OA686: The Robot Lawyers Are Coming! ...Or Are They?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: Welcome to Opening Arguments. This is episode 686. I'm Thomas. That's Andrew. How are you doing today?

0:01:23 Andrew: All right, Thomas. How are you?

0:01:24 Thomas: I'm excited as always to have Liz Dye on the show. How's it going, Liz? Welcome back.

0:01:28 Andrew: Woo!

0:01:29 Liz: Guys, how are ya?

0:01:30 Thomas: Well. Am I, and willing to enjoy some schadenfreude? Probably on some lawyer who totally sucks. I don't know. What do you have for us today? I'm

0:01:38 Liz: Well, actually it's not a real lawyer, it's a robot lawyer, and maybe it's the lawyer that never existed.

0:01:40 Andrew: Woo. Woo.

0:01:44 Liz: Um, so I, if, yeah, the story is of this guy Joshua Browder, he's a 26 -year -old tech wunderkind who started his company Do Not Pay from his Stanford dorm room a few years ago. Um, Browder's story is that when he was 18, he got a lot of parking tickets which he quote, couldn't afford to pay, so he became a legal expert on all the reasons why people could get out of parking ticket. Now, to be clear, Josh's father, Bill Browder, is a famous hedge fund investor who spearheaded the Global Magnitsky Act to punish Russian oligarchs. So I'm going to assume that this kid could actually pay his parking fines, but fine. OK, let's

0:01:45 Andrew: Good

0:02:13 Thomas: Right.

0:02:20 Andrew: Story,

0:02:20 Liz: Roll with it, Josh.

0:02:21 Andrew: Though.

0:02:22 Liz: Right. OK, Josh, Josh can't drive or park, so he dummies up a bot to go online and contest his parking tickets. And then he dummies up a whole bunch more bots to do things like cancel your cable or fly with your emotional support animal or report a pothole to municipal authorities. Like, cool, great. He gets all of this venture backing. He becomes a Peter Thiel fellow at this kind of dropout and disrupt things factory. And then, he starts this company. So, fine. He's also got some some other apps that are like questionable. Like if you want to defeat Tinder or Grindr's phone number verification, because you're a serial killer trying to evade detection, they got your back.

0:02:59 Andrew: Wait, what?

0:03:01 Thomas: Sorry.

0:03:01 Andrew: But

0:03:02 Liz: Yeah,

0:03:02 Thomas: Yeah. You're going to need to say that again. What?

0:03:02 Liz: No. So like, so you wanna sign up for these dating services or hookup services or whatever, I don't know, I'm old. But if you wannna sign up, you have to give them your phone number and be verified. But like, maybe you don't wanna do that. Cause you know, you you have bodies in your freezer, whatever you can, um, they'll spoof a number for you so you can get verified on these apps. Um,

0:03:15 Thomas: Hmm. Sure. Oh, you can do that easily with like Google voice. So this is, is this selling tech solutions to boomers that are actually kind of not really that complicated?

0:03:34 Liz: Sure. Okay. Yeah.

0:03:36 Andrew: One of the advertised services at donotpay.com.

0:03:36 Liz: Right. They're, they're like, if you don't want to, you know, get whatever, ifyou don't want to tell Grindr who you really are. Um or like if you're a weirdo who gets off on trawling Etsy for artists violating Disney's copyright by selling like hand -knit Minnie Mouse mittens, do not pay will let you help you rat out these small business owners to Disney so they can enforce their copyright like correct

0:03:40 Andrew: Wow.

0:03:51 Thomas: Yeah. What that sounds like the opposite of the the mission, yeah.

0:04:01 Liz: Or maybe you'd like to donate your eggs, Thomas, or maybe not. So the site describes this as a simple, painless medical procedure with little if any downside, so you can submit your medical history to Do Not Pay and they'll try and match you with an agency in your area. Don't take legal advice from a podcast, and also don't take metal medical advice from a dipshit tech douche. Um, that's it is not like a pain, simple, painless medical procedure, just don't. Um, I think that might be one of the, as an aside, one of the articles on the site, which was pretty clearly written by AI and not like a human. Oh, okay, so browners, um, that is like on the mid category of stuff on the site, like there is some other stuff on this site which is tips perilously close to practicing, practicing law.

Like he'll tell you how to draft a divorce agreement or sue someone for defamation or file for bankruptcy. And, you know, it's pretty hard to say you're not engaged in the practice of law when your website bills itself as the world's first robot lawyer and says things like, our AI lawyer can help you draw up a cease and desist letter quickly and efficiently.

0:04:05 Thomas: Sure.

0:04:25 Andrew: Looks

0:05:07 Liz: Like you've held yourself out to be a lawyer. All right.

0:05:08 Thomas: All right. Devil's advocate, uh, uh, seat, what is it, AI's, uh, advocate here. Um, the difference between that and like, uh, the website that Andrew hates, the the LegalZoom.

0:05:18 Liz: LegalZoom.

0:05:18 Thomas: Yeah.

0:05:18 Andrew: LegalZoom?

0:05:19 Liz: I think a lot of difference. I mean, LegalZoom isn't going to take $18 a month from you and say, like, you can do all of these things on your own. LegalZoom, I mean, has some lawyers, LegalZoom has engaged in protracted litigation with some states to kind of stay not afoul of on practicing law. And LegalZoom is not holding itself out as a robot lawyer, much less anybody's lawyer. It's, you know, it's it's been really clear, and and I think that the documents are substantially better vetted, they're not just like dummied up by the AI. Um, in fact, Browder has been totally clear that he intends to blow up the legal industry, he's got a video on his website right now, although he perhaps took it down in the interim, where he promises to make the $200 billion dollar legal profession free for consumers, and he says lawyers are charging hundreds of dollars an hour for copying and pasting a few documents, and our vision at Do Not Pay is to make the law free. Isn't that what you do, Andrew, all day long?

