On February 13, 2024, the Missouri Court of Appeals, Eastern District addressed the use of artificial intelligence (“A.I.”) by a litigant in an appeal. Kruse v. Karlen, Cause No.: ED111172 (Mo. App. E.D. Feb. 13, 2024). The ruling in Kruse is the first decision of any kind in Missouri to focus on the use of A.I. by a litigant in the preparation of pleadings. Indeed, no other Missouri case has ever mentioned A.I.—much less discussed the use of A.I. and its potential to generate fictitious cases. However, numerous other jurisdictions have dealt with litigants using A.I. and the generation of fictitious cases by A.I.
In Kruse, plaintiff Molly Kruse filed suit against defendant Jonathan Karlen—along with three business entities allegedly wholly owned by defendant Karlen—for breach of contract, breach of guaranty, fraudulent misrepresentation, negligent misrepresentation, fraudulent inducement, unjust enrichment, violations of Mo. Rev. Stat. § 290.527 for unpaid wages, and suit on promissory note. Plaintiff Kruse’s claims arose out of defendant Karlen’s alleged failure to pay her wages for work performed as a graphic designer, including the breach of promissory notes executed by defendant Karlen.
On October 6, 2022, the trial court granted plaintiff Kruse’s motion for summary judgment, finding that defendant Karlen—acting pro se—failed to provide a response that complied with Rule 74.04 and therefore deeming all plaintiff’s statements of uncontroverted material facts admitted. The trial court further found that no genuine issues of material fact were in dispute and that plaintiff Kruse was entitled to judgment as a matter of law.
On November 16, 2022, the trial court entered a final judgment in favor of plaintiff Kruse and awarded $72,936.42 for unpaid wages, $145,872.84 in liquidated damages, $596.44 for costs and expenses, and $91,908.00 for attorneys’ fees for a total judgment of $311,313.70. Defendant Karlen subsequently filed a notice of appeal to the Missouri Court of Appeals, Eastern District—still acting pro se. During the appeal, defendant Karlen filed an appellant’s brief and a reply brief.
On February 13, 2023, the Missouri Court of Appeals, Eastern District filed an Opinion dismissing defendant Karlen’s appeal because of numerous briefing deficiencies under the Missouri Rules of Appellate Procedure, including the submission of fictitious cases generated by A.I. (Opinion, p. 1.) The court also awarded $10,000.00 in damages to plaintiff Kruse under Rule 84.19 because defendant Karlen’s appeal was frivolous. (Opinion, p. 1, 13.) With respect to the briefing deficiencies, the court noted that defendant Karlen failed to timely file the record on appeal, a signed appellate brief, and the requisite appendix. (Opinion, p. 1–2.)
The court noted that compliance with Rule 84.04 is mandatory. (Opinion, p. 2)(citing Murphee v. Lakeshore Ests., LLC, 636 S.W.3d 623–24 (Mo. App. E.D. 2021). The failure to “substantially” adhere to Rule 84.04 “preserves nothing for appellate review and requires dismissal of the appeal.” (Opinion, p. 2.) Despite acting pro se, defendant Karlen was “subject to the same procedural rules as parties represented by counsel, including the rules specifying the required contents of appellate briefs.” (Opinion, p. 2)(quoting Hutcheson v. Dep’t Soc. Servs., Fam. Support Div., 656 S.W.3d 37, 40 (Mo. App. E.D. 2022)).
While noting its preference to review the merits, the court noted that deficient briefing forces the court to “assume the role of an advocate by requiring us to sift through the legal record, reconstruct the statement of facts, and craft a legal argument on the appellant’s behalf.” (Opinion, p. 2–3)(citing Hutcheson, 656 S.W.3d at 41). The court held that defendant Karlen committed “numerous major violations” of the Missouri Rules of Appellate Procedure and thus the court could not engage in meaningful review. (Opinion, p. 3.)
The court noted four major violations of the Missouri Rules of Appellate Procedure committed by defendant Karlen. (Opinion, p. 3–5.)
First, defendant Karlen failed to file an appendix as required by Rule 84.04(h)—an omission that would be sufficient grounds for dismissal taken by itself. (Opinion, p. 3)(citing Young v. Mo. Dep’t Soc. Servs., 647 S.W.3d 73, 78 (Mo. App. E.D. 2022)).
