a breach of an ethical duty not to do so.

Jeff Lewis (09:05)
Well, let me say this and it goes back to my first comment, you know, the Iraq analysis issue rule analysis conclusion. I don't know if the plagiarism here was of the R of Iraq, just the rule or the analysis. If it was of the analysis, I think that's a problem. If it's just the rule, I'd be less offended.

Tim Kowal (09:23)
Well, yeah, yeah, I agree. That's my point that if you've misstated the rule, if Ms. Gosdorff's ⁓ article had misstated the rule and you cite the Ms. Gosdorff's or quote from Ms. Gosdorff's article without attribution, now you've got a problem because now that misattribution is on you, the attorney who has signed the document. And if you wanted to

deniability, you could include your citation and say, well, you know, maybe I was mistaken in relying on this article. But I don't think that the problem was that it was a misstatement of law. At least there was nothing in the opinion that suggested that the problem was any misstatement of legal authority. It was the non-citation of legal authority. And that can be, to your point, I agree that would be arguably a briefing defect, a violation of that rule of court, but not a violation of the rules of

professional conduct, not an ethical violation. Maybe you've waived an argument because you've failed to comply with the rule to cite your legal authority, but not an ethical violation for heaven's sake.

Jeff Lewis (10:26)
I don't know, rule 8.4 is pretty broad. It says no dishonesty, fraud, deceit, etc. And plagiarism is dishonesty and fraud, I would say. It's academic fraud.

Tim Kowal (10:37)
we're begging the question of plagiarism. Is he trying to take

credit? Was it word smith so eloquently that no reader could fail to be persuaded by it, but only if they had known that, oh, this is Miss Gustor. Now I'm familiar with her writing and maybe the magic wears off, but it was only by the non-attribution that caused the magic to occur. that was an

unethical and fraudulent use, it just seems absurd to me. But Jeff, you're in good company with the court. You're swimming with the tide here. I'm the minority report. Okay. But with that, well, I shared this once before, but while we're on the subject, I had used once an unpublished dissent in ⁓ arguing a point.

And I knew that I could not cite to the unpublished decision, but the dissent was so well reasoned that I cribbed heavily from that decision. And I acknowledge as much to opposing counsel and the issue came up at oral argument when opposing counsel tried to make hay out of it and argued that I had plagiarized from an unpublished decision and then cited to the unpublished decision. And I responded by saying, well, I...

I don't believe that I've committed any violation of any rule and I'm certainly not going to start by violating rule point 1115 by citing to the unpublished decision. And if not for rule 8.1115, I certainly would have cited to my authority. I would have no reason not to, but because the rule of court says that I can't attribute, then I didn't attribute. So.

That's another wrinkle in this whole saga. I just thought it would be such a waste of my time and my clients' money for me to have to re-WordSmith an argument that was perfectly well made in this unpublished dissenting decision complete with citations to valid published authority.

Jeff Lewis (12:29)
Pandora's box of ethical issues.

Tim Kowal (12:31)
Says you, I say there's no ethical issue. But anyway, reasonable minds will have to disagree for now. Let's move on to another one that I've been itching to talk with you about. And this is, Presiding Justice Gilbert has taken issue, actually he's long taken issue with this practice of the California Supreme Court, that when an appellate decision is published, of course we know it's binding in all superior courts, incitable in all the appellate courts,

But sometimes the Supreme Court will decide that a case that was once published should not be published. And when it exercises that power, its rule of court, 8.1125C, that appellate decision, which previously was part of binding decision of law of the state, suddenly disappears. So for many years, presiding justice Gilbert has criticized this practice, and he does so again in a recent Daily Journal column.

does not urge abolition, he says, of rule point 1125. He only says that when the Supreme Court exercise it, it should say why, because as Justice Gilbert says, it undermines the hard work that he and his colleagues have put into creating published quality work. So here's Justice Gilbert. If the Supreme Court depublishes a case, tell us why all of us, the bar, litigants, and gulp the justices,