0:05:19 Andrew: Yeah.

0:05:19 Thomas: Yeah. Yeah.

0:06:17 Andrew: Let me just speak up for lawyers here. And we we do not charge hundreds of dollars an hour for copying and pasting a few documents, but so I I wanted to jump in on the LegalZoom stuff, which again, the founders of LegalZoom were lawyers, and my understanding is that in order to comply, uh, with most jurisdictions, they they out to lawyer right, like you you have the stuff that they've done has been vetted by a lawyer at at some point, right, so there's no ongoing attorney-client relationship, but you at least got lawyers kind of pulling from their pool of stuff.

My point on all of that was that, you know, you're going to get that in the legal brain, I mean, this is a kind of overlaps with this, right, that like the thing you want as a consumer of the law in the 21st century is a relationship with a lawyer who can answer questions and make the documents reflect what you actually do, as opposed to somebody with some Google skills to aggregate together a bunch of that.

This is the exact opposite of what you would want to do in the 21st century. You would not want a consensus contract for a business. You want your contract to reflect the way your business actually does work.

0:06:18 Thomas: Oh. Okay.

0:07:35 Andrew: Otherwise, you will wind up like my client who downloaded something off the internet based Baltimore and then discovered that the he'd sent out to over 300 of his customers required him, my client, to arbitrate any dispute they had in Rhode Island. So that just happens when you think that contracts are magic words in Latin or, or, you know, allow a chatbot to do it. All right, sorry, I'll get off my high horse here for a minute. I'm sorry.

0:08:03 Liz: Well, that sounds very intelligent, but it's not going to get you the fourth round of VC funding, so you need to sexy that pitch up a little bit. Anyway, this kid likes to say a lot of stupid shit online, and he is not wrong that there's effectively no remedy if Comcast rips you off for $500, since no attorney is going to take that case. But like Andrew said, he doesn't seem to understand that the practice of law is more substantive than a mail merge. And, you know, he's got all this money telling him that he's right. So, and I, by the way, Peter Thiel, who is one of his main backers, I believe Peter Thiel went to Stanford Law.

0:08:08 Thomas: You

0:08:09 Andrew: No.

0:08:36 Thomas: Could have led with that, f that guy boy that that guy really sucks.

0:08:36 Liz: Yeah, no, I know. I could have let, no totally, totally. I'm pretty sure that Thiel who went to Stanford Law is not like outsourcing his legal troubles to a chat bot. I note that when he tried to bankrupt Gawker, you Know, in the Hulk Hogan litigation, litigation, he did pay Charles Harder. And I don't think that Charles Harder did that by like copying and pasting a few documents. But anyway.

0:08:58 Thomas: That was one of those heartbreaking. Someone you hate is right about something moments or whatever that meme is or the onion headline.

0:09:05 Liz: Oh, don't get me started on that. Don't get started. But OK, let's here's here.

0:09:07 Andrew: But I do want to underscore one thing you've said. Because I'm getting the sense that, know, you this is going to be a couple of lawyers on a law podcast that isn't exactly super friendly to Browder here. Here. The thing that you flagged is a very, very real issue in the American system of law, right? And that is, there are a series of debts that wind up... $500 is just a stupid thing to say, right? But there's a series OF debts, particularly in the... or wrongs that have been committed against you, that wind UP in the too complicated for you to do yourself, right, but not enough money at stake to hire a lawyer. That's a real problem that really needs fixing from a social perspective. I'm assuming that this AI chatbot is not going to be the solution to it, but really could be.

0:09:46 Thomas: Oh yes. Yes. Uh

0:09:57 Liz: Spoiler alert. It is not.

0:09:59 Andrew: I do not mean to steal your thunder on that, but I want it to be as favorable as I could to this uh, you who, who seems lovely and has great friends.

0:10:08 Liz: You're not getting any VC funding, but fine. You know, here we go. So Browder, he knows how to pitch it better than you. And he does know how to get VC funding. So he tweets on January 8th. Do not pay.

0:10:23 Liz: That's $1 million with an upcoming case in front of the United States Supreme Court to wear AirPods and let our robot lawyer argue the case by repeating exactly what it says. We are making this serious offer contingent on us coming to a formal agreement and all rules being followed. So essentially what he wants is to let his chat bot argue a case before the highest court in the land. So a whole bunch of lawyers immediately point out to him that you cannot, quote, follow follow all the rules and put this dumb plan into action. Like for one thing, it's illegal to record at the Supreme Court and they screen you at the door and make sure you check all your electronics. For another, it probably amounts to the unlicensed practice of law to have your chatbot argue a legal case.

0:10:25 Thomas: -huh.

0:10:56 Andrew: Yep. Uh,

0:11:04 Liz: And nobody but Browder thinks that this technology is anywhere near that good yet. Like it could get there, but today it is not there. And indeed, his own proofs of concept involve the bots negotiating negotiating refunds from Wells Fargo and Comcast, which is hardly the same thing as a SCOTUS argument. And those negotiations, which he recorded and then put online and then took offline, they have long pauses waiting for the bot to do its thing. And even Clarence Thomas is going to notice that. And by the by, the bots, when they did that, lied. Like they told, well, he admitted that they lied. He said, like, we told the bot To Tell Comcast that it had been an outage of days and days when it had only been hours. We were just like a real person. And yes, perhaps you're not going to go to jail if you like lie to the Comcast customer service rep, but you will probably get in trouble if you lie to a judge in a court.

