Artificial Intelligence will cost you real money in litigation, and that's no hallucination.

 The full weight of the AI industry is leaning on the legal profession. The large legal research providers to smaller niche companies have unleashed a constant and unrelenting barrage of marketing aimed at lawyers. They intend for us to relinquish time and professional discretion in the conduct of core lawyer activities. 

Many have succumbed, ceding to algorithms the tasks of preparing substantive letters or emails, and legal memorandums for submission to courts, the latter often producing dire consequences for both lawyers and clients. 

I have always been an early adopter of tech. My legal career started shortly before the birth of desk tops, portables, and all things Microsoft. My professional development has followed an arc roughly congruent with introduction of DOS, Windows, portables, cell phones, the internet, Google, email, practice management, client data management, cloud computing and social media. It has been a wild ride, but none of this sought to replace the core function of your lawyer-- contemplative thought and problem solving. In fact, almost all tech developed to date freed your counsel to shed administrative tasks in favor of deeper considerations.

Courts across the Country are now admonishing and punishing the use of "hallucinated cases" in briefs and argument. Large firms and small, alike, are falling to AI industry pressure to cede research and writing to tech. The lucky perpetrators survive with warnings and fines. The less fortunate lose the privilege to practice law, and their clients suffer catastrophic loss in their cases. 

One recent decision out of Georgia demonstrated the harm of judges relying on hallucinated case citations copied from the court submissions of lawyers in the case. It was a situation where a trial judge ratified the fake legal conclusion of a fake legal precedent submitted by a lawyer who was too lazy to double-check the product generated by his AI product. Imagine the thousands of wasted dollars expended by the parties to unwind this fiasco through the appeal.

In another jurisdiction, a judge caught the use of hallucinated case law by one lawyer, only to admonish opposing counsel for their failure to bring the situation to the court's attention. This signals a trend to impose additional burdens on your lawyer to actively seek out and catch your opponent's reliance on fake law. At the very least, it might cost ten minutes of billable time to check a single case citation in a brief. It would add great expense for your lawyer to now review every single citation, even for standard propositions that often need not be double-checked, for fear of violating the newly imposed duty to back check opposing counsel's use of AI.

Very recently, I was being interviewed by a prospective client over the telephone. In real time, during our call, I was being told that "well, ChatGPT says you are wrong..."  I simply asked the prospective client "does ChatGPT have malpractice insurance, if it is wrong?" 

Within the last month, prospective clients have sought to engage our Firm to fix their botched AI court submission, and to avoid dismissal of their cases by really angry judges, and to avoid sanctions sought by really angry opposing lawyers. At much additional cost to the clients, we can do this, and only then return the case to a consideration of the merits. Every dollar spent to return the case to normal is both necessary and wasted.

One prospective client presented our Firm with their "completed" motion and memorandum, comprising over thirty-pages and hundreds of court citations. They were surprised and disappointed that I would decline such a "slam dunk" where all the work has been completed by AI, and I needed to only sign my name and file with the court.  As I scanned the proposed submission, I could hear the snakes slithering in and through the woodpile of AI generated case citations, none of which I recognized after almost four decades of practice. 

A very significant risk created by over-use of AI was reported, this past week, by a New York judge. The judge held that use of AI, which includes typing in very specific facts and details about one's case, can operate to obliterate the protection of the attorney-client privilege. This means that otherwise privileged information, which need not be shared with the opposition in discovery, becomes exposed to mandatory disclosure because it was already shared with a third-party, the AI platform and algorithm. Over the immediate short term, this will be the hottest area of litigation, and the greatest multiplier in your litigation cost-- the fight over whether your use of AI, or the use by your lawyer of AI, in the conduct of your case has stripped away the ordinary protections of the attorney-client and work-product privileges. 

AI has added another wrinkle to how you hire and work with lawyers. Please insist that lawyers you hire conduct their own legal research. AI can certainly improve the prose of otherwise poor writers, just as it can ruin the product of otherwise polished brief writers. But you should never accept the risk that your lawyer has ceded their legal research and analysis function to AI. It should be something that is written in your fee agreement or engagement with the lawyer or Firm.

The real attraction of magnetic North.

 You know that magnetic north shifts, over time, right? This is where the science of survey, or "boundary retracement", can confuse we ordinary folk. In our practice of real estate litigation and problem solving, this is a recurring topic of investigation.

The concept of "meridian" is generally reference to the North-South axis that forms the basis of a boundary retracement. Think of any map you have ever examined, and recall the compass rose in one of the corners of the document, telling you where to locate North in relation to the drawing. The line along that axis is your meridian, for purposes of that drawing.

