A Request to Refile Brief to Correct Hallucinations Was Denied

A contract attorney for the Montana Appellate Defender Division (“ADD”) filed an opening brief for appellant.  The contract attorney Okeyo moved to withdraw the brief, stating that the Opening Brief contains “some factual inaccuracies” and “imprecise citations.”  He admitted that the brief  “factual narrative overstates the available record….”

The State opposed the motion, arguing that it had “spent considerable time” in “detailing” the inaccuracies. It argued that “Appellant should not now be permitted to refile the Opening Brief to address the shortcomings the State identified in its Answer Brief.”

A different ADD attorney entered an appearance and reported that the prior attorney “informed ADD that he used an artificial intelligence (‘AI’) tool in preparing the brief and [the prior attorney]  failed to sufficiently review the brief for accuracy prior to filing it.”  Later, ADD reported that prior counsel had said that he used AI to “revise” the brief. New counsel stated that the prior attorney had been removed from the case.

The new attorney “renewed the request to allow the Opening Brief to be withdrawn and requested leave for new counsel to be permitted to file a new Opening Brief.”

The Supreme Court of Montana agreed with the State:

After due consideration, we are denying the motion to withdraw the Opening Brief in this appeal. We agree with the State that Feme’s appellate counsel may address the issues in the Reply Brief. M. R. App. P. 12(3) provides, in relevant part, that reply briefs must be confined to new matter raised in the Appellee’s answer brief. In this instance, we will allow new appellate counsel greater latitude in addressing the State’s arguments, including correcting factual errors and offering more precise legal authority in support of Appellant’s arguments and we further extend the deadline for filing the brief.

The court ordered that “Appellant shall prepare, file, and serve the Reply Brief within 30 days of the date of this Order.”