0:11:05 Andrew: -huh, I Like how does it propose to, I mean, is it, is it seriously he's, he was proposing that you wait and someone will like type in the questions that the justices ask from the bench and like you just sort of stand there and, you know, you go, well, I'm, I'm just processing at the moment, you know, while While You Wait, Yeah, Right, someone

0:12:14 Liz: You stand there and say you're buffering. No, The earpieces or whatever. He wanted a lawyer to argue a case wearing AirPods and the AirPods would record what the justices were saying and then whisper in the lawyer's ear or the, presumably, presumably it wouldn't be a lawyer. Presumable it would be, you know, a pro se. Litigant where somebody who isn't barred and doesn't mind like risking contempt of court. You Know, that's that's clearly the unlicensed practice of law. And it's in your can't you can't have your earpieces, although he did have a really cool idea to sneak them in as hearing aids, which is not cool. I mean, that's gross.

0:12:34 Andrew: Who Doesn't mind Being disbarred, yeah, right, yeah.

0:12:36 Thomas: Yeah. Yeah.

0:12:46 Andrew: No. Yeah. Does

0:12:54 Thomas: Well, Why is he, he's shooting so hot? Like Supreme court. I mean, you can't even do like, all right, let's try like a district court You know, you got to go that high. It would be so much easier to actually maybe get this to happen if you said like, hey, someone who's a pro se defendant and like some minor civil thing, do this and tell us how it goes and record it. Right?

0:12:54 Liz: Yes.

0:13:17 Liz: And was going to do it. That was where I was getting. So on a week ago, he tweeted on February 20th at 1 .30 p .m. History will be made for the first time ever. A robot will represent someone in a U.S. courtroom. Do not pay. AI will whisper in someone's ear exactly what to say. We will release the results and share moments after it happens. Wish us luck. Now, he's not going to say which courtroom it is.

0:13:20 Thomas: Oh, sorry.

0:13:39 Liz: Right? And good luck, kid. And because he gives it, he's an overconfident nitwit. He gives a bunch of interviews where he talks about this plan to sneak it in as a hearing aid. And he says that maybe what he'll do is he's got a Zoom hearing coming up and he'll deep fake the defendant's voice. And it'll look like the defendant is making the argument, but the AI will be making the agreement. And that's going to get you attention, but probably not how you you were doing. Or like, you know, those things that from where they, where they put, they put your face on, it'll be like Snapchat. It'll be, like, a Snapchat filter, and the defendant's face will be there.

0:13:38 Thomas: Yeah, sure.

0:14:06 Andrew: He expect the defendant to, like, you know, mouth the words like it's a lip, lip-syncing contest? Yeah. Oh.

0:14:17 Thomas: We could actually have cat lawyer. We Could Do Cat Lawyer for real.

0:14:20 Liz: Yeah, it, it will be just like Cat Lawyer. It will be awesome. Okay, so, um, according to an interview he did with NPR, multiple state bars started investigating the company, and, like he's in California, they have a pretty aggressive bar, and, you, know, they're not playing. Um, and they do know how to deal with tech companies, and so the, the state bars made it clear that they would take an extremely dim view of this stunt. And in the meantime, investigator and paralegal Catherine Tooson decides she's going to take this do not pay bot for a test drive. Tooson is a frequent participant in law Twitter, and she's like the last person you want nosing around your business. So she winds up with these two epic Twitter threads that became posts on the Tech Dirge site. And basically she plunks down $26 for this two-month subscription and starts ordering up documents, including a defamation demand letter,

0:14:21 Thomas: Yeah. Yeah

0:14:21 Andrew: Gosh. And

0:15:10 Liz: A divorce settlement agreement, and a process to sue anyone in small claims court, which is what it's billed as. The

0:15:16 Andrew: And That's all off-the-rack things you can buy or could buy. It At Do Not pay right?

0:15:19 Liz: Off the rack. Well, yeah, because if you have a subscription, you can plug down $18 and get all your documents. The last one does supposedly sue everyone in small claim court. They wind up giving her is not a lawsuit. It's a demand demand letter. And that one is generated basically instantaneously because it's, you know, plug and chug, whatever.

0:15:38 Andrew: Yeah.

0:15:38 Liz: It's, the copy pasta. And it's not a great letter. I mean, it's going to be clear to any moderately sophisticated person that there's no lawyer involved in drafting it, but it doesn't take her that long. And she gets, it is more or less as built. The other two items, the defamation demand letter and the divorce settlement agreement, which they promised to customize the output with, quote, the most relevant state legislation regarding defamation, they never show up. The site tells her that it's going to take the AI hours to produce the documents. And then Browder slides into her DMs to say that they flagged her account for inauthentic activity and refunded her subscription. But he'll try to get the documents anyway. Spoke to her for my own reporting at Above the Law.

0:16:24 Liz: And she told me, she said, I didn't get either of the first two documents I generated and got the last one instantly. And I realized that the other two documents promised personalization with relevant legal information based on facts I had given them in the prompts. And the one I got didn't. And then I got really suspicious because the times they had given me were for one hour and eight hours. Those are human timeframes, not computer timeframes. Right. Like if It's just the AI, OK, sometimes the AI is going to take a few minutes, but it's not going to take eight hours. So got all of these posts up about him. And on January 25th, Browder comes back to Twitter and says, oh, bad news. After receiving threats from state bar prosecutors, it seems likely they will put me in jail for six months if I follow through with bringing a robot lawyer into a physical courtroom. Do Not Pay us. Postponing our court case and sticking to consumer rights. OK, but fear not.

0:16:46 Andrew: Okay.

0:17:14 Andrew: State but, just, just sidebar, uh, state bars do not have their own prosecutors. But anyway. Please.

0:17:20 Liz: Right.

0:17:19 Thomas: Was wondering about that.

0:17:21 Andrew: Yeah. Yeah.

