You’re Only Human

I have been playing recently with artificial intelligence. I mentioned that at a conference recently and a cohort replied "Haven't you always been?" I laughed along with everyone but later concluded that may not have been a compliment. The age of AI is upon us. I hope the topic is not new to you. I have been writing about it since 2016, and there are links to various articles in Intelligence (November 2022). The topic is absolutely fascinating.

Most recently, my experiences have been with ChatGPT, and it is amusing and fun. It is also often inaccurate. I asked the program who the "most famous workers' compensation judge in America" is. I got different answers on different days. Would we expect consistency in results? It misidentified various individuals, noting once that "Judge David B. Torrey in California" would be among its choices. Another day, I got "Frank McKay, who served in New York." These are each prominent contributors in this community, but Judge Torrey is from Pennsylvania while Judge McKay is from Georgia (or at least they told me they are).

The AI bot accurately and completely responded to when workers' compensation came to Florida (1935), and even volunteered that the Division of Workers' Compensation has regulatory authority over the system. I asked the bot who the most prominent workers' compensation lawyers in Florida are. The responses to that were intriguing and included lawyers I have never heard from/of. It concluded:

"There are many skilled and experienced workers' compensation lawyers in Florida, and the best one for you will depend on your specific needs and circumstances."

Artificial intelligence has mastered doublespeak?

I asked it what the best electric car is. The results were predictable and all well-known. Having done some reading in this area, I was admittedly surprised not to see the names of some of the smaller manufacturers and models in that list. The query concluded:

"It is important to research and compare different electric car models to find the one that best fits your needs."

I asked it "what Florida workers' compensation case concluded misrepresentation in a job application was a bar to benefits?" I asked the same question to 5 lawyers of imminent credentials at the recent Workers' Compensation Forum. Four out of five of them said Martin v. Carpenter. The fifth said "I don't know, what time is lunch?" Everyone needs priorities.

The ChatGPT responded with "a notable case" that involved misrepresentation was Wendy's International v. KM. This, it said, was a "Florida First District Court of Appeal" case in 2009. I was not able to find that case. I did find KMS Rest. Corp. v. Wendy's Int'l, Inc., No. 95-08546-CIV, 2009 WL 10667054 (S.D. Fla. Nov. 2, 2009). The names and the year were correct. 

I asked the AI for the citation for this KM case. It provided 10 S. 3d 469 (Fla. 1st DCA 2009). I checked that citation with a search in Westlaw and found that volume and page is within Am. States Ins. Co. v. Rogillio, 10 So. 3d 463, 469 (Miss. 2009). Sure, Mississippi is close to Florida, and both cases are in courts, and yes the Mississippi Supreme Court does mention "misrepresentation" in its opinion. But, it is a worthless citation for the question asked. Close is just not close enough in this context.

I clarified with ChatGPT, asking "what was the first Florida appellate decision that said misrepresentation in a job application could bar workers' compensation benefits." It replied that "the first" was O'Neal Steel v. Gutierrez in 2001. This, it said, involved "failing to disclose a prior back injury."

Unfortunately, with name searches, I was unable to find that case on either Westlaw or Google. I switched to Bing, but it could not locate the Gutierrez case either. I asked the ChatGPT for a case cite and it provided 776 So.2d 30 (Fla. 1st DCA 2001). I put that citation in Westlaw. This returned a page within Maher v. Maher, 776 So. 2d 28, 30 (La. App. 5 Cir. 11/28/00). Now, Louisiana is a little farther from Florida than Mississippi. The Maher case does not mention misrepresentation.

On Westlaw, I ran an advanced search for "Gutierrez" between January 1, 2001, and December 31, 2001. I got 26 responsive returns. None of them was the case cited by ChatGPT. None of them was patently a workers' compensation case. Only one was decided by the Florida First District Court, and it read "The petition for writ of certiorari is Denied." Guiterrez v. F.D.R. Cleaning Servs. Inc., 804 So. 2d 368 (Fla.1st DCA 2001).

I tried running the search in Westlaw for "O'Neal Steel" in the same date range. The return was one case: Knowles v. State, 800 So. 2d 259 (Fla. 2nd DCA 2001). Not the First District. Not a workers' compensation case. Not helpful.

In short, I cannot seem to find this interesting case of misrepresentation. Though it is reportedly a "notable case," it is very elusive, like a snipe, bigfoot, or other-worldly alien. Most of the cases Chat sent me to are non-existent, or hiding really well. I am not saying that this case is not out there, nor that it is not "notable." I am merely saying that the chat is better than I am at finding cases.

I tried to limit the field a bit. I asked Chat "what is Florida's leading constitutional decision on irrebuttable presumption." it replied

"The leading constitutional decision on irrebuttable presumption in Florida is the case of Vacco v. Quill, decided by the United States Supreme Court in 1997. It assured that "Although this case did not arise in Florida, it is considered the leading case on irrebuttable presumptions under the United States Constitution, which applies to all states including Florida."

This one is an actual case (found it on Google), and it was actually decided in 1997. Vacco v. Quill, 521 US 793 (1997). This is a unanimous decision of the Rehnquist court, written by the Chief Justice, William Rhenquist. The Court's opinion mentions "presumption" twice. The term "irrebuttable" is not included.

That said, as we prepare legal documents and submit them as evidence, argument, and authority, perhaps you may want to use something other than artificial intelligence for your citations. If I cannot find the case you cite, I cannot read the case (unless you actually looked at it when you cited it, in which case attach a copy to your memorandum and save me the looking). In my recent conversations at the Forum in Orlando, several lawyers suggested that their peers are not looking at those cases, merely parroting citations from the web. I trust that is untrue. Have we really sunk to that depth?

In closing, I asked GPT "can I rely on you for accurate and complete information?" Chat assured 

"I strive to provide accurate and complete information to the best of my abilities based on the data available to me. However, please note that my responses may not always be perfect or complete, and should be taken as informational guidance only. It is always a good idea to verify any important information with additional sources before making important decisions." 

Well, that made me think of William Joel, bard and lyricist of great repute, and his Second Wind (1985). ChatGPT was able to find that song for me with a single lyric search. Its response was quick, accurate, and helpful. 

You're having a hard time and lately you don't feel so good
You're getting a bad reputation in your neighborhood
Sometimes that's what it takes
You're only human
You're allowed to make your share of mistakes

In the end, it seems, that artificial intelligence is "only human" and is bound to make its "share of mistakes." Perhaps that is what the commenter meant when she/he said "haven't you always been" playing with artificial intelligence?

By Judge David Langham

Courtesy of Florida Workers' Comp

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