But, did you know that the location of magnetic north changes, over time? Because it is based on the earthly location of magnetic north, it shifts. This can create what surveyors call an "error of closure." In short, the ending point of your legal description may not meet the beginning point. How can this happen? 

Imagine a non-professional who attempts to prepare a deed description of real property. And imagine further that this person researches all the surrounding deeds, and then borrows the written description of common boundaries (those shared by the property being described, and the neighboring parcels). If the borrowed line descriptions come from different decades, then it is almost certain that the description will not close. It will have a large error of closure that must be fixed.

In this image, the red line depicts the gap between a beginning point, and the ending point of a deed description that was prepared by a non-surveyor, using data borrowed from a range of deeds, from the 1800s to the 1970s. This created a divisive dispute among several neighbors about rights to use a shared driveway, shown running through the middle of the red line. This is a very common dispute in our legal practice of real estate and property law.

Now that you know that magnetic north can shift over time, you already understand why a non-professional can easily mess up an attempt to create a deed description:  Boundaries are all relative to the meridian of the time. The deed author must understand the meridian of the time, and make necessary adjustments to conform old descriptions with newer descriptions. 

For example, if magnetic north has shifted 5 degrees over a certain time, the angles and calls of the new deed must account for this. This adjustment is needed if the mismatched lines are to close. It's the geometry calculations you hated to do as a student.

Why is any of this important to you? Well, many of the lawsuits and neighbor disputes that arrive in our law office are based on this common misunderstanding about surveys and boundary retracement. Fights about easements, access, and building locations spin out of control where the parties simply do not understand that their deed descriptions, in whole or in part, may simply be poorly drafted.

With the help of our experts, we might help resolve your neighbor conflict, with or without litigation. It all begins with an understanding of true north.

Extend your neighbor a hand, not a bullet.

 Brian Ford was shot by his Florida neighbor while trimming trees along their shared property line. Read the full news article, here. 

This is an extreme example of boundary disputes gone horribly wrong. Our Firm has been, and continues to be involved in neighbor disputes over boundaries and overhanging trees, extended flower and crop beds, and encroaching pools, decks and bow windows. Each and every one a potential flash point for violent confrontation between otherwise law abiding folk.

In one long-ago case, I was walking through a client's wooded lot in one of Maryland's more rural Counties. The purpose of my visit was to eyeball a "logging road" that was in dispute. A neighbor claimed rights to use the logging road for development of multiple subdivided lots. My client believed that the intended logging road was located elsewhere, or had disappeared, as historical facts demonstrated that logging roads move over time, with logging operations. 

It was late afternoon and I was casually crunching through the underbrush in search of a discernible path. I stopped immediately upon hearing the "click" of a shotgun being chambered and cocked behind me. 

"Who the **ck are you?" bellowed my inquisitor.

"I'm the lawyer for the owner of this land...I have permission to be here!" I squeeked (in the most authoritative voice I could muster in that instant).

My heart beat once, then twice, a bird chirped, and then...

"Aw, heck, you're MY lawyer!"

And we had a hearty laugh, a handshake, and a nervous discussion about shooting lawyers out-of-season.

George Washington wrote that personal freedom and property rights are inseparable. The more visceral reaction many like the shooter in the Florida have to any perceived encroachment speaks to how deeply this concept is embedded. Inherent decency and problem solving learned through the social institutions of family, school, church and community should, and often does buffer such an immediate and deadly adverse reaction. As lawyers, we seek to channel such disputes away from violent confrontation to alternate dispute resolution in forums like mediation, arbitration or trial.

It is cheaper to engage a civil litigator than to hire a criminal defense attorney.

Baltimore City is coming for your vacant. Are you ready?

 Rehabbing vacant Baltimore City rowhouses is essential for continued revitalization. A refreshed housing stock supports surrounding property values, attracts  new residents, and provides the basis for community stabilization. All of these elements are essential to lower Baltimore's crime rate.

However, many rehab projects never take-off, or stall for unforeseen difficulties-- owners can fall victim to a range of personal and business problems that delay or interrupt construction. We have seen them all.

Mayor Scott recently announced a thirty day study period by all departments of City Government. His stated goal is to immediately reduce the City's glut of vacant properties. To this end, the City's January 31, 2022 press release announces that:

As of January 28, 2022, there were 15,032 vacant houses in Baltimore City. About 13,560 of these vacant properties have private owners. Approximately one-third of the vacant buildings are already under a transformation: being rehabbed by a private owner; part of a larger redevelopment plan; in court under a vacant building receivership action; being prepared for demolition; or a City-owned vacant available for immediate sale to a qualified buyer ready to rehab. The Department of Housing and Community Development under Commissioner Alice Kennedy has ongoing initiatives in place to acquire and convert, stabilize or demolish these vacant houses. This directive aims to accelerate, expand, and enhance these processes and reduce the number of vacant homes in Baltimore City.