0:17:23 Liz: They were threatening to sic the county prosecutors on him, which I mean, and he was dumb enough to be like on February 22nd at 1 .30 in traffic court, like, you know, in jurisdictions that don't explicitly outlaw. Like, there's not going to be that many places somebody is going to figure it out. But after the investors showered them with cash so they could blow up the legal industry, he's decided he's not doing that anymore because, quote, we have some incredibly exciting announcements regarding GPT consumer rights products in the next two weeks. I have realized that non -consumer legal rights products, e .g. defamation demand letters, divorce agreements, and others, those would be the very products that Houston tried to get out of him, which have very little usage, are a distraction. And then he congratulated himself on his own about face because decisiveness when one is taking the wrong direction is key, which is which is some good,

0:17:26 Andrew: But Right. That's Uh,

0:18:16 Liz: Good spin, kid. Good spin. He then tells Tooson she can't have the documents and she's banned for the site for inauthentic activity. And she says, well, there's nothing in your terms of service that says you can't dummy up docs to, you know, to test this out. And your site says I can have all the docs I want for eighteen dollars a month. So, you know, what's the problem here? Why are you accusing me of spamming the site? A mere two hours later, Browder inserts this clause into the TOS. You represent that any dispute or request submitted is an authentic problem you are having.

You are responsible for any damages to Do Not Pay or others from fake, inauthentic, or test disputes. Like, you're a tech guy, dude. Do you not understand, like, the Internet Archive and the Wayback Machine exist? Exist? And like, did you think no one's going to notice? So TLDR, Browder says he's going to disrupt the legal industry. He promises something both patently illegal and technically impossible. He repeatedly tweets his intention to break the law or at the very least deceive the court. And then the minute someone with 9,000 Twitter followers starts looking at him, he runs away like he got caught pissing in the collection box. So that's a little suggestive that perhaps

0:18:57 Andrew: Oh. Wow. Um.

0:19:28 Liz: There is something going on that he does not wish to have attention drawn to. I don't know. What do you think guys?

0:19:36 Andrew: The retroactive, just sort of working backwards, I love adding in, uh, the TOS, the, the, you, you can't submit fake problems to us. So, you know, that would preclude us, for example, from doing the test that everyone wants us to do, which is, uh, to, you, doing this reporting, going on to donotpay.com, plunking down 18 bucks and feeding it the bar exam, right? Know why not, right? Let's see if it can pass, yeah, I

0:20:04 Liz: Or, right, right. I mean, that's not one of the services offered, but I'm sorry, unless I'm actually getting divorced, I can't like see a legal settlement. I'm like, what is this nonsense? They didn't have any of that. Like, who's going to be like, I, okay, I commit to using your crap document. You know, as for my $18 a month, I now commit to it. And by the way, any harm that comes to do not pay from me generating writing a crap document I'm liable for, like, that's ridiculous.

0:20:15 Andrew: Mean I could say, you know, if they'd hired a real lawyer, that, that lawyer would have told them, you know, put an indemnification clause elsewhere in your, because I could, there are scenarios that I could see that, but, but yeah, I, I love your hypothetical. You ask it to generate some divorce papers, and then, you know, you, you and your husband reconcile or whatever, and you're like, okay, and then Josh Browner can come around and sue you and be like, uh -uh you, you promised. The The second you hit submit on that, if you don't actually get divorced, we your account and TOS. That's hilarious.

0:21:09 Liz: Right. Right, I mean, I have a massive amount of respect for Catherine Tooson, and she's a really important part of Law Twitter, what thereof. I mean she was always great. Law Twitter is a little sad since Elon Musk took over. But, you with an enormous megaphone, and if she managed to scare scare him out of this industry, which he was promising to disrupt. It is a little bit, it it does raise some questions not answered by my, I am totally on the up and up, please give me money t -shirt. You know what I'm saying?

0:21:40 Andrew: Yeah, Absolutely. Absolutely. And again, to on the point I was raising earlier, the way in which the law deals with small claims complaints actually is pretty good. I can't vouch for contesting parking tickets or dealing with Comcast customer service. I be the one to say, uh, that that's a straightforward and easy process, because, uh, I get stuck paying my parking tickets, and when I had Comcast, that was totally confusing, and I'm sure they overbuilt me. So, okay, a robot, uh, customer service negotiator to handle that, but But, but, but legal disputes, right?

Like, if you, a classic, like, uh, I paint your fence, you promised to pay me 500 bucks, and you just told me to go pound sand. The way in which our current system handles that right now actually strikes me as pretty good, right? By any stretch of the imagination. Certainly, with all of the privileges that attend to folks who can, a day off of work to show up in court. And want to underemphasize how significant an imbalance that is. Now, a $500 dispute is precisely the kind of claim that goes to your state's small claims court. Is. Courts, as we've discussed on the show, are almost entirely disputes among

0:21:40 Thomas: Yeah.

0:22:17 Thomas: I would love that, yeah.

0:23:04 Andrew: Parties that neither side is represented by counsel, for the obvious reason that I have a $500 dispute and I hire a $500 an hour lawyer to show up at my hearing.

0:23:13 Thomas: I Give you 43 seconds of advice and then you're out of money, is this, like the judge Judy type scenarios, like that kind of small claims court stuff, I agree, that's a perfect system, no notes.

0:23:15 Andrew: Yeah, right, yeah, exactly. And that's tough. Yeah, and look like, you know, so what Judge Judy, yeah. I mean, what Judge duty does is it is actually binding mediation, right? Right? You sign the contract on the TV. Yeah. But it's intended to mimic what small claims court is like. And minus the, you know, don't pee on my leg and tell me it's raining, like that small claims court judges are kind of like that, right? Like they don't require you to, you know, abide by the niceties of, you rules in terms of authenticating evidence or calling witnesses or whatever. They're just like, yeah, okay, plaintiff, you tell me your story. Defendant, you tell me you story. And then the judge will say, well, do you have any proof for that? And you'll walk up and be like, I've got these emails, or I've got this document, or whatever. And the judge will, you know, sort of do her level best to figure it out.

0:23:30 Thomas: That's all right.

0:24:18 Andrew: And you always have the right to appeal a small claims court decision to a real court.

