Tag: Colorado

Colorado judges discuss the pros and cons of AI

This is an interesting article on a recent panel discussion in Colorado, in which state and federal judges shared the courts’ emerging views on generative AI with the rest of the legal community. It is clear that, like the rest of us, courts are struggling to achieve the right balance between AI as an impermissible shortcut and AI as an efficient game-changer.

And AI can absolutely be that game-changer for written materials. Current iterations of AI tend to write in a dull and wooden style, at least for legal work. But short motions and briefs can be drafted in a matter of seconds (and polished within minutes), rather than taking hours to draft and revise. And the output is grammatically correct and readable, which is a huge plus. Thoughtful use of AI in written submissions might alleviate the problems that stem from the notable decline in younger lawyer’s writing skills.

It seems that we are headed in the direction of treating AI like a paralegal or inexperienced attorney — eventually its use will be explicitly permitted, but failure to confirm all the details will be an ethical violation in itself. Stay tuned.

The courts are still in Phase I of their relationship with AI — but change is coming

This week, the Colorado Court of Appeals issued its first opinion cautioning litigants about relying on generative AI to draft legal briefs, joining a number of other courts that have similarly warned (and sometimes sanctioned) parties and lawyers for including “bogus” AI-generated case citations. 

Judicial pushback against the errors caused by ChatGPT and other early publicly available AI models is sound policy, no different than teachers balking at AI-generated student essays. The AI programs currently available to the public can be astonishing in their creativity, but are also prone to hallucination and more often than not produce a mediocre result. Professor Ethan Mollick has compared such programs to a tireless but clumsy intern — eager to please and lightning fast, but lacking polish, sophistication, or accountability to reality. So it is natural that the courts’ first priority is to put out the fire of fake case citations.

But one should not confuse legitimate concerns about flawed AI today with pessimism about the transformative power of AI going forward. AI’s large language models are learning very quickly, and a rapid influx of users will spur even more rapid development. Legal research services like Lexis/Nexis and Westlaw have introduced their own first-generation AI services, which aim to connect more rigorously to actual legal precedent. It will not be long before legal research is indeed faster, better, and more thorough than ever before — a change akin to the introduction of electronic legal databases in the 1980s.

The courts, too, are not too far off from embracing AI for their own purposes. In Phase II, judges and court staff will rely on AI to read briefs and transcripts, summarize arguments, check citations, and even produce questions for oral argument. In Phase III, they will use AI to draft opinions and orders, initially in low-stakes cases (to help with the workload) but eventually in high-stakes, complex litigation. In Phase IV, AI itself will hear the case, render the decision, and draft an order or opinion.

Phase IV may feel futuristic, but it is coming, and sooner than we think. State courts in particular are contending with a massive increase in self-represented litigants — individuals who have real legal problems but who cannot (or choose not to) pay a lawyer to help guide them through the system. Many have cases that are legally straightforward (such as a basic contract dispute) and may be willing to submit those cases to an AI “judge” with the promise of a quicker and less expensive resolution. As AI improves, such judging programs eventually will be available on demand and from the comfort of one’s own home, no different that the modern telehealth industry. They may start as private, ADR-style offerings that compete with courts for customers, but eventually court systems themselves will feel pressure to embrace the same technology.

Of course, courts will not move into AI judging lightly, and nothing will happen until the courts are convinced that whatever system they employ can guarantee an accurate application of existing law, preserve the guarantees of due process, and protect confidentiality as needed. But we are on cusp of a major technological transformation that could benefit resource-starved courts and decision-starved parties in equal measure.

In Memoriam: Gregory J. Hobbs, Jr.

Thoughts on the loss of a mentor and friend.

Hobbs and JMS 7-22-15

This is a tough one.

Former Colorado Supreme Court Justice Greg Hobbs passed away last week, just a few days short of his 76th birthday. I was privileged to clerk for Justice Hobbs during the court’s 2000-01 Term, and he remained a professional mentor and personal friend for twenty years thereafter. Justice Hobbs showed me how a good judge conducts himself. More importantly, he showed me how a good person conducts himself, day in and day out.

Coming out of law school, I was very fortunate to have several clerkship offers to choose from, both at the state and federal level. But I instantly gravitated to Justice Hobbs. Although he did not move to Colorado until after he had graduated law school, he effortlessly exuded a Western passion and a Western sensibility that clicked with my deep Colorado roots. He embodied almost every Western stereotype you can imagine — outdoorsman, water lawyer, connoisseur of huevos rancheros, Bronco fan, relentless fan of bolo ties — but his deep knowledge of the state and its people made all of it seem so natural. (He could look out the window of his office in downtown Denver and rattle off the names of all the visible Front Range mountains, working from south to north.) Greg Hobbs was Colorado, and he always had the best interests of Coloradans at heart.

Continue reading “In Memoriam: Gregory J. Hobbs, Jr.”

In Memoriam: Mary J. Mullarkey

Today brings the sad news of the passing of Mary Mullarkey, a member of the Colorado Supreme Court for 23 years and Chief Justice of the Court for twelve of those years. Chief Justice Mullarkey was an outstanding judge and a tireless leader of the state’s third branch.