Young & Valkenet has represented owners, lenders, title insurers and contractors in all phases of Baltimore City receivership actions. We also represent adjoining neighbors who own property that has been damaged by the poor condition of a Baltimore City vacant.

Happy Holidays to all our clients, friends, and opposing counsel!

 

Maryland's Court of Appeals adopts tech changes to make justice more accessible.

This week, Maryland's highest court, which makes the rules dictating how litigation is conducted in all of our courts, adopted rules making access to justice a bit easier.

Spurred by the inconvenience visited by COVID-19, where mandatory closures prevent many court room activities, the Court approved the following;

• Video conferencing in the District Courts- A visit to the District Court is often akin to a visit to the MVA. The waits are long, the rooms crowded, and you are often told to return, again, on a later day. Soon, many conferences and hearings will be held by video participation.  What remains to be worked out is whether persons without internet or a computer may still participate in person, or whether this innovation has created another practical impediment to court access for some.
  
• Electronic filing for appeals- Three of Maryland's largest jurisdictions are Baltimore City, Prince George's and Montgomery Counties. They are not yet set up for electronic filing. Appeals to the courts in Annapolis are thus not done electronically. That has been changed.  While filings in the Circuit Courts must still be mailed or hand-delivered, appellate filings to the courts in Annapolis will be via the on-line portal.  This is a modest improvement, but a step toward uniform efficiency.
  
• Remote video depositions- The current rules of procedure do not contemplate remote participation via video. Taping is routine, but it still requires gathering in one location. The conduct of remote discovery can add efficiencies to litigation, while also adding complexities that drive up costs for litigants. It also creates opportunity for shenanigans, where remote deponents may be secretly coached or manipulated by off-camera persons or devices. 

We will help you manage these innovations, and move your cases to the swiftest conclusion our system will allow. Changes must be made, and they will breed additional modifications in how we conduct your cases. We will adapt and grow with them. As the CEO of Uber reminds us, "ultimately, progress and innovation win."

Litigating in Overtime - How to "undo" a final judgment and reported decision.

The law exists to give us finality. Litigants seek final dispositions of their business disputes, whether by mediation, arbitration, trial or appeal. Future conduct is often guided by a final decision by a court. As a law firm, we work hard to achieve litigated outcomes that benefit our clients. Recently, our work lead to a reported decision from the Maryland Court of Special Appeals. We both won for our specific client, and obtained broad statements of law that would guide similar cases involving others. The case was done, except that we were not done with the case.

My client was sued in the Circuit Court for breach of an alleged contract. The Plaintiff demanded significant money damages. Our client prevailed in the trial court, persuading the judge that a trial was not necessary. Our client received a summary judgment.  On appeal, the Court of Special Appeals affirmed the trial court-- issuing a reported decision.

Reported decisions are important. They represent a small percentage of cases decided on appeal. A reported case becomes part of Maryland’s permanent body of judge-made law. A reported case goes beyond resolution of the dispute between those particular litigants. A reported decision guides the future conduct of all similarly situated persons in Maryland, until the case is over-ruled or the law is modified by yet another case. This is how Maryland’s common law grows and evolves.

Trial lawyers, like us, really do enjoy winning. And we enjoy it just a bit more when the win also results in a reported decision.

In our recent case, however, our opponent filed a timely motion for reconsideration to the Court of Special Appeals, tolling the issuance of the Court’s mandate.  While the motion was pending, and before an opposition was due, counsel for the losing party made a settlement offer that would greatly benefit our client. But to accept the offer would require that we work with the other side to vacate a reported decision.

How does that work? My client was eager to accept the offer -- who wouldn’t want a check, despite being sued?  But the hangup, I thought, was: how do you vacate a reported decision?

The answer, it turns out, lies in Md. R. 17-404(f), which permits the Court plenary authority to dispose of cases that are resolved through the CoSA ADR division.  And so, with the assistance of the director of the CoSA ADR division, we submitted a consent order which was vetted and approved by the Chief Judge.  Within a matter of days, a consent order was issued by the CoSA vacating the reported decision, withdrawing the decision for reporting, and remanding the case with instructions for the Circuit Court to vacate its order and dismiss the case with prejudice.

Final judgment, then, need not impede a favorable settlement. A winner might do just a little better, and a loser might avert complete catastrophe, by continuing settlement negotiations right through the very end of a case.