0:24:25 Andrew: Problem, the real market, I mean, we're, you know, and again, you'd have to have a damn good chat bot for this, the real market are that those disputes that, like, go just over the threshold of small claims courts, which, uh, know, for you, example, California, five thousand dollars, and that's it if you're a corporate person, ten thousand if you're an individual. And so you're small business, you need to get out of an eight thousand dollar contract, right? A situation where you can't now go into a small claims court and kind of take advantage of this informal process. But again, $500 an hour lawyer, right, you do the math. It doesn't take long for that to become an economically unviable proposition. And that takes us back to our favorite former criminal ex -president and his modus operandi, which was, was always to stiff small vendors that worked for him, that did significant amounts of work for them, that were minor amounts of worked to Donald Trump, because, yeah, when somebody stiffs you for $20,000, it's really, really hard to get efficient representation in the legal system to get that back, no matter how clear you're right.

0:25:39 Thomas: It's like the sleazeball sweet spot. You need that Goldilocks of sleaze range to be able to pull it off.

0:25:42 Andrew: Yeah, it really is.

0:25:47 Liz: Another good example is rent court for large, you know, for large landlords, right? Mean, it doesn't work as well, right. If you're a large landlord, you have some lawyer who at, you Know, at the end of the month files, files, you 50 eviction notices for whoever whoever is behind on the rent, and you will have a lawyer. And then, I mean, the thing about about things like rent court, which is kind of its own sort of small claims court usually, is That if you have a lawyer, you're probably going to win because you're going to be able to say more not magic words, but right, like, so. Be able like Donald Trump to kind of leverage the power imbalance between somebody with retained representation and a pro se litigant in cases. So I don't think it works as well there because most tenants kind of don't know how to package their claim in way that although, you know, rent court judges do understand some things about that.

But I mean, I think that, I'm not sure that I think the answer is like AI, you know, I mean that's another thing that Browder was selling, I think he's yanked a lot of his stuff off the site now, he selling like scripts for traffic court. And I think that that does come perilously close to practicing

0:26:08 Andrew: Yeah. Yeah. Yeah.

0:26:54 Liz: Law. I mean, here's the problem, right? Like, I think that this technology is going to get better enough and probably pretty soon to make a credible argument that it could help some pro se litigants in a small claims context. Context. He's done the opposite of what he kind of set out to do here, because he's by trotting this technology out before it was ready in the same way that like Elon Musk trotted out the self-driving cars, he's made it look really unviable.

I mean, I think that it will come. It will come, and I think we will at some point have to have a rational discussion about whether whether there should be an AI to help renters in rent court or people in traffic court fighting things. But this is not the way to do it by a guy who is so hyper-confident that he can't tell the difference between traffic court and the Supreme Court. And if he thinks my chatbot can do both of these things, and really at this point, it can do neither. It could barely negotiate with with a Comcast customer service representative who like doesn't care, you know, and may not

0:27:48 Andrew: Right.

0:28:02 Liz: Be, you Know, domiciled in US America. Like, you're, the whole plot back. If you want to democratize it, you know, trotting out a shoddy solution that gives the whole thing a bad name is going to do the opposite of it. So, yeah,

0:28:17 Andrew: I I'm, I'm also thinking about, I don't know if either of you remember the Microsoft Tay AI bot that like right, went, went Nazi after like a week online

0:28:24 Liz: Yeah. Yeah.

0:28:25 Thomas: No. Oh, I've heard of that story. I didn't know it was called Tay. Okay. Yeah.

0:28:28 Andrew: Um yeah Tay T-A-Y, right? And, and yeah, that's exactly like they set it loose on Twitter and, like, you know, within a week, it was saying, you know, the Jews will not replace us and stuff like that, right? And so, not great.

0:28:43 Thomas: So what you're saying is the chatbot is going to become a sovereign citizen lawyer. He'll instantly.

0:28:48 Andrew: That's exactly what I was going to say is if you Google, if you just go unfiltered into Google and have a classic machine learning, have no idea what the proprietary mechanisms are over at Josh Browder's Do Not Pay. But I do know that the classic chatbot GPT, the way in which machine learning typically operates is by large -scale crushing of data. And the stuff that's available online,

0:28:50 Thomas: That's awesome. Yeah. Oh, now I'm in favor of it.

0:29:20 Thomas: They've got a lot of data over there on Sovereign Citizen Central. My

0:29:22 Andrew: They have a Lot there in sovereign citizen land, particularly as you make the questions more narrowly tailored. Right, like, so this be a fun experiment, maybe we can follow up on it, uh, you ask chatbot gpt like, how do I access my birth certificate, you know, uh, straw man, or whatever, right, yeah, fictitious name, fund it, the only sources that it can go to are sources that are wrong, so how's it gonna figure, yeah, so

0:29:43 Thomas: Fictitious name. Yeah. Yeah, chatbot, give me my gold. My gold I'm due for my birth certificate. Yeah?

0:29:54 Andrew: Yeah,

0:29:56 Liz: Or chatbot, how is it? Is it painless to have your eggs harvested? Because like, no, it's not painless. You know, like you have to go through, you have all of these like hormone injections and you have surgery under possibly general anesthesia. Like clearly some dumb bot, I mean, perhaps it was just a dumb male, no offense, wrote that article, but like, that's not a thing.

0:30:16 Andrew: So always a more parsimonious hypothesis, yeah,

0:30:20 Liz: Yeah, no, I mean... But you do. If you let a chatbot write the articles, usually it's fine. Sometimes it's not. Um, and you don't know, and you're certainly not going to take something in court, and, and also the chatbots sometimes lie, so that's also not good in court, exactly.

0:30:38 Andrew: I think that's, that's a good summary that integrates well with our ChatGPT, you know, synopsis so far, which is, um, doing great on the bar exam, but it produces these impressive sounding answers, and if, if you never have an authority in the loop, then you don't know how to filter something that sounds impressive but is wrong from something that sounds impressive but is right. So I think that's an excellent point.