The court rule tells us that de-publishing is not a criticism of the decision or any law stated in the opinion. So what gives? We live in an age of openness, presiding Justice Gilbert says. If I went astray, I would like to know why. It would help me be a better justice. I can handle it, I guess. And to this ⁓ attorney and Supreme Court observer and California Appellate Law ⁓

podcast alum, Dave Edinger writes that years ago, that is exactly what the Supreme Court did. He says that when it denied review, the Supreme Court would sometimes append short statements to the Court of Appeal opinion in cases that it was not going to hear. And ⁓ Edinger points to an interesting objection to that practice. He says that a problem with that practice and thereby with Justice Gilbert's proposal is that the Supreme Court

⁓ by issuing the statement that goes along with the order, the depublishing order, that would in effect be issuing a decision of law without briefing by any party or interested amicus curiae and without any oral argument in the Supreme Court. And I wonder what you thought about that, Jeff, because I thought that's a valid point. But on the other hand, I think the act of depublishing a published case is also a legally significant exercise of judicial power.

It's also done without any notice or opportunity to object to it. So I think that if the Supreme Court is going to be exercising power in de-publishing, I'd prefer it do so with transparency. I think that would in fact limit its power rather than enlarge it by obliging the court to explain its actions in doing so. So that puts me in Justice Gilbert's camp. I say that if the Supreme Court is going to de-publish, please

Explain why. What do you think?

Jeff Lewis (15:38)
So am I hearing you say, Tim, that you're very concerned with a shadow docket and ⁓ unexplains things that happen like a lightning bolt out of the sky? Is that what I hear you saying?

Tim Kowal (15:49)
Yeah, this has been away the California Supreme Court shadow docket.

Jeff Lewis (15:53)
Yeah, you know not everything has to be litigated Tim I kind of agree that the Supreme Court should have the power to de-publish things because Our courts of appeal are so inundated with case after case after case that whatever fact pattern that caught the appellate justices eye That they wanted to publish a case about there'll be new opportunities day after day after day And so there's no real harm in de-publishing one when there's ten more coming down the pipeline

So I'm cool with having one fewer procedural device to be overly litigated with briefing and explanations and et cetera.

Tim Kowal (16:27)
But Justice Gilbert's point is that they've put hours and hours and hours of additional work to make this publish quality opinion. And now it's just going to be in the recycle bin.

Jeff Lewis (16:38)
But Tim Kowal of 2020, when we started this podcast, would say they should be putting in that work for unpublished decisions too. Published and unpublished should get the same amount of work, whether it's published or not. so there's no real harm other than to the development of the law. And there'll be additional cases down the pipeline.

Tim Kowal (16:56)
you're trying to use my own positions against me. Yeah, do think that all the opinions deserve the analysis that they merit. I think Justice Gilbert's response would be that it's not that they're putting in substandard work into the unpublished decisions, but they do more polishing to remove possible

Jeff Lewis (17:00)
You

Tim Kowal (17:19)
know, areas of confusion or where it could be misinterpreted. They're coming to the same result regardless of whether they put in the dozens of more hours that they would put into a published quality, but they're giving more thought into how it's going to be applied and interpreted or possibly misinterpreted to other cases.

Jeff Lewis (17:36)
imagine how taking the counterpoint if a Supreme Court's little footnote explaining why they Depublish something could be cryptically cited in a future Appellate brief or petition for review and without context and without briefing The explanation as to why the Supreme Court had that view I I don't know that would be all that useful

to provide that explanation. could provide problems and misunderstandings down the road in terms of people citing that explanatory material. I don't know. I'm on Team California Supreme Court here.