I am ready to re-embrace arbitration.

For 30+ years arbitration has been the Boston Red Sox of my law practice- a second favorite. I have participated in hundreds of arbitration proceedings, as my clients often make contracts requiring this mode of dispute resolution. Given a choice, though, I have grown to prefer court trials, before judges and juries.

The extra administrative costs imposed on clients to commence arbitration in complex or high value matters is often far greater than the costs of initiating and prosecuting court action. Filing fees in arbitration are often based on a sliding scale tied to the value of a claim. A court filing fee is slight, regardless of the value of the case. Coupled with the ongoing administrative fees charged by some organizations the cost to merely access the arbitration process can be exorbitant. The discovery process in arbitration is not all that much shorter or less expensive then court cases- documents must still be produced, depositions taken, and experts retained in both forums.

Hearings and trials can be crowded affairs. While discovery can be conducted piecemeal, over time and with varied participants in varied locales, hearings and trials are mostly convened in crowded government buildings. Just getting to the courtroom can be an ordeal. Many local jurisdictions are now imposing mandatory temperature monitoring and completion of health screening questions upon entry. The courtroom itself can then be as crowded as any church on Sunday.

But my favored courtrooms are ill-equipped for post-COVID dispute resolution. The buildings we admire for their historical details, and those we tolerate despite their dated or cramped layouts, are simply not conducive to social distancing. It is going to take years, and bundles of tax dollars, to retrofit these facilities for modern and safe dispute resolution.

So that we may serve our clients, now and for the immediate future, all lawyers who rely heavily on litigation must reassess whether the courts remain the best forum for dispute resolution in complex civil matters.

I am ready to re-embrace arbitration because the most readily controlled facet of the process is location. An arbitration can be conducted in any mutually agreed location, of any size, and can be readily mixed with remote broadcasting. The forum can be tailored to the specific needs of any party, witness, lawyer or arbitrator. 

Every case includes persons suffering some manner health issue that compromises their immune systems. During the halcyon days of last December, most personal health issues would have been unworthy of a mention in the context of a case. Today and until we are all vaccinated, however, the relative health of all participants in a legal dispute must be acknowledged, respected and accommodated.

Some items that I might consider for future arbitration cases include:

The participants- Whether any person who will participate or appear has a particular health vulnerability that must be accommodated by particular hygiene protocols, space or distance technology. These issues might pertain to one, some or all participants.

The space- Where the space is located, how it must be accessed, and whether it is sanitary. The public library conference area may be less of a controlled environment than the conference center of a court reporting service or hotel, for example.
The technology- Where remote participation by video is necessary because of health concerns, whether it is secure and truly interactive, and can it be intentionally or inadvertently misused.

The cost- The very issue that often pushed me in the direction of a courthouse remains an important consideration. Extra health protocols, technology and spacing will only add to the costs associated with arbitration. This is simply not avoidable until every person has been inoculated against the disease.

The cost-benefit analyses done pre-COVID for existing cases are no longer reliable. Employed clients may be unemployed, entities may now be financially strapped, and the immediate financial needs and burdens for all have certainly changed. These factors, including the human cost of litigating in court versus a private arbitration, are now interacting in a way that requires a top to bottom review of how cases are valued and conducted to disposition.

I am ready to re-embrace arbitration as part of this practice wide re-evaluation.

Justice can be yours.

Add Young & Valkenet to your litigation team.

A duty of candor applies in tax sale cases foreclosing rights of redemption.

Our real estate litigation practice touches some of the saddest moments of client life, such as where a family home is lost to tax sale. When real estate taxes and other municipal charges are unpaid, the municipality will auction the property to the highest bidder.  The winning bidder must pay the tax due to the municipality. The winning bidder is then given the privilege to later file a new lawsuit to permanently take the real property from the defaulted taxpayer/owner.

The lawsuit to take ownership of the property asks a judge to extinguish the title owner's "right of redemption."  This is a right to refund to the successful auction bidder the taxes paid to the municipality, plus various fees, interest and expense allowed by statute. The defaulted taxpayer/owner can make this payment, or "redemption," right up to the moment a judge's gavel falls in the lawsuit.

If that redemption is made, all is well and the taxpayer/owner is fully restored to her property.

Where the redemption is not made, usually because of the very hardships that prevented payment of the original tax bill, the court will issue a final order "extinguishing rights of redemption," and granting fee simple title to the successful bidder. This is where today's story begins.