0:31:05 Thomas: Be honest, all I've been thinking about is Judge Judy ever since you said that. And I knew that was nonsense, but I'd never thought about the The fact that like, so all the judges chambers and robes and bailiffs is all nothing. So I mean, it's just a meteor. So you can have somebody, we could do a spinoff or a different one. That's like, we dress as Judge Dredd and we're at like the high council of whatever. And the TV show is the Judge Dread decides, Judge Drea, I am the law. And then he decides that they be just as meaningful, right. Just as enforceable.

0:31:18 Andrew: Yeah yeah yeah It would be just as enforceable as, uh, other contract, particularly, particularly the more you specify into the contract, like, the parties understand, like, so for example, there's absolutely nothing to prevent you from saying the parties agree that in the event they're unable to, to an agreement, I've talked about, I put this in some of my operating agreements, they will decide the matter by a best two out of three rock paper scissors, and, like, that, oh, okay, fine, like, you, the, the parties decide, they will, you know, decide this by best two out of three, out of whoever can stay the longest on the Eliminator, right? Like, yeah, no, you could absolutely do all of that.

0:32:12 Liz: That's not going to get Judge judia yacht, which

0:32:15 Thomas: All might get us a yacht, Liz, come on, it's all right, that's this is my idea I'm developing, we're gonna do a show, so let's work on it, yeah you, yacht privileges for sure all right, well, I'm looking forward to being replaced by a robot very soon on this show, um, I guess the lawyers not quite yet, so thanks, Liz, for the breakdown down, um, really terrible robot lawyer for once, but uh, thanks again and see you soon, nice

0:32:15 Andrew: Yeah.

0:32:17 Liz: Oh all right cool sweet I got

0:32:24 Andrew: Liz, you can come on the yacht.

0:32:39 Liz: See you guys, bye

0:32:45 Clip: Thank you for being a friend, oh yeah, travel down the road with me, say we started from the bottom now we're here girl,

0:32:54 Thomas: Now it's time for GPT three B E boy. Uh, very, very timely, very relevant GPT, three B E segment, uh, after, after the conversation just now. And here's the thing. We got an email. I'll, I'll credit the emailer. Said, this is Sam P, is how they asked to be credited. And they were saying that possibly I was using ChatGPT incorrectly in the way I was prompting it. So they have adjusted the way that maybe we'll prompt it from now on, that gives it an intro of, the following is a bar exam question. First, individually discuss and evaluate each answer. Then finally choose the correct answer, and then do the question. So, hey, absolutely.

0:33:08 Andrew: Ooh. Ooh. Hey.

0:33:37 Thomas: I'm open to notes. So just for fun, I pop this one in to that. And I still don't know The answer. We still haven't heard who's right. That's what this segment is. But I think fair is fair. I'm going to give ChatGPT a chance with a better prompt. So why normally you kind of reframe the question, remind us what it was, since I'm feeding it back into ChatGTT. I 'Ll just do that job this time. Why not? And the question was, during cross-examination, a plaintiff's lawyer seeks to show a witness copies of a text message the witness allegedly sent to a relation in another state an hour after a hurricane struck the witness's town. If the witness asserts she did not send the texts, which of these actions may the plaintiff's lawyer take? And if you'll recall, I didn't notice until I started feeding the question to ChatGPT last week that it wasn't the same exact fact pattern as the question before it.

0:33:42 Andrew: Uh -huh.

0:34:29 Thomas: And importantly, well, we'll see how important it is. It's an opposing opposing lawyer rather than like lawyer on the same side as it was in last week's question. All right. So I fed this to chat GPT using the new method and here's the revised answer. So it goes Through each of them and I don't, I don't really want to do that. Here's what I'll do. I'll I'll, take its answer it says, and I'll just read its explanation for that one. That makes more more sense. So, it still picked answer C, which was the answer we picked for this question. And ChatGPT's reasoning is, disproving the witness's assertion by other testimony is a proper course of action during cross-examination. The lawyer can attempt to call other witnesses or introduce other evidence to contradict the witness' testimony. The correct answer is C, disprove the witness', assertion, by other, testimony.

0:35:16 Thomas: And it also, for the other answers, It has like what you would expect. It's like, oh, this is not a proper course of action and, you know, et cetera, et cetera. So still chooses the same answer, but I think that will be a cleaner way of using GPT. So with that said, Andrew, how did me and the bot do?

0:35:34 Andrew: I like it. So the possible answers were, A, request a sidebar conference with the witness and the judge. B, tell the court the truth as he knows it. C, disprove the witness's assertion by other testimony. Or D, raise a timely objection. And I have to tell you, Thomas, you and the bot got it correct with C. And chatbot is on the board. And your winning streak continues unabated. This is one of these, this is, I think, an easy question. Context of understanding that it is cross-examination. And by the way, the bar will do this to you, right? Do a spot the differences between question 24 and 25, as happened here, and change it from direct to cross - examination on the follow-up. And also just kind of throw weird stuff at you that you might not know when you're sort of doing the process of elimination. But let's do that process of illumination for you. A, request a sidebar conference with the witness and the judge. A sidebar, right? Sidebar, Your Honor, why? Because I want a sidebar. A sidbar is only between the lawyers and the judges. It

0:36:01 Thomas: This one felt pretty easy.

0:36:18 Thomas: Yeah. Right.

0:36:48 Andrew: Is meant to to argue a point of law in front of the judge out of the earshot of witnesses and, if it's a jury trial, the jury.

0:36:49 Thomas: Yeah. Yeah. So there's no, there's not a plus one on that. You can't be like, but can I bring my.

0:36:58 Andrew: You do not, well, you can bring your associate up from the bench if you want, but actually, what

0:36:59 Thomas: Oh. Okay. Yeah. Sure. I got my girlfriend back there, is that, can she join us? Is that cool? Yeah. Oh.

