September 30, 2025
By Emily Poler
Both kinds of people — lawyers and non-lawyers — often tell me they could never be a litigator. Why? Because they hate confrontation. Well, here’s a secret for you: Notwithstanding my 20-plus years litigating difficult disputes, I don’t enjoy it much myself. But of course, it comes with the territory. So how do I deal with confrontation? And, also, why be a litigator if I’m not so keen on the conflict part of my job?
First, let me make one thing clear: Not every relationship with opposing counsel is contentious. There are many cases when I have a good working relationship with opposing counsel, at least most (or some) of the time. In such cases, there will certainly be moments where opposing counsel and I push and shove or throw an elbow. However, there is usually a level of mutual respect that keeps things relatively cool. Plus, we usually share the understanding that our respective clients naturally have opposing views and, despite that, it’s our job to move the case toward a resolution.
Unfortunately, however, those occasions when I have an amicable working relationship with opposing counsel make up the minority. Matters are usually more antagonistic, and while I certainly try to be respectful of my adversaries in those cases, I’m only human — and if someone tries to dunk on me, I will give as good as I get.
However, that doesn’t mean that I hit back the same as how they come at me. Or, put bluntly, when an opponent acts unprofessionally, shouting and threatening, I don’t play like that.
One of the best ways I’ve found to deal with cranky opponents is to be true to who I am. I realize the word “authenticity” has been overused to the point of meaninglessness, but it’s pretty apt here. I am not a screamer. It’s just not how I communicate. There are a couple of reasons for this, and maybe an exploration of why could be a post for another time, but basically, any attorney who aggressively rants and raves makes me embarrassed for our profession. And I am not going to pile on that kind of undignified behavior.
As a result, I deal with unpleasant adversaries on my terms. If someone screams at me, I will respond calmly and in a measured way. If they keep banging on, and particularly if they insult me or my client, I will hang up the phone or walk away from the meeting.
Similarly, as will surprise nobody alive in the year 2025, some people are more comfortable bending facts or ignoring them all together. Again, I am not one of those. Instead, being a great big nerd, my approach is to show up to every interaction, negotiation and trial 100 percent more prepared than my adversary, in touch with reality, equipped with foreknowledge of potential problems and armed with an arsenal of viable solutions.
While an obnoxious adversary can drive anyone to distraction, throughout the battle I really, really, really try to keep my eyes on the ultimate prize my client is after. And that is what I view as being at the heart of my role in every case and, to answer the question I raised in the first paragraph, the heart of why I’m a litigator. I’m here to help people, doing a job, representing my clients, and bringing my experience and expertise to achieve their desired goal. Pettiness, anger, and loud, loathsome behavior won’t get us to the results we want.
And, to quote Mr. Dylan, it ain’t me, babe.
September 23, 2025
By Laura Trachtman
In my previous post about President Trump’s Executive Order, we discussed his blatant hypocrisy and pandering to bigots in determining that sex is a binary construct. We’re going to continue our examination of the second part of this policy, and how it is just plain wrong.
Now, in full disclosure, this is going to be a post addressing mostly science and history/sociology, but the idiocy of it all continues to vex me, so bear with me. Or, tune in soon for part three, where I return to the law.
The Executive Order reads:
Sec. 2. Policy and Definitions. It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable and are grounded in fundamental and incontrovertible reality. Under my direction, the Executive Branch will enforce all sex-protective laws to promote this reality, and the following definitions shall govern all Executive interpretation of and application of Federal law and administration policy:
(a) “Sex” shall refer to an individual’s immutable biological classification as either male or female. “Sex” is not a synonym for and does not include the concept of “gender identity.”
(b) “Women” or “woman” and “girls” or “girl” shall mean adult and juvenile human females, respectively.
(c) “Men” or “man” and “boys” or “boy” shall mean adult and juvenile human males, respectively.
(d) “Female” means a person belonging, at conception, to the sex that produces the large reproductive cell.
(e) “Male” means a person belonging, at conception, to the sex that produces the small reproductive cell.
(f) “Gender ideology” replaces the biological category of sex with an ever-shifting concept of self-assessed gender identity, permitting the false claim that males can identify as and thus become women and vice versa, and requiring all institutions of society to regard this false claim as true. Gender ideology includes the idea that there is a vast spectrum of genders that are disconnected from one’s sex. Gender ideology is internally inconsistent, in that it diminishes sex as an identifiable or useful category but nevertheless maintains that it is possible for a person to be born in the wrong sexed body.