I was fortunate enough to clerk on the Colorado Supreme Court during Mullarkey’s time as Chief Justice, and saw what a wonderful mentor and colleague she was. She was a giant in the state’s legal community, and will be sorely missed.

State courts come under legislative assault

State legislators are trying to politicize their judiciaries for short-term gain. Courts, their users, and the public must speak up to stop them.

The first weeks of the 2021 legislative session have seen an extraordinary number of proposals to overhaul the selection of judges or otherwise affect the composition of state judiciaries. Among them:

In Montana, Senate Bill 140 would eliminate the state’s judicial nominating commission, giving the governor direct appointment power over district court judges and state supreme court justices. The nominating commission, in place for nearly half a century, was expressly implemented to depoliticize the judicial appointment process. Despite an outpouring of criticism for the proposal, which is widely seen as a partisan gambit by new Governor Greg Gianforte and Republican legislators, the bill passed the legislature last week. If signed by the governor, the bill would make Montana a national outlier in its refusal to use an independent nominating commission.

In Alaska, a very similar bill would eliminate the role of the state’s nominating commission for the appointment of judges on the district courts and state court of appeals. Senate Bill 14 was introduced by Republican senator Mike Shower in late January. As in Montana, the bill has been panned as “a concerted strategy to dismantle Alaska’s system of selecting judges based on merit and replace it with a process that relies primarily on politics.” Alaska’s Chief Justice, Joel Bolger, similarly criticized the bill as undermining a well-established and respected judicial selection process. Continue reading “State courts come under legislative assault”

Colorado’s Chief Justice on court operations, judicial selection, and experiential diversity

The Colorado Springs Gazette has a terrific short interview with the state’s Chief Justice, Brian Boatright, on a wide variety of issues related to court operations and interdependence. Here is a taste:

[Q]: Is there any change during the COVID-19 era that you believe the Supreme Court couls permanently incorporate into its work post-pandemic?

Boatright: I believe that we will incorporate the practice of allowing attorneys to make oral argument remotely in certain circumstances. The pandemic has taught us that oral arguments can be efficient and effective wheh done virtually. I expect that attorneys who previously has to travel significant distances to present their arguments will want to take advantage of that option. Hopefully, that flexibility will reduce costs for their clients.

Chief Justice Boatright also discusses experiential diversity on the court, the role of collegiality, and the benefits of Colorado’s judicial selection system. It’s well worth a full read.

 

Judicial evaluations and the retention voter

I was interviewed extensively for this piece in Denverite about Colorado’s judicial performance evaluation (JPE) program. The primary takeaway is that voters should feel very comfortable with a program that works so hard to evaluate judges on the process (as opposed to the outcomes) of judging.

A number of states have excellent JPE programs, but not enough. Done properly, JPE benefits voters, the general public, and most of all the judges themselves. It should be part and parcel of every state and federal judicial program.

State courts extend and explain COVID-19 protocols

Yesterday, the Supreme Court of Colorado and the Supreme Judicial Court of Massachusetts respectively sent letters to their registered attorneys, informing them of recent measures taken to address the COVID-19 pandemic. Massachusetts will be extending its courthouse closures for most matters, including all jury and bench trials, while tolling statutes of limitations through the end of May. Colorado has delegated considerable administrative decisionmaking authority to the chief judge of each judicial district, in acknowledgement of the different circumstances and available resources in each district.

Experiential diversity on the Supreme Court is a pipe dream — at least for now

Lawrence Friedman’s recent post lays out a compelling case for achieving educational and experiential diversity on the Supreme Court. He looks to the states for guidance, noting that courts of last resort at the state level frequently feature highly qualified justices who graduated from a wide range of law schools and who feature an extensive variety of practice experience.

It’s a tantalizing analogy, which works well in some states but doesn’t translate to the federal level. Still, there are glimmers of hope for more experiential diversity in future iterations of the Supreme Court. More below. Continue reading “Experiential diversity on the Supreme Court is a pipe dream — at least for now”

Two states aim to reorganize court structure to promote efficiency and fairness

Separate stories this week show how two state governments are working to reconfigure their court systems in response to growing dockets and concerns about cost, efficiency, and fairness.

In Colorado, a bill to create a new judicial district passed through the House Judiciary Committee. The proposal would split rapidly growing Arapahoe County off from the rest of the 18th Judicial District in order to better (and more fairly) allocate resources among the four counties that currently comprise the district. Arapahoe County has seen a recent spike in criminal prosecutions and especially murder trials (a depressing fact for this former Coloradan), and the growing criminal docket led many to believe that placing it in its own new judicial district would be BBC a better use of resources. The bill has broad support. If passed, it would go into effect in 2025.

In New York, the court system itself is taking the initiative to improve its efficiency and administration. This article by Chief Administrative Judge Lawrence Marks points out that consolidating the state’s Byzantine court system (which currently has 11 different trial courts) would save litigants and the public hundreds of millions of dollars every year. As in Colorado, the proposal has strong support but would need legislative sign off.

These are nice examples of interbranch cooperation for the benefit of local residents and taxpayers. More like this, please.