Second, defendant Karlen’s appellant’s brief contained an inadequate statement of facts that did not contain any citations to the record as required by Rule 84.04(c). (Opinion, p. 3.) The court also deemed defendant Karlen’s statement of facts not compliant with Rule 84.04(c) because it was not “a fair and concise statement of the facts relevant to the questions presented for determination without argument.” (Opinion, p. 3)(quoting Rule 84.04(c)). The court held that the statement of facts offered unsupported and conclusory statements that challenged statements previously deemed admitted during the summary judgment proceedings at the trial court. (Opinion, p. 3.) “Failure to include, in the statement of facts, the facts upon which an appellant’s claim of error is based fails to preserve the contention for appellate review.” (Opinion, p. 4)(quoting Pearson v. Keystone Temp. Assignment Grp., Inc., 588 S.W.3d 546, 550 (Mo. App. E.D. 2019)). The court again noted that the defendant Karlen’s failure to include facts relevant to the issues to be determined by the court was sufficient—by itself—a sufficient basis to dismiss an appeal. (Opinion, p. 4)(citing Pearson, 588 S.W.3d at 550–51).
Third, defendant Karlen’s appellant’s brief did not provide points relied on as required by Rule 84.04(a)(4). (Opinion, 4–5.) The court highlighted the importance of points relied on because they defined the scope of appellate review and “give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues before it.” (Opinion, p. 4)(quoting Pearson, 588 S.W.3d at 551).
Fourth, defendant Karlen’s appellant’s brief violated Rule 84.04(a)(1) because it did not contain a detailed table of contents and a table of cases, statutes, and other authorities cited with references to the pages of the brief in which they are cited. (Opinion, p. 5.)
Most notably, the court took major issue with the actual authorities cited by defendant Karlen because the overwhelming majority of them were inaccurate and “entirely fictitious.” (Opinion, p. 5.) Indeed, of the twenty-four (24) citations in the appellant’s brief, twenty-two (22) were fake. (Opinion, p. 5–6.) Defendant Karlen’s two (2) citations to actual cases also failed to include pincites and did not stand for what defendant Karlen asserted. (Opinion, p. 5–6.) Of the twenty-two (22) fictitious citations, many had fictitious names and quotations. (Opinion, p. 6–8.) Several others had potentially real case names but did not stand for the propositions asserted by the appellant. (Opinion, p. 6–8.) The court described this phenomenon as being the product of “algorithmic serendipity.” (Opinion, p. 6.) Defendant Karlen also erroneously cited Missouri statutes and rules and misrepresented their substance. (Opinion, p. 8.)
Defendant Karlen apologized for the citation of fictitious cases in his reply brief, explaining that he retained an online “consultant” purporting to be an attorney licensed in California to prepare his appellant’s brief. (Opinion, p. 8.) Defendant Karlen claimed that he did so because the cost of the “consultant” was less than 1% of the cost of retaining an attorney. (Opinion, p. 8.) Defendant Karlen denied having any knowledge that the “consultant” used “artificial intelligence hallucinations” and denied any intention to mislead the court or waste plaintiff Kruse’s time. (Opinion, p. 8.)
The court held the filing of an appellant’s brief with “bogus citations” for any reason represented a “flagrant violation” of the duties of candor owed to the court. (Opinion, p. 9.) The court noted that defendant Karlen submitted his appellant’s brief with a certificate of compliance with Rules 55.03 and 84.06(c). (Opinion, p. 9.)
Rule 55.03(c)(3) provides the following:
Representation to the Court. By presenting and maintaining a claim, defense, request, demand, objection, contention, or argument in a pleading, motion, or other paper filed with or submitted to the court, an attorney or party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that:
* * *
(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
While the use of A.I. in legal research and writing has never been considered by a Missouri court, the court in Kruse noted the issue had been gaining “national intelligence” as the availability of generative A.I. has become more widely available. (Opinion, p. 9.) The court quoted Mata v. Avianca, Inc., where the Southern District of New York held that a fake opinion was not “existing law” and that any citation to the same provides a frivolous legal argument. (Opinion, p. 9)(citing No. 22-CV-1461, 2023 WL 4114965, at *12 (S.D. N.Y. June 22, 2023)). The court in Mata further held that any attempt to persuade a court by relying on “fake opinions” is an “abuse of the adversary system.” (Opinion, p. 9)(citation omitted).