(g) “Gender identity” reflects a fully internal and subjective sense of self, disconnected from biological reality and sex and existing on an infinite continuum, that does not provide a meaningful basis for identification and cannot be recognized as a replacement for sex.
You’ll note that I have highlighted Sections 2d and 2e above. Why? Because even as an indifferent science student, I remember that at conception, every single fetus is female. This is why men have nipples, because fetuses develop nipples before the biological sex is determined by chromosomes.
Knowing that simply because I say something doesn’t make it true, this book, Understanding the Biology of Sex and Gender Differences; Wizemann TM, Pardue ML, editors. Washington (DC): National Academies Press (US); 2001, confirms my recollection (emphasis supplied):
All human individuals—whether they have an XX, an XY, or an atypical sex chromosome combination—begin development from the same starting point. During early development the gonads of the fetus remain undifferentiated; that is, all fetal genitalia are the same and are phenotypically female. After approximately 6 to 7 weeks of gestation, however, the expression of a gene on the Y chromosome induces changes that result in the development of the testes. Thus, this gene is singularly important in inducing testis development. The production of testosterone at about 9 weeks of gestation results in the development of the reproductive tract and the masculinization (the normal development of male sex characteristics) of the brain and genitalia. In contrast to the role of the fetal testis in differentiation of a male genital tract and external genitalia in utero, fetal ovarian secretions are not required for female sex differentiation. As these details point out, the basic differences between the sexes begin in the womb, and this chapter examines how sex differences develop and change across the lifetime. The committee examined both normal and abnormal routes of development that lead individuals to become males and females and the changes during childhood, reproductive adulthood, and the later stages of life.
Obviously, this disproves President Trump’s assertion that gender is immutable, as all festus are female at conception, and only later do they transform into males (or others!).
President Trump also asserted in Section 2a that gender is a binary. Please note that aside from confirming that all humans are female at conception, this article also acknowledges that there exist atypical sex chromosome combinations, thus defying the assertion that gender is a binary.
We’re going to move on to gender ideology and gender identity. Not only are there myriad examples of trans people in today’s society, there have been trans individuals since society began. Before you scoff at the ignorant pre-historical people and say that they don’t count, Generals Casimir Pulaski (1745-1779), who saved George Washington’s life at the Battle of Brandywine in 1777 and who died fighting for the Revolution, and James Barry (1789-1865), who served across the British Empire and fought to improve living conditions for the soldiers who served under him, were both trans men. Many Americans know about two-spirit American Indians, and Zapotecan muxes, but there are also other people as well across the globe. To insist that, because our American culture does not celebrate a third gender, there is no third gender, is just ignorant.
If you take away nothing else from this post, please read this: it’s no one’s business, especially our government, what’s in anyone else’s pants. If you are a believer in any of the Abrahamic religions, please review Genesis 1:27. If you find yourself wondering whether someone you interact with is male or female or trans or something else, you can politely ask them what their pronouns are, or you can remind yourself that it is truly none of your business.
September 16, 2025
By Emily Poler
Will they never learn? Yet another chapter has opened in the ongoing follies of lawyers using AI. This time, it’s in a putative class action against OnlyFans’ parent company — Fenix International Ltd. — for, among other things, civil violations of the Racketeering and Corrupt Organizations (RICO) Act. Putting the merits of Plaintiffs’ claims aside, a very unwise and/or unfortunate contract attorney working for one of the law firms representing Plaintiffs used ChatGPT to generate four briefs filed in federal court in California. It turns out that those briefs contained dozens of AI-generated hallucinations, including 11 made-up citations (out of a total of 18) — fictional cases, rulings and precedents that are embarrassing the guilty attorneys and threatening to derail a potentially legitimate lawsuit.
Oops.
In case you don’t know, OnlyFans is an Internet platform in which individual creators get paid via subscriptions and pay-per-view for the video content they generate (yes, there’s a lot of porn on it). The suit was filed on behalf of OnlyFans users who allege the site employs professional “chatters” (including AI) to impersonate content creators in their interactions with users, without disclosing that users aren’t messaging with the actual personalities they pay to talk with (let’s not get into how this is a RICO violation).
Just by way of background, whenever I submit something to a court, either I or our paralegal goes through every citation, whether it’s to a case or to an underlying document, and makes sure (1) it says what we say it says, and (2) we have the citation and the name of the case right. Obviously, the point of this exercise is to avoid making misrepresentations and damaging our client’s case, while also embarrassing ourselves in front of a judge. Both are things that I really, really try to avoid. Also, one of my jobs as an attorney is to try to avoid calling attention to myself and, instead, keep the focus on the merits of my client’s arguments (or the lack of merits of the other side’s arguments).
