We typed the following question into a simple AI prompt:  “What is the difference between admonish and deter?”  The response started with “The primary difference between admonish and deter lies in their intent and timing:  admonishing is form of active, often verbal correction or warning regarding past or present behavior, while deterring is an act of preventing a future action from happening in the first place.”  We did this, not because of existential dread about training our new Newfie puppy, but because we read an otherwise routine denial of a motion to vacate a conditional transfer order.  For people who do not play in the MDL sandbox, once an MDL is established by the Judicial Panel on Multidistrict Litigation (“JPML”), a new case filed in (or removed to) any federal district court can be tagged by any party, the JPML, or the MDL, which results in the entry of a Conditional Transfer Order that, absent a motion to vacate, loses its conditional status after a period of time.  The JPML decides those motions to vacate and almost always denies them.  Using the rubric of a product liability MDL, cases involving the product or products at issue in the MDL and generally the same factual issues as led the JPML to create an MDL in the first place are going to get transferred as long as the MDL is still accepting cases for pretrial centralization.  In In re Philips Recalled CPAP Bi-Level PAP & Mechanical Ventilator Prods. Liab. Litig., MDL No. 3014, 2026 WL 926016 (J.P.M.L. Apr. 6, 2026) (“Gravelyn”), that is what happened, notwithstanding plaintiff’s arguments about the seriousness of his injuries, the Northern District of California being more convenient, and the path to trial being longer with transfer.  As expected, those arguments were all rejected.  That is not why we are discussing our musings on the decision, though.

This is yet another case where a party submitted made-up citations and holdings.  In a recent post, we offered our own modest proposal (that did not involve cannibalism) for deterring such nonsense, but we also linked a website that does a really good job of tracking “hallucinations” in legal briefs from around the world.  More on those later.  In Gravelyn, the plaintiff lawyer started things off by misfiling her brief with phony citations to two purported JPML decisions allegedly supporting vacatur.  The misfiled brief was replaced with a brief with two different bogus citations—the only JPML decisions it purported to cite.  One cite was wrong, but both decisions held the opposite of what plaintiff claimed in his brief.  Minus footnotes, this is what the panel said about the plaintiff’s gobbledygook:

Before concluding, we must raise an additional issue, given our serious concerns about the integrity of the record in this matter. Plaintiff’s brief cites only two Panel decisions, but these two citations are inaccurate and misrepresent the holdings in the underlying cases. The nature of the misrepresentations suggests that counsel may have used generative artificial intelligence to draft plaintiff’s brief without checking the accuracy of the information produced, though it is possible counsel used some other unreliable source. Regardless, plaintiff improperly submitted a brief with false legal representations. We admonish plaintiff and his counsel for fabricating and misrepresenting legal authorities. This is an abuse of the judicial process, and one which we do not take lightly. Parties have a duty to ensure that citations are, in fact, real. See In re Snowflake, Inc., Data Sec. Breach Litig., MDL No. 3126, ___ F. Supp. 3d ___, 2025 WL 4007421, at *2 (J.P.M.L. Aug. 7, 2025). Any further non-compliant submissions from plaintiff may be stricken or result in additional appropriate corrective action.

2026 WL 926016, *2.  We do not find this admonishment enough in light of the “serious concerns,” “false legal representations,” “abuse of the judicial process,” and vow to not take it lightly.  The threat of striking future “non-compliant submissions from plaintiff” also rings empty.

Part of the problem in Gravelyn is the nature of the JPML practice.  The plaintiff and his counsel were not before the JPML for more than a few weeks.  The plaintiff is unlikely ever to be back.  His counsel might be back on some other case, although this firm seems to be a local Texas immigration firm operating out of its depth.  Even if the future sanction for more citation to hallucinated cases is that this firm’s motion to vacate in a future case involving transfer to the same or another MDL is stricken for similar false citations, then the result would be the transfer of a tagged case to an active MDL as happens in the vast majority of cases where transfer is opposed.  Overall, we see little chance that this admonishment will deter this plaintiff, his lawyer, or other plaintiff lawyers who do not file with the JPML regularly from continuing to save time and money by letting A.I. write their briefs without human oversight.

There are tools available beyond the proverbial finger wag, though.  When a lawyer hears that a brief was submitted with “false legal representations,” the first thought is usually Fed. R. Civ. P. 11.  It clearly covers this situation, regardless of whether A.I. was utilized (poorly):

By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

Fed. R. Civ. P. 11(b)(1)-(2).  There are a few drawbacks to using Rule 11 as the primary tool of deterrence, though.  First, making the defendants police this recurring plaintiff behavior is unfair absent cost-shifting.  Second, the procedure under Rule 11 means that the motion for sanctions cannot be filed until 21 days after it is first served on the plaintiff to afford time to withdraw or correct the filing.  Even if that timing worked in the context of a motion to vacate a CTO, there will be no consequence if the plaintiff files a new brief without the fake stuff.  Third, the court’s authority to order the plaintiff to show cause under Rule 11(c)(3) is unlikely to be utilized by the JPML unless it catches the problem early and/or holds onto the case long enough to sanction the plaintiff.  Fifth, monetary sanctions may not be awarded against a represented party—but can be against a pro se party—for violating Rule 11(b)(2), which means the court would need to find that the “improper purpose” language applied.  Fed. R. Civ. P. 11(c)(5).  The purpose of any sanction is to “deter repetition of the conduct or comparable conduct by others similarly situated.”  Fed. R. Civ. P. 11(c)(4).  Taking monetary sanctions off the table certainly limits the deterrence value.