Tim Kowal (18:10)
Well, I'm always against depublication and unpublication. And if we've already gotten the Court of Appeal to issue a published decision anyway, it always ⁓ irks me even further that the Supreme Court would go to the effort of depublishing. It just strikes me as doubly offensive. OK, Jeff, I've got a handful of other headnotes, as I call them. They're the cases that I didn't.

bothered to read, but I read someone else's take on them or I read a snippet of it that seemed like it was interesting enough to mention and maybe it will be of use to some of our listeners. And if it is, then they can go and read it further. And if it is truly interesting or if I've gotten it wrong, then they should write to us and offer to come on the podcast and set the rest of us straight. Okay, I've got a few about attorney's fees. ⁓ We talked about requests for admission fees a number of times.

that if you get a request for admission, hey, admit that you signed this document, know, just request to admit the genuineness of a document and you refuse to do so and then the other side has to go to the expense and burden of actually proving that it was the genuine document, then you have to pay their attorney's fees for having to go through that miserable exercise. That's basically what happened in Gammo versus Morrell.

an August 2025 case out of the 4th District Division 3. If you unreasonably deny an RFA, you get hit with attorney's fees. But the twist in this case is that the RFA fees statute applies even if you otherwise are protected under a one-way statute. So this was a case that involved, I believe, I think the consumer rights statute. So the plaintiff would be entitled to fees if the plaintiff won, but not the other way around. But the defendant

propounded RFAs in this case asking to admit that the plaintiff signed the document. I think it was concerning the sale of a car. I think it was a dealership dispute. And the plaintiff, for whatever reason, refused to admit that they signed the document. And so they got hit with attorney's fees. And the question on appeal was, hey, this is a one-way cost-shifting case, so it seems incongruous.

for the RFA statute for attorney's fees be used to basically upset that policy or that legislative policy for one way shifting the court of appeal thought no, the RFA statute acts independently. What I thought was interesting about this case actually, Professor Sean Martin mentioned what if this was one of those cases that involved, know, Jeff, those RFAs that are basically case dispositive.

say, admit that you have no case or admit that your affirmative defense is bogus or to that effect. Admit that you have no facts on a dispositive issue. Those are easy to do and I've seen those come up a couple of times and I've been surprised that they can actually still support an award of attorney's fees.

If you deny a case dispositive RFA and say, no, I think I would like to actually have a trial on this, please, you can still get hit for attorney's fees. And I wonder if that would be the same result in a one-way cost shifting case like this.

Jeff Lewis (21:14)
Well, the key though is unreasonable denial, right? It's not just denying. It's an unreasonable denials when fees get shifted. And so trial court finding, yeah, there's a genuine issue here. We should have a trial about it because there are deep questions of factor law. That's one thing. It's another thing for some wackadoodle to deny an RFA and say, want my God given right to a trial and they camp in your courtroom for three weeks. That's an unreasonable denial. And I think the policy

reasons behind ⁓ granting cost approved sanctions are pretty valid there. You want to encourage people to think long and hard before they deny an RFA.

Tim Kowal (21:49)
Yeah, yeah, that is true. just... The case dispositive ones are the ones that always stuck in my craw because those are so hard to... If you admit it, your entire case goes away. And so what stops any party from just issuing a bunch of case dispositive RFAs and then later, you know, now the other side's got exposure to potentially getting hit for basically the entire case attorney's fees because it's a case dispositive RFA.

Jeff Lewis (22:13)
Yeah, but what trial judge do you know would issue cost-approved sanctions for denying, I don't know, admit you were negligent, admit that you defamed my client. No judge is going to give you cost-approved sanctions for denying those. I don't know.

Tim Kowal (22:30)
It's true, they

can't be quite that blatant. But in a lot of the cases that you and I litigate, there are RFAs in these business disputes where the issue comes down to a key disputed point. whatever way that one point goes, so goes the entire case. And so if you issue RFAs on those, now all of a sudden, there is a possibility that you could be exposed to attorney's fees in a case where otherwise it's ⁓

It's an American rule case.

Jeff Lewis (22:54)
Yeah, well, let me say your point is well taken. will say this. You know, you're allowed to do RFAs on legal points, not just factual points. And you can't predict how a judge ultimately is going to rule or how clear cut a judge might see that rule. And so you could deny an RFA about whether a certain law applies in a certain way. And the judge could disagree with you and later think it was unreasonable for you to think otherwise.

