Are you feeling “left behind” or possibly irrelevant because you’ve yet to integrate artificial intelligence into your law firm’s operations? You could easily feel that way after reading the 2025 Future of Professionals Report, published last week by Thomson Reuters.
The report paints a dire picture for lawyers who are tardy to the generative AI party. “Professionals who are embracing AI are not just more productive — they’re staying relevant,” the report declares. “This is the dividing line. Those who act with intention will lead. Those who wait will fall behind.”
That certainly sounds bad. Falling behind, becoming irrelevant. But take heart, and read on. There are worse things that could happen to you. You could ruin your hard-earned reputation for candor and professionalism with the courts where you practice. AI can do that, if you’re not careful.
Used thoughtfully and ethically, generative AI may provide lawyers all of the benefits its promoters are promising today. When deployed carelessly, however, generative AI can be the fast-track to sanctions, client disapproval, and most importantly loss of trust with local courts and fellow lawyers.
Here’s a data point to consider: the case of Twist IT Up, Inc. v. Annie Int’l, Inc., No. 24-736 (C.D. Calif., June 26, 2025), one of many where lawyers are being asked to explain why they shouldn’t be subject to sanctions under Rule 11 of the Federal Rules of Civil Procedure for filing pleadings containing AI-generated citations to non-existent legal authorities.
Sham Affidavits
In federal courts, a deposition witness has 30 days to review the transcript and submit a signed statement making changes “in form or substance” to the witness’s deposition testimony. So states Rule 30(e) of the Federal Rules of Civil Procedure.
The phrase “in form or substance” is provocative because it appears to be an open invitation for deposition witnesses to rehabilitate damaging sworn testimony merely by filing a post-deposition statement describing a more helpful version of the facts. Depositions would lose a lot of their value as pretrial discovery and early dispute resolution tools if this were the case. Fortunately, the freedom to revise deposition testimony ostensibly granted by Rule 30(e) is limited by the “sham affidavit” doctrine.
Under the “sham affidavit” doctrine, a court may strike an affidavit if it believes the affidavit was filed merely to create a disputed fact issue in an attempt to avoid the possibility of summary judgment. In Hambleton Bros. Lumber Co. v. Balkin Enterprises Inc., 397 F.3d 1217 (9th Cir. 2005), the Ninth Circuit extended the “sham affidavit” doctrine to “sham” post-deposition statements filed under Rule 30(e). In Hambleton, the court wrote:
While the language of FRCP 30(e) permits corrections “in form or substance,” this permission does not properly include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment.
Other circuit courts had already ruled similarly.
In Garcia v. Pueblo Country Club, 299 F.3d 1233 (10th Cir.2002), the Tenth Circuit wrote:
The Rule cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer the questions with no thought at all, then return home and plan artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take-home examination.
And the Seventh Circuit in Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir.2000):
We also believe, by analogy to the cases which hold that a subsequent affidavit may not be used to contradict the witness’s deposition, that a change of substance which actually contradicts the transcript is impermissible unless it can plausibly be represented as the correction of an error in transcription, such as dropping a “not.”
Reasoning from these cases, the leeway provided by Rule 30(e) to make post-deposition revisions to sworn deposition testimony appears to be this: Rule 30(e) is to be used for corrective, and not contradictory, changes. In the Ninth Circuit, at least. It is possible to find lower court rulings outside the Ninth Circuit that allow deposition errata sheets that arguably embellish or contradict sworn deposition testimony. See, e.g., Elwell v. Conair, Inc., 145 F. Supp. 2d 79, 86 (D. Me. 2001) (denying defendant’s motion to strike errata sheet because “[Rule 30(e)] allows deponents to provide revised answers to deposition questions, including answers contradictory to those provided at the deposition.”)
Sham Case Citations
Enter Generative Artificial Intelligence, Esq., who, while not a lawyer, is often heard making superficially plausible legal arguments in courthouses across the country. Take this argument, for example, from a brief defending the submission of an errata sheet that arguably contradicted the client’s deposition testimony:
Courts regularly allow clarifications to testimony that, though substantive, help clarify imprecise phrasing. See James v. Claussen, 2022 WL 1120273, at *3 (C.D. Cal. Apr. 14, 2022) (denying motion to strike clarifying corrections).
Or this one:
Courts have emphasized that unless the corrections were submitted in bad faith or solely to defeat summary judgment, they should remain part of the record. See Hernandez v. Polanco Enters., Inc., 19 F. Supp. 3d 918, 931 (N.D. Cal. 2013).
These might be good arguments. The problem, however, as a federal district judge pointed out in Twist IT Up, Inc. v. Annie Int’l, Inc., is that the case authorities cited in support of these statements either do not exist or do not stand for the legal proposition asserted.
There is no such case as James v. Claussen. Not in the Central District of California. Not anywhere. The only document remotely close to the given citation is a brief in a criminal manslaughter action in the Texas Court of Appeals.
The case of Hernandez v. Polanco Enters., Inc. does, in fact, exist. But it has nothing to do with depositions or deposition errata sheets or the sham affidavit doctrine. The opinion cited is a summary judgment ruling in a case involving Title III of the Americans with Disabilities Act.
So now the attorney who filed the brief has two problems: first, defending the deposition errata sheet with additional and relevant legal research; second, defending the inclusion of bogus, AI-generated case citations in a federal court pleading. This is hardly the productivity promised by generative artificial intelligence. This is additional time and trouble.
“Citation to nonexistent legal authority and to cases that do not include the proposition for which they are cited is improper under Federal Rule of Civil Procedure 11,” the Twist IT Up court noted. The court ordered the attorney who filed the troublesome pleading to appear in person for a hearing at which the court will be considering the imposition of sanctions.
Gaining Productivity While Preserving Trust
You can’t say that California lawyers haven’t been warned that generative artificial intelligence is an associate who needs close supervision. In November 2023, the State Bar of California, one of the first professional regulators to weigh in, had this to say about generative AI and a lawyer’s duty of candor toward the courts:
A lawyer must review all generative AI outputs, including, but not limited to, analysis and citations to authority for accuracy before submission to the court, and correct any errors or misleading statements made to the court.
The document, Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law, summarizes how generative AI implicates a number of ethical obligations – competence and diligence, safeguarding client information, communication with the client, supervision of subordinate lawyers and nonlawyers, reasonableness of legal fees – and is a good starting point for any firm considering use of artificial intelligence tools in their practices.
Used thoughtfully and ethically, generative AI may provide lawyers all of the benefits its promoters are promising today. When deployed carelessly, however, generative AI can be the fast-track to sanctions, client disapproval, and most importantly loss of trust with local courts and fellow lawyers – still one of the successful litigator’s most valuable assets.