When Rule 11 is not enough, courts can look to their inherent authority and various rules of professional conduct as empowering them to act to deter bad conduct.  In Gravelyn, the court noted its uncertainty about whether “counsel may have used generative artificial intelligence to draft plaintiff’s brief without checking the accuracy of the information produced” or “counsel used some other unreliable source.”  The JPML surely could have directed plaintiff’s counsel to explain what happened.  We have seen sanctions hearings where the plaintiff’s counsel dug a deeper hole.  The plaintiff lawyer in an auto accident case we wrote about last year got plenty of chances to avoid sanctions for contradictory jurisdictional allegations,   In the end, the $7500 fine was not as impactful as the formal reprimand for “[f]ailing to comply with the duties of an attorney by filing pleadings containing false representations and legally unsupportable contentions” that would have to be reported in connection with any application for admission. His firm caught shrapnel with the judge’s finding that, “based on the many [of the firm’s] cases that have come before me and my colleagues, I am persuaded that the facially obvious errors found in this case reflect a cultural norm at [the firm] to prioritize volume at the expense of accuracy.”  (This is the same court where sanctions-related proceedings are still going on a decade after the plaintiff lawyers’ non-A.I. hallucinations and other misconduct discussed here.)

We keep saying “plaintiff” and “plaintiff’s counsel” because that is who seems to be engaging in the sanctionable conduct when it comes to made up citations and made-up facts.  The website we mentioned earlier shows that hallucinations in U.S. cases overwhelmingly come from pro se litigants and plaintiff lawyers.  An occasional criminal defense lawyer too, but very rarely from lawyers representing a tort defendant.  Because the list of cases addressing A.I. hallucinations grows longer just about every day, it is apparent that the bad actors are not being deterred by what most courts have been doing.  There are some courts taking an aggressing approach to out and deter the behavior, though.  Focusing on sanctions against lawyers for citing bogus cases, two very recent decisions stood out to us in terms of the courts doing something more to deter continuing or similar behavior.  (By the way, we read the decisions and did not just rely on a website’s summary.)  In a case called Heimkes v. Fairhope Motorcoach Resort Condominium Owners Association, Inc., the Southern District of Alabama ordered the plaintiff lawyer to pay $55,597 to the defense counsel “for their time spent addressing [plaintiff lawyer’s] misstatements of law.”  In addition, the plaintiff lawyer was required to file the court’s order on the open docket in each of his pending cases and any new ones over the next year.  Within three days, he had to certify that he sent the order to wherever he was licensed.  The court sent the order to the state bar with a recommendation that the plaintiff’s lawyer “be found incompetent to practice law.”  For good measure, all the judges in the district and the chief judges of the three federal districts in the state would get a copy, and it would be submitted for publication in the Federal Supplement.  That should get someone’s attention. 

In an unpublished decision from the Sixth Circuit in a case called U.S. v. Farris, the lawyer appointed to represent an indigent criminal defendant on appeal got hammered for his hallucinations.  This decision is also pertinent to our musings about Gravelyn because the current JPML chair is a judge from the Eastern District of Kentucky, within the Sixth Circuit and where Farris was tried.  The Sixth Circuit kicked the lawyer off the case and took away any fees to which he would have been entitled under the Criminal Justice Act.  He was referred for disciplinary proceedings with the Sixth Circuit and his state bar.  The opinion was also sent to the Chief Judge and Clerk of the Eastern District of Kentucky.  While perhaps not quite the tar-and-feathering of Heimkes, this decision should be a cautionary take for anyone who thinks less effort can got into an appointed representation.

By contrast, we have seen any number of MDL decisions where the plaintiff lawyers have not been sanctioned for false representations in filings and other misconduct.  This seems to be the case even when the lawyers are before the court on multiple cases.  Such as here.

That brings us back to our prior proposal.  We suggested the following:

After due prior publicity – bar associations should punish attorneys caught with their hand in the AI cookie jar with suspensions from the practice of law.  We think that a first offense should warrant a suspension of one week for each fraudulent citation, quotation, or misrepresentation of a judicial opinion.  Second offenses should be punished at the rate of a month apiece.  If that’s not a sufficient deterrent, then the licensed miscreant is probably not fit to practice law.

The policing entity in this Bexian world is a bar association and the initial stick is a suspension.  Maybe this would work, but it seems like courts need to play a more active role.  We are not sure than suspension alone will do the job, especially if law firm partners can continue to share profits while on these mini-sabbaticals (and bar associations probably do not have a say on that).  Fee shifting directly from the miscreant to the other side also makes sense and courts have plenty of authority to do it. If sunlight makes the best disinfectant, then circulating decisions to people and entities that should care, including recipients of pro hac applications, should help.  We are sensitive to the suggestion that an accusation is not proof, as well as the reality that some mistakes really are innocent.  After all, our day job involves representing defendants who never do anything wrong.  However, just like punitive damages are intended to deter bad conduct, not just admonish it, there needs to be consistent action from courts to deter bad conduct from hallucinating lawyers.  Features of the rule of law, such as notice, opportunity, and appellate review, also have a place for severe sanctions, but there has to at least be the possibility of severe sanctions to begin to prevent patterns of prevarication.  Perhaps.