Tim Kowal (23:15)
Yeah. Yeah, know, Jeff, you give him an idea for, I should probably build out a page on my website for another area of services that we provide in assisting trial attorneys come up with case dispositive RFAs. If you don't have a right to attorney's fees in your case, you know, maybe you do. Come talk to me.

Jeff Lewis (23:27)
Yeah.

Maybe.

Maybe. Yeah.

Tim Kowal (23:33)
Okay, here's just an interesting tidbit ⁓ with a hat tip to Mark Alexander of the California Attorneys Fees blog. According to an August 8th, 2025 article in the LA Times, Gibson Dunn and Crutcher represented City of Los Angeles or is representing City of Los Angeles in a homeless encampment case. And this article has the upshot of showing that even though you're doing public interest work,

It can pay rather handsomely. Gibson Dunn obtained a favorable municipal ruling by the Supreme Court of the United States on the legality of homeless ban practices. And for their efforts, they submitted an invoice just for May 2025, totaling $1.8 million. At least 15 attorneys were billing out at close to $1,300 an hour.

Again, this is for public interest work. So don't think that just because you're doing public interest work, you have to take a haircut. These attorneys apparently did not. The article also notes that ironically, a month later, US District Judge David O. Carter issued a ruling that the city was not complying with a three-year-old settlement agreement between the city and Los Angeles Alliance for Human Rights to create almost 13,000 homeless beds or other accommodations by

June of 2027.

Jeff Lewis (24:53)
Yeah, let me say this. I was involved at the periphery of that LA Alliance case representing an amicus party. Maybe it was a proposed amicus or an actual amicus party that was super interested in the outcome of that case. And in the middle of the pandemic, 2021, Judge Carter issued a blistering, like 110 page decision explaining generational racism and how racism passes from generation to generation could still be felt today.

the impact or the interrelationship between racism and homelessness and imposed a wide sweeping injunction commanding that city of LA do this that and the other thing. The Ninth Circuit in about five minutes reversed that injunction found it was too broad. But if you're somebody who thinks that racism was a problem in the 50s it doesn't exist today or you don't understand the link between racism and homelessness even though it was reversed because not being well

grounded in law. I urge you to read Judge David Carter's ⁓ 100 plus decision issuing injunction. It's a fantastic read and explanation about how people on the margins of society view structural and historical problems. Yeah, it's fantastic read.

Tim Kowal (26:04)
Where did his, where does narrative largely come from, do you know? Is it all completely original work product?

Jeff Lewis (26:10)
Might have been from amicus briefing not my party, but mostly he cited a few sources here and there but a lot of it I could just tell was stream of consciousness David Carter he's a he's a force and Yeah, it was a fantastic read even if you don't agree with them. It's interesting walk through history

Tim Kowal (26:19)
Thanks

Yeah. Okay, next case on a 128.7 issue with the upshot that attorneys have a continuing duty under Code of Civil Procedure 128.7 to throw in the towel if subsequent discovery compromises the case. The case is Atlantic International Corp versus Baroness Investments LLC, July 2025 case out of the second district. It's not published. This was also

reference to this case is courtesy California attorneys fees blog. The litigants in this case made deposition admissions, which compromised some of their claims made at the pleading stage, but they didn't take any corrective action even after a 128.7 safe harbor pleading was served. And that resulted in the other side moving for sanctions with the lower court.

granting the sanctions and awarding $105,000. And the appeal by one set of the attorneys was successful, although the appellate court reiterated that litigants and counsel need to, quote, throw in the towel if they're faced with the sanctions request where the case has been compromised. So this is a good example of how you need to continue to monitor your allegations. From time to time in your case, take a look at what you pleaded at the beginning of the case or in your operative

complaint, make sure that you can still prove all those claims and allegations. And if there are subsequent discovery that reveals that you're not going to be able to prove that claim or that allegation, then you got to pivot. can't just pretend that no one's going to read your complaint because the judge is going to read the complaint later on in the case, especially when you get to trial. That's going to be the roadmap that the judge is going to take even if you have a different narrative of it by the time you get to trial.