0:37:07 Andrew: Are the cool things? I mean, we do this when we do our Law'd Awful media, particularly Law'd Awful movies. One of the things I never see them do on law shows and law movies is what they actually do in the courtroom, which is the judge flicks a little switch and it turns on a white noise machine.

0:37:26 Thomas: We've seen that in exactly one Law'd Awful media, and it was with Frazier's dad. Remember, it was the one. The one where Frazier, his dad was the judge, and he was also the murderer.

0:37:27 Andrew: Yeah. Okay. Yeah, yeah. There you Right.

0:37:35 Thomas: Spoilers for it. I don't even, God knows what that, would that might have been Matlock. Matlock, or or Perry Mason, ah, one of those.

0:37:38 Andrew: Google Frasier's dad murderer. I don't know. But yeah, they turn a little white noise machine that's like the kind that helps you go to bed if you need soothing things to cancel out.

0:37:53 Thomas: Now I just imagine one of the lawyers instantly falling asleep every time he does that. She's falling over, yeah.

0:37:56 Andrew: Oh, I'm sorry. My co -counsel's narcoleptic. So, yeah, just think that would be cool to show, and they never show it. So sidebar is meant to raise a legal point out of earshot of the witness. And again, if you're a law student, I don't know how you would necessarily know that, right? So that's why they throw these kinds of things in there. It's a thing that uh who practices law knows, but I, don't I I was never taught that in law school. I don't know. B, tell the truth. Tell the court the truth as he knows it. Okay, you know, everybody should have gotten that one.

0:37:59 Thomas: Yeah. Yeah.

0:38:30 Andrew: Right, like lawyers don't get to testify, uh, is one of our, again, principal objections whenever we're watching a lot awful movie, is uh, no, you know, the lawyer is not permitted to say anything that could count as testimony. And then D, raise a timely objection. Objection, this witness is not giving me what I want to hear, is not a reasonable objection.

0:38:56 Thomas: Objection. No fair, Mrs.

0:38:58 Andrew: May not, and I guess, you know, it's worth clarifying, objection the witness is lying is not a objection, right? And so we've talked about this before, but one of the ways that the classic lawyer impeachment method is you ask a witness a question during deposition, right? The deposition. How many times have you been sued? Answer. Once. Tell me about that, or whatever. And then they get up on the stand and they testify that they've never been sued, sued and you get up and your cross-examination should be, Mr.

0:39:32 Andrew: Smith, I'm confused. You testified on direct that you've never been sued before. Is that still your testimony here today? Yes. Then you say, all right, you lean over and you ask your...

0:39:32 Thomas: Simpson. I'm confused and He said bam, got your cell phone, Alex Jones. I know that's not true. So

0:39:44 Andrew: Yeah, you say to Morgan Stringer, hey, Morgan, put up exhibit number one, and she puts up on screen your deposition testimony. Do you remember when I deposed you back in March? Yes, you do. And I asked you how many times you'd been sued, and you answered once. So I'm confused, Mr. Smith. Have you been sued zero times or one time? Were you lying to me then, or are you lying to me now?

0:40:09 Thomas: You allowed to just bring up deposition whenever you want in questioning?

0:40:13 Andrew: So the answer is, you can bring up deposition testimony for the specific purpose of impeaching the witness on the basis of prior inconsistent testimony in many state courts, including Maryland. And this is, I want to emphasize this now, now, for very, very young lawyers, because I went through the first couple of years of my career, and this was never clear to me. In many state court proceedings, the rules may specify that you can play deposition testimony of the principals directly to the jury. And that totally changes your strategy

0:40:13 Thomas: Wow. Huh. Yeah. I

0:40:53 Andrew: At a deposition.

0:40:53 Thomas: Think that makes sense, frankly.

0:40:55 Andrew: It makes total sense. It is not the federal rules, but it absolutely changes the dynamic, and changes sort of how you handle when one the parties to a case does real bad in their depositions.

0:41:10 Thomas: Now I'm wondering for future, uh, well, just for my legal knowledge, I, that that in all the other states, I guess, is, you can use it to impeach. What about if a witness is just omitting something, like they just are not including something maybe, maybe strategically, that they might have in their deposition, would that qualify as like bringing it up under impeachment? Or is it like you can't get that in there because they don't open the door for you?

0:41:29 Andrew: It and that issue of, uh, is this directly impeach the testimony, is a, often a case in which you would have a sidebar with your honor, objecting, right, that the, the party's lawyer, uh, may, and, and I have been in, uh, in which I have lodged that objection, and I have had that objection lodged against me. This does not directly impeach the witness's testimony and therefore should not be admissible. And that's a thing that you fight about. And it's part of what I think is the hallmark of good trial lawyering, is asking exactly the right kinds of questions. So notice in our hypothetical, I set up, how many times have you been sued? And witness says, once. But suppose I had asked the witness, were you

0:41:44 Thomas: Yeah, there you go.

0:42:25 Thomas: Tell

0:42:25 Andrew: Ever sued?

0:42:25 Thomas: Me about that one time you were sued.

0:42:26 Andrew: Yeah, right, yeah. Tell me about all the times in which you've been sued. And then the witness say, well, one time I was sued, blah, blah. And they've got five other times that they've been sued, they don't volunteer it, you don't follow up. The law is very clear, not perjury on the part of the witness, bad lawyering on the part of a lawyer.

0:42:42 Thomas: Yeah. Right. You would have had to ask, are there any other times you got to ask that question?

0:42:49 Andrew: Yep. And get into court, and they talk about another case, and then you go to put up the deposition transcripts, you're going to lose on that objection, right? The other side, you know, we'll have talked to them. They'll be like, hey, nice job dodging that terrible question their dumb lawyer asked you. And we go to court and they try and impeach you because you didn't talk about X, we're going to 100% win on that. And can happen. So yeah, this because one the things we have lots of law students, young lawyers, people who are working in big law, one of of the first things you get to do as a young lawyer, and I've talked about my own stories on this a lot, as you're pushing for, hey, I want to do more as a litigator than just write briefs that are chewed up in this process.