Much of the tax sale and foreclosure process runs on the good faith and professionalism of the lawyers prosecuting the cases--- Our judges rely on truthful representations about service, the status of non-payment, and the material facts of each case. Our rules of professional conduct call this a "duty of candor."  It often requires a lawyer to disclose facts, circumstances and  controlling law that might impair or even defeat the relief she seeks from the court.

The duty of candor greases the gears that run our courts. If counsel is not deemed truthful, she will not obtain desired results. Worse, if counsel is not candid and wrongly obtains a result, then the integrity of our court system is damaged. Further to that point, in a society built on a foundation of property rights, any perversion of the court system by which ownership is involuntarily stripped from one person and awarded to another damages our Nation.

Where a lawyer and her client seeks to foreclose rights of redemption, the order issued by the court contains several requirements, all of which must be met before the lawyer's client may evict the current occupants of the foreclosed property:

1. Pay the full bid purchase price to the municipality (this is the amount bid above the amount of the delinquent tax);
2. Receive a deed from the municipality naming the new title owner;
3. Request and receive writ of possession (a court instruction to the Sheriff directing that the new owner be put in actual possession of the real property;
4. Execution of the writ by the Sheriff (after notice of a date certain, the occupants and their possessions are put out).

The redemption statute in Maryland is written so that the auction bidder has 90 days to pay the full bid price and receive a deed. If this is not done to completion, interested parties may move for a court order vacating the order foreclosing rights of redemption. This may or may not occur, as most folks subject to tax sale foreclosure are caught up in the basic need to secure safe and clean housing.

It is at this point of the proceedings that an attorney's duty of candor is most required for the just operation of our court. The statutes do not expressly say that payment must be made to the municipality before a writ of possession is requested. However, it is logical and just to anyone with a real property background that payment must be made before title can be received, and that title must be received before one has rights to actually possess property, and that one must have legal possession before relying on judicial process to evict the former owner and occupants.

This is not always the case, though, in our local court systems. Some high-volume tax sale foreclosure businessmen and their entities seek writs of possession (item #3 on the list, above) before making full payment in exchange for a deed showing their ownership. This creates the injustice of dispossessing the prior owner while depriving them of the money representing equity in the property. In short, they have lost the property, and they are simultaneously deprived of the money paid for the property.

A recent case handled by this Firm illustrates the issue, and how the court handles such lack of candor when it is revealed.

Our client, an elderly individual with dementia, lost his home to tax sale. His legal guardian could not redeem the property, and so the court issued the order extinguishing rights of redemption and directing the four items, listed above, for the transfer of ownership to the successful auction bidder.

The successful bidder, through its lawyer, made immediate request for a writ of possession, before making full payment and before receiving a title deed. The request filed with the court and upon which the judge relied did not candidly disclose that payment had not yet been made. The court issued the writ, and the Sheriff arrived to put the elderly individual out of the house, with the assistance of his care-giver and guardian.

It was only after this Firm filed a request to set aside the order for the lawyers lack of candor that the successful bidder made payment. But this payment was two months after the elderly individual was put out, and after the successful bidder spent over 50,000 renovating the property in preparation for a flip.

The judge hearing the motion found that the successful bidder had, indeed, jumped the gun to request a writ of possession before having paid for the property. This fell under a rule applicable to all lawyers and litigants, in all cases, barring claims made "without substantial justification." In this instance, like many others that go unnoticed, the successful bidder sought to use the equity in the property as a no-interest loan from the former owner to prepare the property for sale. Without court intervention, the property would have been flipped and those proceeds of sale used to fund payment to the municipality of the bid price.  The municipality would have been asked to issue the deed directly to the new third-party owner, or two deeds would have been executed simultaneously.

And throughout that process, our elderly client would have been deprived of both a home and his money. The judge was as appalled as you likely are while reading this story.  It was for the lack of candor that damages were awarded to our elderly client that included emergency hotel costs and our attorney's fees.

The duty of candor applies to all cases, in all courts. A lack of candor by your opponent, if proven, may well permit you to vacate a prior judgment or to obtain money damages, even where  all appears lost.

Civil Litigation is a Roller Coaster!

We help you live your best life.

Business leads to litigation.

Let your lawyers be excellent.

Make your opponent take notice.

Maryland lawsuits can be a whale of a problem

A contract is a collection of promises. When a promise is broken, it may require court action to get the remedies you seek. We can help!

A lawyer's help before a deal is made in Maryland can avoid future disputes.

Defense of a Maryland lawsuit requires leadership.

Trial Reporter, 2016, Journal of the Maryland Association for Justice, Inc.

This Special Issue, 2016, includes Mr. Valkenet's article on use of limited scope engagements in Maryland civil court cases and administrative actions.

Call us with questions. 410-323-0900.