Jeff Lewis (28:06)
Yeah, and this case was framed within the framework of the statutory duties under 128.7, but this is nothing new. There's an analogous rule in the case law about malicious prosecution saying it's a tort to not only commence a legal case with malice and without probable cause, but to continue prosecuting that case once, even if you had probable cause to begin the case, if at some point you discover some bad fact in the discovery process.

You have a duty to dismiss that case and ⁓ if you don't you could be held forget 120.7 you could be sued for malicious prosecution and that's a world of hurt.

Tim Kowal (28:42)
Yeah, yeah, take those take a 128.7 motion seriously. I guess is a lesson there. Alright, next one. This was I felt bad for the attorneys in this one. It's an attorney's fees motion that was filed under Civil Code 1717. That's the one that says that if you have a contract that provides for attorney's fees, then that's the contract that gives you the right to attorney's fees. But there's one. There's another statute that also relates to contractual attorney's fees.

particularly where you have a tort claim that is related to the contract claim and that's go to civil procedure section 1021. And the attorneys in this case when they filed their fee motion in Martin versus Hogue, Fenton, Jones and Apple, looks like the Sixth District Court of Appeal case in July and unpublished. But what had happened is they cited 1717 but not 1021.

This was after the law firm had defensed a malpractice action. So they sought their attorney's fees. But what happened is that some of the associates at the firm had worked on the motion. under 1717 case law, they couldn't get their fees. But under some authorities interpreting section 1021 more broadly than the rule under 1717, they could have gotten those fees.

incurred by associates of the firm who was one of the defendants in the case. But the attorneys didn't move under 1021, so those more expansive, that broader entitlement to fees under 1021 didn't apply because in that motion where you had the magic words, this motion is brought pursuant to and you cite your authorities, if you don't include all of the operative or potentially operative

statutes and authorities, that could be a deal breaker for your entitlement to fees. always consider when you're making a motion for attorney's fees, not only 1717, but maybe also 1021 if it applies, if you've got some tort claims that you prevailed on that might be swept under a contractual ambit.

All right, just a few more, Jeff. think we might be starting to test our audience's patience, but I thought this one was fun. Can chat GPT testify against you? And OpenAI CEO Sam Altman says, maybe. He says, if you go talk to chat GPT about your most sensitive stuff, and then there's a lawsuit and chat GPT or OpenAI gets subpoenaed, we could be required to produce that.

So it makes sense to really want the privacy clarity before you use it a lot. So keep that in mind when you're using Chat GPT for any of your legal related matters. Know that anything you put in there could be public domain.

Jeff Lewis (31:23)
and many things you do with chat GPT you could accomplish with co-counsel on westlaw or clear brief and consider your super sensitive confidential stuff leaving it out of chat GPT and instead enjoy the protections of work product under westlaw's co-counsel or clear brief i that that that notion of a subpoena to chat GPT makes me queasy

Tim Kowal (31:45)
Jeff, what do you think about using, ⁓ are you using all legal guardrail AI tools like ClearBrief and Westlaw for your AI use? You said that you don't use JAT GPT for anything legal related?

Jeff Lewis (31:58)
No, we do.

If you have publicly available documents, let's say a publicly filed complaint or answer or appellate briefs, you can throw those into chat GBT and ask some basic questions that don't reveal anything super confidential. But for anything more or anything involving client provided data or anything involving your original thoughts, I prefer to direct my associates to use ⁓ either Westlaw's co-counsel product, ClearBrief.

or related products that have heightened protections and by merely using those products I think they would flag to any future court that you're attending to preserve work product.