Yet one of the firms representing Plaintiffs in the OnlyFans suit, Hagens Berman Sobol Shapiro LLP, seems to have not taken these basic steps. That firm hired a contract attorney as co-counsel. Apparently, she was dealing with a family crisis at the time and turned to AI as a shortcut in preparing the briefs. AI — predictably — generated all the errors and invented citations. As if that’s not bad enough, after Skadden Arps Slate Meagher & Flom LLP, the lawyers defending Fenix, discovered the issue and brought it to the court’s attention, Hagens Berman tried to explain it away rather than simply admitting their screwup and begging for forgiveness. As a result, the firm now finds itself in a fight to have the judge let them redo the AI-generated briefs, asserting the corrected briefs are essential to their case. Fenix, meanwhile, is seeking to dismiss, arguing there is no way to “correct” fictional citations, adding that Plaintiffs blew their chance to fight the dismissal by using the AI hallucinations in the first place.
A couple of issues worth highlighting. The attorney who used AI may have been under stress because of her personal problems, but that’s no excuse for her actions. It’s also a reminder that attorneys should never take on more work than they can handle, as it is a grave disservice to their clients and, ultimately, to their own reputation — and potentially their career.
Also, while this attorney was hired as an independent contractor by Hagens Berman, the actual materials submitted to the Court were signed by one of the firm’s attorneys without first checking her work. This is an absolute no-no. The fact that the contract attorney had reportedly done good work in the past doesn’t make it ok.
What is the proper punishment here? A hearing is set for September 25 to determine whether the court should issue sanctions. Regardless of any discipline meted out to the law firm, the real losers would ultimately be the Plaintiffs if their case is damaged or dismissed because of their attorneys’ negligence.
Stepping back from this specific case, is it time for broader standards on the use and disclosure of AI in legal work and court papers? For me, the larger question is, are specific rules necessary, or should the failure to catch wrong or false materials created by AI fall within existing codes of conduct mandating that attorneys provide the level of “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” of clients? In the OnlyFans case, the attorneys clearly did not not meet that standard, and while the issue of AI usage is novel, deception of courts is not.
While all this is being hashed out, some courts have already begun to require attorneys to disclose when they use AI. And the decision in this case, which is being watched by many in the legal community, may well set a precedent for how courts deal with AI hallucinations in the future.
September 10, 2025
By Laura Trachtman
A former partner at Katten Muchin Rosenman, LLP is suing his prior firm and two of its partners, Noah Heller and Michael Verde, for $67 million dollars, alleging, among other things, age discrimination in firing. This case is just the kind of borderline absurd scandalous legal drama that gives me life, and in three specific areas: discrimination, representation, and arbitration.
First, age discrimination is, IMO, one of the hardest discrimination-based allegations to demonstrate. Courts have held that, unlike other types of discrimination, one of the best ways to demonstrate age-based discrimination is by recounting comments rooted in age-related bigotry. Now, if you’ve ever handled a race-or gender-based discrimination case, you’ll know that most people aren’t stupid enough to make statements about a person’s gender or race. “Well, we’re going to give this position to a white person because we, as white people, feel more comfortable among other white people” or “You, being female, simply aren’t as emotionally stable as a man” are comments that are almost never heard these days, although the sentiments behind them certainly continue to thrive. However, this is not the case in age-based discrimination, as alleged in the 129-page Addendum to the Complaint. “Heller and Verde told me in an in-person meeting to tell me to resign from the firm, the firm and its malpractice insurer concluded that it presented too great a malpractice risk to the firm to allow lawyers close to retirement to continue to handle client relationships,” says Stewart B. Herman, Esq., the plaintiff, who is representing himself. The Addendum also alleged that Katten’s CEO, Heller, previously bragged to Herman that he, the CEO, secured that position by leveraging his youth against those other, older candidates, who are likely to retire more quickly and thus be less invested in the Firm.
This moves us quickly to our next interesting point: Herman is representing himself. This also almost never happens amongst BigLaw attorneys — or attorneys, full stop. Plenty of plaintiffs represent themselves pro se, but they tend to be, in my experience, cuckoo bananas. In fairness, plenty of lawyers are also cuckoo bananas, but that’s another post for another day. It does remind me of a quote from The Addams Family movie, spoken by Gomez Addams, brilliantly portrayed by the late actor Raul Julia: “They say that a man who represents himself has a fool for a client. Well, with God as my witness, I am that fool!” (I’m not calling Herman a fool. I’m just repeating what Gomez said.)
