From left: Mariem Marquetti and Hon. Debra Squires-Lee
Hon. Debra Squires-Lee has served as a justice of the Massachusetts Superior Court since 2018. Prior to joining the bench, Judge Squires-Lee was a partner at Sherin and Lodgen LLP. Mariem Marquetti, Complex Commercial Litigation Section Council member, sat down with Judge Squires-Lee to discuss the impact of both generative artificial intelligence (AI) and bias in the practice of law.
Below is a summary of the question-and-answer session with Judge Squires-Lee.
Editor’s Note: This article is the second in a series of judicial interviews led by the Complex Commercial Litigation Section Council. In this series, judges share personal thoughts, not official statements of their respective courts, on topics of interest to litigators around the commonwealth.
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Discussions of generative AI
MARQUETTI: Generative AI has increasingly become, and will remain, a topic of considerable significance in the practice of law. What are your thoughts generally on the use of generative AI in the practice of law?
JUDGE SQUIRES-LEE: Let me first start with a caveat that these ideas and thoughts are my own, and I certainly don’t speak for the Trial Court or Superior Court. In my view, all new technology offers significant benefits to the practice of law as well as serious risks. Although there is a tremendous amount of excitement about generative AI (as opposed to what is built into legal research search engines), it remains relatively new technology. I think in some areas, like in complex business litigation and document review, it will likely offer tremendous benefits and decrease legal costs. You can imagine generative AI being able to do document review very quickly and efficiently. However, in legal research and writing, there’s more potential for risks.
MARQUETTI: In your opinion, should practitioners use it, avoid using it, or use it with caution?
JUDGE SQUIRES-LEE: My only opinion — which again is my own — is that, if AI is used, it definitely should be used with caution in two respects. First, its use must be consistent with the rules of professional conduct. The American Bar Association has recently issued a
formal opinion on this issue. We have no similar guidance in the commonwealth, at least not yet, but nonetheless, lawyers must be fully educated and competent with AI resources, i.e., how to use those resources, how to spot errors or hallucinations, and how to fulfill their obligations when they use generative AI and present it to the court. And the second, a fundamental rule of professional conduct on which the entire judicial system relies is candor to the tribunal — so every presentation must be confirmed factually and legally. In other words, while generative AI can assist in generating content, absolutely everything must be confirmed factually and legally. Those are the cautions I would give lawyers.
MARQUETTI: Have you started seeing the use of generative AI in the law in your courtroom? If so, how?
JUDGE SQUIRES-LEE: The first answer I will give is I do not know what I do not know. I am not able to spot the use of generative AI, but I did recently have a case where one of the parties had a case citation and discussion of the law that I thought had to be AI-generated, and I’ll tell you why — because the legal premise was based on a Supreme Judicial Court case that I know of, but the citation was to a fake U.S. Supreme Court case that does not exist. When you look up the citation, it was not the case they submitted. I dropped a footnote identifying the issue and reminding the lawyers of their obligations. I do not know what happened, but certainly the citation was incorrect. I reminded the lawyers to fact-check and cite-check everything they send to the court.
JUDGE SQUIRES-LEE’S FOOTNOTE: [The Plaintiff] cited to a case captioned Police Com’r of Boston v. Gows, 472 U.S. 14 (1959). Based on my research, however, the Supreme Court case located at 472 U.S. 14 is not Police Com’r v. Gows and is not from 1959. See Williams v. Vermont, 472 U.S. 14 (1985). Because [Plaintiff’s] parenthetical concerned a court’s inherent authority to shift attorney’s fees, I conclude [Plaintiff] meant to cite the 1999 Supreme Judicial Court decision with the same case name. I am utterly flummoxed, however, and unable to discern how or why a citation to a non-existent 1959 U.S. Supreme Court decision was provided with the same case name as an actual Supreme Judicial Court decision from 1999. I am unable to determine, for example, whether the citation error was human error or a “Fictitious Case Citation” resulting from hallucinating artificial intelligence. See Smith v. Farwell, No. 2282CV01197, 2024 WL 4002576, at *4 (Mass.Super. Feb. 15, 2024). I decline without more information to investigate, but take the opportunity to remind counsel to review all case citations submitted to the Court using reputable legal research tools, or old-fashioned books.
MARQUETTI: There have been discussions about judicial use of generative AI when deciding cases. What are your thoughts or reactions on whether and how judges should use generative AI when deciding cases?