Tim Kowal (32:34)
Well, Jeff, tell me about, do you have any safeguards for using Chat GPT? Like if you're preparing a motion and you're trying to prepare just a simple chronology, do you have any safeguards to make sure that the client knows ⁓ what you're using it for and what if they object to? Some people have embraced or refuse to embrace Chat GPT and...

have different levels of comfort. So how do you maintain transparency with your clients?

Jeff Lewis (32:57)
Well, look, every once in I do represent a celebrity or somebody with sensitive data that is uniquely situated and doesn't want their data spread. And so I have two provisions in my ⁓ current fee agreement. One says in legalese, hey, I might put your data up in the cloud. If you object client, let me know if there's something some part of your data or all your data or something unique about you. Let me know. And we'll find a different storage opportunity or option because I do run a paperless office. That's one provision. The other provision is

Hey client, we want to save you some money. We want to keep up with the big firms in terms of AI. We utilize AI, either the Westlaw product or ClearBrief, where we could do so to save you money, but we always have a human intervention in there to make sure garbage doesn't get spit out. So those two provisions kind of cover it. And then a client could say, hey, I read that, I'm concerned. I don't want my stuff in the cloud or I don't want using AI. I want to pay the full board of 10 hours to draft a brief instead of two hours to draft a brief using AI.

Tim Kowal (33:51)
And just out of my curiosity, Jeff, I've been thinking about this as AI makes us more efficient as lawyers, cuts out some of the busy work. Maybe there is less work that we need to give to a junior associate and hire a junior associate to do because we can use the Westlaw AI or Chat GPT or whatever our AI tool of preference is.

Jeff Lewis (33:52)
Okay.

Tim Kowal (34:10)
How do you make sure that you're just not taking work away from yourself or chat GPT isn't taking work away from you? Dude, are you willing to just walk away from those billable hours that are being shaved off slowly, but surely because of these AI tools? Or do you increase your hourly rate to make up for it? A lot of people might say that this is where flat fees can come in because you just charge whatever the value of the service is. And if you can do it.

much faster than another attorney who doesn't adopt these tools, then that's to your benefit as the more efficient and effective attorney who makes use of AI tools.

Jeff Lewis (34:45)
I don't find myself running out of tasks to do on my particular cases in terms of litigation. In terms of appeals, I do more and more offer either flat or capped arrangements. And that's more, even more doable with AI. I do think the client is entitled to the benefit of any savings. So if it would normally take you 10 hours to do a brief and AI helps you do it in two, and there's human involvement, it's a human curated and polished brief.

Tim Kowal (34:53)
anymore.

Jeff Lewis (35:12)
you should be charging the client two hours, not 10. I it's like, you know, I volunteer my time as a fee arbitrator and every once in while I'll see attorneys who bill their clients for the costs of Westlaw, not the price that the lawyer actually pays for Westlaw, but what a stranger would pay off the street to use Westlaw without a contract. And they charge their client that. It's outrageous and shameful. And so too would be the charge a client 10 hours for a two hour job.

Tim Kowal (35:38)
Yeah. Yeah, and I wonder if there's some other, I mean, at some level, this is where the market's going to go. mean, overall, more attorneys are going to adopt these tools and become more efficient and effective, but some of us more than others, I would think. do we attorneys who are adopting these technologies smartly and responsibly

Do we deserve some sort of premium or do we just, you know, what's the old joke about, you know, the legal tech salesman who propositions an attorney, what if I told you I can make you twice as effective or twice as efficient, I should say. And the attorney responds, well, okay, what's the upside? Because making an attorney more efficient just means cutting their revenues in half because it cuts their billable hours in half.

Jeff Lewis (36:23)
or you could serve justice for twice as many clients.

Tim Kowal (36:25)
Yeah, well, there's your public interest. then, I don't know, I can't afford to do, know, $1,300 an hour for public interest work seems pretty spicy. Okay, well, we got a bunch of other cases. Let's save those for next time.

Jeff Lewis (36:37)
You

Tim Kowal (36:42)
So, we'll close it out here and wrap up this episode. If you have suggestions for future episodes, please email us at info at calpodcast.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis (36:55)
See you next time.