Most recently, in response to a motion filed by Katten to compel arbitration, the Magistrate Judge addressed the parties’ arbitration agreement. While the Court granted the defendant’s motion to stay the matter pending arbitration, in a fascinating twist, the Court admitted that it could not force the parties to go to arbitration: “Although the Court has the power, and obligation, to stay the instant action, it cannot affirmatively order the parties to arbitrate.” This is because the arbitration agreement between Katten and Herman says the arbitration must occur in Chicago, but the Federal Arbitration Act does not allow a court to order parties to arbitration outside of the district in which the court sits. In this instance, that’s the Southern District of New York, which obviously does not include Chicago.
So the parties have several options: agree to arbitrate in New York (which Herman has already declined to agree to), agree to arbitrate in Chicago (ditto), or sit and wait until someone changes their mind or Congress changes the law. I anticipate that Herman will have some soul-searching to do, trapped between the devil and the deep blue sea as he is.
September 2, 2025
By Emily Poler
I’ve written a lot on this blog about the legal battles between copyright owners and the AI platforms that have used and continue to use copyrighted works to train their LLMs. However, I haven’t been terribly explicit about my views on what’s right and what’s wrong. Instead, I’ve focused on the parties’ legal maneuvers and what I see as the strengths and weaknesses in the various arguments and judges’ decisions, while also suggesting that existing case law can be extended to cover new technologies. This has been an intentional choice because I’m a lawyer and a litigator, not a policy maker. Therefore, I might not be the best person to opine on what’s “right” and what’s “wrong.”
I do, however, wonder whether it is time to recalibrate our legal approach to some copyright issues. After all, U.S. copyright law traces its origins back to English common and statutory law from the 18th century, and it’s fair to say that things have changed A LOT since the days when George III wore the crown.
So, given that everyone can use some light reading after the holiday weekend, I thought that with summer in the rearview (sigh), I’d wade into this thicket with a few thoughts and questions.
In the main, I find the idea that companies like Anthropic, Google, Meta and OpenAI can mine a vast amount of content without compensating creators to be really problematic. The U.S. Constitution’s Copyright Clause (“The Congress shall have Power . . .To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”) is intended to incentivize creation of new works. The idea here is that society as a whole benefits from incentivising individual creators while fair use provides a mechanism to allow others to create new works using existing works and thus further benefit society.
Fair use, which is what AI companies rely on in their arguments to allow them to mine copyrighted content, is disturbing to me in this context because it’s hard to believe in 2025 that any tech company is acting in the public interest or that its innovations will improve society at large. And so, my question here is, is any court capable of determining the potential societal benefit (or lack thereof) from a given innovation? It seems super hard because (1) long term benefits and downsides are difficult or impossible to predict, and (2) any one technology can have results both bad (Internet > social media) and good (Internet > not having to look at a paper map while driving).
I also have questions about how to properly classify what AI companies derive from copyrighted works. The companies argue that their training models are taking only non-expressive information — how words and other information are arranged — from human-created materials, and not expressive content — the meaning of the words and information. In other words, they claim an LLM scanning a scholarly work on who authored Shakespeare’s plays is only using the words and sentences to learn how humans think and communicate, and not actually paying attention to (and potentially ripping off) the author’s arguments that Christopher Marlowe is the true creator of Romeo and Juliet.
But can we really make that distinction? The way I arrange words in this blog post is, in fact, central to the idea that I’m expressing. By way of comparison, the argument that how human authors arrange words is “non-expressive” might be akin to saying that Death of a Salesman read by a monotone, computer-generated voice is the same as performed by an actor with years of training. I, for one, have a hard time buying that.
Furthermore, the role of corporations has changed dramatically since Parliament passed the first copyright statute — the Statute of Anne — in 1710. This makes me wonder if it’s time to consider whether copyright law should distinguish between incentives for companies to create works, and incentives for individuals to create.
Obviously, these are all big questions that in one way or another are currently being touched upon in the courts. But what all my questions come down to is, are the courts really who should be answering them? I worry that without a broader, societal examination of how copyright law should be applied to AI, as opposed to narrow courtroom applications of centuries old laws and principles to previously unimaginable technologies, we will get results that only benefit large companies while hurting individual creators and, ultimately, society as a whole — which would be the exact opposite of what copyright law was created to achieve.
