Order in the Court

Host Paul W. Grimm continues his conversation with Professor Maura R. Grossman on the legal system's growing challenges with generative AI and deepfakes. They explore how AI-generated images, video, and audio differ from traditional fakes—and why they present unique evidentiary challenges and ethical problems for lawyers and judges. They also discuss the legal implications of the “liar's dividend,” the psychological impact of AI-generated evidence on juries, and potential updates to the Federal Rules of Evidence. In the absence of new rules dealing with AI evidence, they explain how early case management, protective orders, and Rules 403 and 901 can address a few of these challenges.ADDITIONAL RESOURCESGrossman, Grimm & Coglianese "AI in the Courts: How Worried Should We Be?" (Judicature)This Judicature article offers a discussion of the pros and cons of AI in the legal profession following the rise of ChatGPT and other large language models (LLMs).Federal Rules of Evidence – In particular, this episode focuses on:Rule 104(a) & (b): Preliminary vs. conditional relevanceRule 403: Exclusion of prejudicial evidenceRule 901: Authentication of evidenceRule 702: Expert testimony ABOUT THE HOSTJudge Paul W. Grimm (ret.) is the David F. Levi Professor of the Practice of Law and Director of the Bolch Judicial Institute at Duke Law School. From December 2012 until his retirement in December 2022, he served as a district judge of the United States District Court for the District of Maryland, with chambers in Greenbelt, Maryland. Click here to read his full bio.

On this episode, host Paul W. Grimm speaks with Professor Maura R. Grossman about the fundamentals of artificial intelligence and its growing influence on the legal system. They explore what AI is (and isn't), how machine learning and natural language processing work, and the differences between traditional automation and modern generative AI. In layman's terms, they discuss other key concepts, such as supervised and unsupervised learning, reinforcement training, and deepfakes, and other advances that have accelerated AI's development. Finally, they address a few potential risks of generative AI, including hallucinations, bias, and misuse in court, which sets the stage for a deeper conversation about legal implications on the next episode, "To Trust or Not to Trust: AI in Legal Practice." ABOUT THE HOSTJudge Paul W. Grimm (ret.) is the David F. Levi Professor of the Practice of Law and Director of the Bolch Judicial Institute at Duke Law School. From December 2012 until his retirement in December 2022, he served as a district judge of the United States District Court for the District of Maryland, with chambers in Greenbelt, Maryland. Click here to read his full bio.

On this episode, host Paul W. Grimm speaks with retired U.S. Magistrate Judge Beth P. Gesner about settlement of civil cases in federal court, and in particular, the magistrate judge's role in facilitating settlement discussions. They also discuss several strategies judges can utilize to more effectively manage settlement of their cases, such as maintaining a calendar, holding everyone accountable to deadlines, memorializing agreements that are made between parties, and ensuring that key decision makers are always part of settlement discussions.ABOUT THE HOST Judge Paul W. Grimm (ret.) is the David F. Levi Professor of the Practice of Law and Director of the Bolch Judicial Institute at Duke Law School. From December 2012 until his retirement in December 2022, he served as a district judge of the United States District Court for the District of Maryland, with chambers in Greenbelt, Maryland. Click here to read his full bio.

ADDITIONAL RESOURCES:Information about the U.S. Courts Rulemaking Process2015 Amendments to the Federal Rules of Civil ProcedureJudicature article on the 2015 Discovery Amendments (PDF) ABOUT THE HOSTJudge Paul W. Grimm (ret.) is the David F. Levi Professor of the Practice of Law and Director of the Bolch Judicial Institute at Duke Law School. From December 2012 until his retirement in December 2022, he served as a district judge of the United States District Court for the District of Maryland, with chambers in Greenbelt, Maryland. Click here to read his full bio.

ADDITIONAL RESOURCES:Toward Fairer, Quicker, Cheaper Litigation: A Unified Theory of Civil Case Management (Judicature)Civil Justice Initiative Implementation Tools (National Center for State Courts)Why Don't Judges Case Manage? (University of Miami Law Review) ABOUT THE HOSTJudge Paul W. Grimm (ret.) is the David F. Levi Professor of the Practice of Law and Director of the Bolch Judicial Institute at Duke Law School. From December 2012 until his retirement in December 2022, he served as a district judge of the United States District Court for the District of Maryland, with chambers in Greenbelt, Maryland. Click here to read his full bio.