JUDGE SQUIRES-LEE: I cannot imagine how the judiciary could wisely use generative AI to help decide cases. It is difficult to see how that could be. Our function is to apply our own reasoning, knowledge and understanding to the legal question before us. It is difficult to know how judges can use generative AI for legal decision-making.
MARQUETTI: What uses of AI can be beneficial for judges to consider?
JUDGE SQUIRES-LEE: As a state court judge, I am always interested to see how other state courts handle issues, not necessarily just legal issues. I could imagine generative AI might be able to pull information to help understand how other jurisdictions handle things like jury nullification or bias in the courtroom.
Reflections on bias in the practice of law and the courtroom
MARQUETTI: Bias in society and particularly in the practice of law (whether explicit or implicit, based on a protected category as defined in state and federal discrimination laws) is still prevalent. Before we begin discussing bias in the courtroom, I would like to ask about your experience practicing law, and whether you have observed any improvement in bias from when you started practicing to immediately before you joined the bench among practitioners in the law.
JUDGE SQUIRES-LEE: I started practicing law almost 30 years ago, and I can tell you that I was told I must wear skirt suits in the court and never wear floral, that I had to lower my voice or vocal register when communicating in court, and that I could have only two children and be a successful litigator in the city of Boston. So there was a period of time when I was a young lawyer when folks were policing the femininity of female lawyers and how to temper it to be better lawyers. Even if this was well-intentioned, it had the effect of limiting women lawyers’ power and voice and authenticity in the courtroom. Those days are gone thankfully. I have three children and was able to have a successful law practice and achieve my highest aspiration of becoming a trial court judge, so those days are long gone.
In fact, I would say to all lawyers that the most important thing about advocacy is authenticity, not appearance. Lawyers must be believable to be successful, and you can only be believable if you are always being your true authentic self.
MARQUETTI: In your practice as a business litigator before you became a judge, did you observe any instances of bias in the courtroom?
JUDGE SQUIRES-LEE: I will give you one example. I was once in a very busy motion session. I was the only woman lawyer waiting to be heard. A male lawyer whose case had been called was sitting at counsel table. He turned, looked at everyone in the courtroom and asked me if I would fill up the water container for him. The male clerk saw this and said, “Attorney Squires-Lee, I will do this,” and took the water pitcher. I was quite certain that this lawyer was looking for a woman to get him water — this is an instance of bias. This was in the Business Litigation Session. I was also frequently mistaken for the court reporter, opposing counsel’s assistant, or a paralegal, and not the lawyer on the case — both in court and in depositions.
MARQUETTI: As a judge now, have you observed any instances of bias in the courtroom? E.g., any instances of bias among or against attorneys? Any instances of bias among or against parties? Any instances of bias against judges?
JUDGE SQUIRES-LEE: I have not really observed bias among or against attorneys, but don’t forget that I don’t enter the courtroom until the session is called, so I would not be surprised if there is bias among or against attorneys before the session begins and I enter the courtroom. I have observed that certain lawyers can appear to exhibit bias when in front of female jurists, and by that I mean interrupting women judges more often, refusing to accept a ruling and arguing beyond a point where I think they would with a male judge. And I know that other of my female colleagues have perceived and observed the same.
I never take that personally, and of course I continue to be impartial and unbiased as between the parties. To address the issue, I will sometimes use humor to remind the lawyers that I understood them the first time. Or I articulate the law and their argument back to them so they can be sure I understand their position.
I would say to the members of the bar that it is never a good idea to appear to be “mansplaining” the law to a female judge. Assume that the jurist to whom you are arguing is capable, competent, and well versed in the legal issue(s) you are presenting. If they are not, most judges will ask for additional education, briefing or information.
MARQUETTI: In what areas of law would you say that you see more instances of bias? E.g., criminal vs. civil? In what stages of the litigation/trial would you say that you see more instances of bias? E.g., jury selection process? Examination of witnesses?
JUDGE SQUIRES-LEE: I honestly believe that the lawyers who appear in the commonwealth do their very best in every kind of case and at every juncture to be unbiased and to check any implicit bias they have. I think the awareness of implicit bias has gone up among the members of the bar, and they understand that all bias in the courtroom is an anathema to the fair administration of justice. I find the lawyers in the commonwealth to be careful, smart, generally wise, thoughtful, and understanding of the issues of potential bias. It is a pleasure to preside over cases in the Superior Court, and I am humbled and honored every day for the privilege of doing this important work.