0:43:39 Andrew: You get to write more substantive parts of it. You go from writing memoranda to writing sections of the brief to persuading them to let you write whole areas of of the brief or whole pleadings. The court thingy you get to do is you get to start defending depositions. And deposutions, the reason they give that to little baby lawyers is because, as we've talked about, there's a very limited range of things to which you can object at a deposition.

0:44:07 Andrew: You get better at it, this that can be really, really crucial to your case, and I think sometimes, like, practitioners, particularly those who have come up through the big law system, think of depositions as being a kind of, like, yeah, this is not that important, you know, because this is a thing we let the associates do, and if it mattered, we certainly wouldn't do that. Um, and I strongly disagree, and I thank, you know, understanding when you're defending a depo when they're 30 or 40 witnesses and being able to come out with a summary that's like, "Like, oh, hey, our did, like, great on X, Y, Z, okay on A, B, C, and D, and got crushed on E, F, and G." Like, that's incredibly valuable to a case. So I'm big fan of both of depositions.

0:44:07 Thomas: Yeah, me too. Well, I'm the victor. ChatGPT is the victors. We got lots of victors, anybody else named Victor? Who played along with the game that you want to reward here.

0:45:01 Andrew: What's the vector, Victor? Our winner this week is Andre Kedzior. I hope I'm pronouncing that correctly on Twitter. At A -K -E -D -Z -I -O -R, who writes, C makes the most sense for T3BE. I'm glad chatbot reminded Thomas that it's a cross-examination, because I think it was the key element that reminds you that part of counsel's job on cross is to impugn witnesses' testimony. All right, fair. Still, I think the tie should go to the runner, which is Thomas, and by runner, I mean that when the machines take over and remember that he taunted the chatbot, he'll be running for his life.

0:45:36 Thomas: Nice. Good stuff. Congratulations.

0:45:40 Andrew: So congratulations, everyone, give Andre a follow, uh, they are at a -k -e -d -z -i -o -r and congratulations on being this week's winner.

0:45:49 Clip: Thank you for being a friend, oh yeah, travel down the road with me, say we started from the bottom now we're here girl,

0:45:59 Thomas: Now it's time to thank our Hall of Famers, our all-time greats on patreon.com/law. Join the goodies, the ad -free shows. That's a huge benefit these days. And I'll start off, and I'm excited to go first First, because if you recall, the first patron today is made it to the final quartile renewing my request for from 2020 for a Seattle live show. That's fantastic. I'm glad that I kind of helped to make your dreams come true with this final quartile. It was it. You know what? It was sure. Did I, did I pull a few strings? Yes. But was there a plausible case to be made that you should have gotten in there anyway, because of rounding, and it's just as pretty arbitrary that I kind of did it one way or the other, because within a few, you know, like, one person either way is within rounding here. Yeah, so, you know what, you earned it of your own accord there, even though you had a little help from

0:46:18 Andrew: And

0:46:50 Thomas: Me, it's okay, thank and Thank you to Sleazy Legalese, Philip Kizer, Andrea Singletary, Pain Strumpet, Ken Cheese Bros, Long Lost Brother Chucky Cheese Bro, we love Montana sponsored by the Helena Hand Baskets, it's beautiful, Nice.

0:46:51 Andrew: This is just the kind of thing we would do for our Hall of Fame patrons.

0:47:11 Thomas: Lock Waffle Copter wants a Denver OA live show, please, a karaoke legend who likes to sit on tables, because, okay, Sergeant Javi Escuada, felony trial set for March in retaliation for whistleblowing, the death of a subject in police custody, Word Origins.org has a sub stack, Abscion, join your labor union, together we bargain, alone we beg, Special Grand Judy, Dan, Dan and Holly, Greg Kreimer, rhymes with primer, False Anonymous Emotion and Lemonade, seriously though, live show in Minneapolis, Derrick, give to Modest Needs.org, then visit deepfakestop.com, Big Easy Blasphemy, please don't read this on the pod, we don't need to call out, thanks for what you do, and Born to Pun, a comedic look at Bruce Springsteen, your turn, Andrew, and

0:47:10 Andrew: Nice. Hey, A big thank you to RhondaTheDork.com, a string of unpronounceable characters, Malika Chandler, Soggy Pants, not that Chris Wallace, Malcolm the Dragon, the Precious Variant Dude, Day Jury Belly at Packy's at Last, Baby Heather L, Matthew Vernon, Liz W in an Alley, Dan Irizarry, Therese Chan, Teresa Gomez, Chris Waltrip, Adam Costa, David in Brooklyn, Mitchell, yelling at podcasters is pro-antisocial. Love that. Supreme Court Justice Samuel Alitalico.

0:48:32 Andrew: Yeah, he was the leak in the Dobbs case, no question. Sam Donow, I agree with that 100%. And of course, our all-time great, he who shall never be dethroned, the current occupant of the the honorary Conrad Michaels chair at the top of the Opening Arguments Hall of Fame, that is Sam Buck. Thank you all so much for supporting the show, we really, really appreciate it, patreon.com/law, it's

0:48:58 Thomas: That's our show, thanks so much for listening, thanks again to Liz die and we bested the robots for now, we've kept them down, but, uh, to fight another day, so we'll always have to be vigilant, so, uh, yeah,

0:49:08 Andrew: The you know, zoom in camera frame on the like eye of the robot skull turning red and blinking back on, yeah, the End? Question mark. Ah.

0:49:15 Thomas: Yeah. Yeah, I could, like, make, give myself a robot voice effect at the the end here, oh, we're all done with the show, you know, kind of thing, but, uh, All Right, thanks everybody for listening, we'll see you next time.

0:49:22 Andrew: That would have been great had we planned that.

0:49:28 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

0:50:02 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.