BACKGROUNDRule 53 of the Federal Rules of Civil Procedure authorizes judges to appoint a “master” to assist the court when exceptional conditions prevent the assigned judge from handling all matters associated with a case. Commonly referred to as “special masters,” these judicial adjuncts address pretrial and posttrial matters that “cannot be effectively and timely addressed by an available district judge or magistrate judge.” Frequently they oversee the discovery process and resolve disputes when they arise, supervise settlement discussions, perform accountings, or compute damages. The order appointing the master must direct them to proceed with all reasonable diligence, and clearly state the scope of their duties, including any limits to it. ABOUT THE HOSTJudge Paul W. Grimm (ret.) is the David F. Levi Professor of the Practice of Law and Director of the Bolch Judicial Institute at Duke Law School. From December 2012 until his retirement in December 2022, he served as a district judge of the United States District Court for the District of Maryland, with chambers in Greenbelt, Maryland. Click here to read his full bio.

Additional links: Click here to read George Hazel's full profile and bio on Gibson Dunn's websiteListen and subscribe to George Hazel's podcast “A View from the Bench” on Apple Podcasts. ABOUT THE HOSTJudge Paul W. Grimm (ret.) is the David F. Levi Professor of the Practice of Law and Director of the Bolch Judicial Institute at Duke Law School. From December 2012 until his retirement in December 2022, he served as a district judge of the United States District Court for the District of Maryland, with chambers in Greenbelt, Maryland. Click here to read his full bio.

For more information about these and other pending rules and amendments, visit this page on the U.S. Courts website. ABOUT THE HOSTJudge Paul W. Grimm (ret.) is the David F. Levi Professor of the Practice of Law and Director of the Bolch Judicial Institute at Duke Law School. From December 2012 until his retirement in December 2022, he served as a district judge of the United States District Court for the District of Maryland, with chambers in Greenbelt, Maryland. Click here to read his full bio.

This episode was recorded before the Dec. 1, 2023, deadline for Congress to act before the amendments would go into effect. Congress did not act to modify or prevent the rules from going into effect, so they have all since entered the Federal Rules of Evidence.Some listeners may find it helpful to review the original rules along with changes. This blog by Melinda Burton, attorney at the firm Faruki PLLC, highlights the revisions that went into effect.In 2020, Professor Capra published the article "Evidentiary Irony and the Incomplete Rule of Completeness: A Proposal to Amend Federal Rule of Evidence 106"  co-authored with Professor Liesa L. Richter in the Minnesota Law Review. In 2021, Professor Capra and Professor Richter published the article "The" Rule: Modernizing the Potent, But Overlooked, Rule of Witness Sequestration in the William & Mary Law Review. ABOUT THE HOSTJudge Paul W. Grimm (ret.) is the David F. Levi Professor of the Practice of Law and Director of the Bolch Judicial Institute at Duke Law School. From December 2012 until his retirement in December 2022, he served as a district judge of the United States District Court for the District of Maryland, with chambers in Greenbelt, Maryland. Click here to read his full bio.

ADDITIONAL LINKSMore information about the federal rulemaking process can be found on the uscourts.gov website.The next meeting of the Civil Rules Committee is scheduled to occur in Denver, Colorado in April 2024. The current calendar of rules committee meetings can be found here. Transcripts and recordings of past meetings are archived here.Click here to read Judge Robin L. Rosenberg's bio on the Federal Judicial Center's website. ABOUT THE HOSTJudge Paul W. Grimm (ret.) is the David F. Levi Professor of the Practice of Law and Director of the Bolch Judicial Institute at Duke Law School. From December 2012 until his retirement in December 2022, he served as a district judge of the United States District Court for the District of Maryland, with chambers in Greenbelt, Maryland. Click here to read his full bio.