The court also noted that courts across the United States have been considering and/or enacting local rules that specifically prohibit the use of generative A.I. in court filings or otherwise require disclosure of the use of generative A.I. in court filings. (Opinion, p. 10.) “We urge all parties before this Court barred and self-represented alike, to be cognizant that we are aware of the issue and will not permit fraud on this Court in violation of our rules.” (Opinion, p. 10.) The court held that defendant Karlen’s submission of fictitious cases was “an abuse of the judicial system” and went beyond “minor technical briefing deficiency” that could potentially be ignored to facilitate consideration of the merits. (Opinion, p. 10)(citations omitted). The court held that defendant Karlen chose to retain “dubious assistance” and submitted “fictitious and incorrect legal authorities.” (Opinion, p. 10.) Based on its finding of “significant violations” of Rule 84.04, the court dismissed the appeal. (Opinion. p. 10.)
After dismissing the appeal, the court was not finished and proceeded to consider whether the appeal was frivolous and thus warranted a sanction under Rule 84.19. (Opinion, p. 10–13.) If an appeal is deemed frivolous, the court has the authority to award monetary damages to the respondent if deemed just and proper. (Opinion, p. 10–11.)
“An appeal is frivolous if it presents no justiciable question and is so readily recognizable as devoid of merit on the face of the record that there is little prospect it can ever succeed.” (Opinion, p. 11)(quoting Estate of Downs v. Bugg, 242 S.W.3d 729, 734 (Mo. App. W.D. 2007)(remaining citation omitted)). “An appeal is frivolous and warrants an award of attorney’s fees when it is so deficient ‘that it is a strain on both judicial resources as well as the resources of the opposing party.’” (Opinion, p. 11)(quoting Puetz v. Rice, 675 S.W.3d 652, 657 (Mo. App. E.D. 2023)). “The issues presented on appeal must be at least fairly debatable in order to avoid assessment of damages for frivolous appeals.” (Opinion, p. 11)(quoting Frawley v. Frawley, 637 S.W.3d 140, 151 (Mo. App. W.D. 2021)).
The court in Kruse noted that damages are awarded under Rule 84.19 for frivolous appeals cautiously and on a case-by-case basis where the award will serve:
(1) to prevent congestion of the appellate court dockets with meritless cases which, by their presence, contribute to delaying resolution of meritorious cases; and
(2) to compensate respondents for the expenses they incur in the course of defending these meritless appeals.
(Opinion, p. 11)(quoting Bugg, 242 S.W.3d at 734)(remaining citations omitted).
The court held that defendant Karlen substantially failed to comply with court rules and that his repeated failures “favor a finding that his appeal from the trial court’s judgment is frivolous and warrants the imposition of sanctions under Rule 84.19.” (Opinion, p. 12)(citation omitted). The court specifically noted that even if defendant Karlen had complied with Rule 84.04, any claim of error by the trial court “wholly lacked merit” based on defendant Karlen’s actions during the summary judgment proceeding. (Opinion, p. 12)(citations omitted). “[Defendant Karlen] lacked any basis for asserting error on the part of the trial court in entering summary judgment.” (Opinion, p. 12.)
While appreciating the admissions and remorse of defendant Karlen in his reply brief, as well as the challenges placed on pro se litigants, the court nevertheless held that the issue presented was “much more serious and fundamental” than poor briefing. (Opinion, p. 12.) Specifically, the court held that defendant Karlen’s actions required plaintiff Kruse to expend more resources than necessary to decipher the record and arguments and to identify the fictitious cases that were wrongly presented to the court. (Opinion, p. 12.)
Under the circumstances, the court concluded that an award of partial attorneys’ fees to plaintiff Kruse was warranted and served as a necessary and appropriate measure to underscore the importance of following court rules and “presenting meritorious arguments supported by real and accurate judicial authority.” (Opinion, p. 13)(citation omitted). “The imposition of damages serves to promote the integrity of the judicial process.” (Opinion, p. 13.) The court ordered defendant Karlen to pay plaintiff Kruse the sum of $10,000.00 towards attorneys’ fees incurred on appeal. (Opinion, p. 13.)