10th Circuit judges speak about AI, mechanics of oral argument

Three members of the Denver-based federal appeals court spoke to lawyers on Monday about key considerations when arguing their cases, as well as the potential role artificial intelligence will play in judging.

“Broadly speaking, we don’t have really a choice at this point as to whether or not technology’s gonna evolve towards greater use of AI. It’s happening,” said Judge Richard E.N. Federico of the U.S. Court of Appeals for the 10th Circuit. He added that he would be “very cautious” about turning over any legal work product to a generative AI tool like ChatGPT.

“I’ve now been on the court for a year and change and I think the biggest takeaway I’ve had about the art of judging,” continued Federico, “is ultimately we are guided by the law and the facts and all those things — but it does come down to human judgment. That’s why we are in these positions. If the law dictated an outcome in every case and it was so clear, there would be no reason for parties to argue. That’s just not reality.”

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Richard E.N. Federico

In this screen grab from C-SPAN, Richard E.N. Federico testifies at his confirmation hearing to the U.S. Court of Appeals for the 10th Circuit on Sept. 6, 2023.

Richard E.N. Federico

In this screen grab from C-SPAN, Richard E.N. Federico testifies at his confirmation hearing to the U.S. Court of Appeals for the 10th Circuit on Sept. 6, 2023.



The 10th Circuit hears appeals in federal cases arising from Colorado and five neighboring states. The virtual discussion, sponsored by the Oklahoma City Chapter of the Federal Bar Association, featured Federico, an appointee of President Joe Biden from Kansas; Judge Carolyn B. McHugh, a Barack Obama appointee from Utah; and Judge Timothy M. Tymkovich, a George W. Bush appointee from Colorado.

The judges’ comments about artificial intelligence came one week after Colorado’s Court of Appeals warned for the first time that litigants and lawyers could face sanctions if they submit filings that contain false, AI-generated citations. At least one federal trial judge within the circuit has also preemptively instituted protocols for lawyers’ use of AI in cases.

“If you’re standing up to argue, you need to know everything that’s in your brief, including all the cases you cited and whether they actually exist,” said McHugh. She added that she did not believe she would ever use generative artificial intelligence for judging.

“If I were gonna use AI, I’d have to have my grandchildren come in and show me how to do it,” McHugh said.

Judge Carolyn McHugh

Judge Carolyn B. McHugh during her 2013 confirmation hearing to the U.S. Court of Appeals for the 10th Circuit

Judge Carolyn McHugh

Judge Carolyn B. McHugh during her 2013 confirmation hearing to the U.S. Court of Appeals for the 10th Circuit



Tymkovich predicted AI might be competently used as a “pattern recognition device” for cases.

“I had a contract interpretation case recently. And as a study, I asked my clerks to put in a prompt,” he said. “Basically, what does this particular term mean based on whatever the search engine would pull up. Predictably, it picked up a lot of information we had already found.”

Tymkovich’s trial resembled a similar effort by a judge on the Atlanta-based 11th Circuit, who asked ChatGPT to define the terms “physically restrained” and “landscaping” in a pair of cases for which the meanings were crucial.

“Maybe there are some areas where AI can confirm an interpretation or discourage a particular application,” Tymkovich said. But the danger is that people will “rely on a machine that doesn’t have the same kind of ethical obligations that we do to our clients and to the lawyers who practice before us.”

Elections Artificial Intelligence Michigan

FILE - The OpenAI logo is seen on a mobile phone in front of a computer screen which displays output from ChatGPT, March 21, 2023, in Boston. Campaigns will be required to clearly state that political advertisements airing in Michigan were created with the use of artificial intelligence under legislation expected to be signed in the coming days by the Democratic Gov. Gretchen Whitmer. The use of AI-generated deepfakes within 90 days of an election will be prohibited without a disclosure identifying the media as manipulated. (AP Photo/Michael Dwyer, File)

Luige Del Puerto luige.delpuerto@coloradopolitics.com

Elections Artificial Intelligence Michigan

FILE – The OpenAI logo is seen on a mobile phone in front of a computer screen which displays output from ChatGPT, March 21, 2023, in Boston. Campaigns will be required to clearly state that political advertisements airing in Michigan were created with the use of artificial intelligence under legislation expected to be signed in the coming days by the Democratic Gov. Gretchen Whitmer. The use of AI-generated deepfakes within 90 days of an election will be prohibited without a disclosure identifying the media as manipulated. (AP Photo/Michael Dwyer, File)






Among other topics, the 10th Circuit judges spoke to the mechanics of oral argument from both sides of the bench. Tymkovich explained the court has a judge screen cases to decide whether the facts or the law involved rise to the level of needing in-person arguments before a three-judge panel.

“You should know there was a judge who thought this would be a worthy candidate. That oral argument will be helpful to the resolution of the dispute by having you come to Denver and explaining it to us,” he said.

Federico, the newest member of the court who was formerly a public defender, believed oral arguments make “some difference” in 100% of cases, even if they do not change his vote. Tymkovich clarified that the judges do not confer about a case prior to the argument, and a lawyer’s presentation could affect the scope of the ruling, if not the outcome.

“Even if I say you’re gonna win a case, you might be able to win it big or win it small — and same thing with losing a case — because you’ve persuaded the panel to take a narrower approach. That can be advantageous,” he said.

HEADSHOT Tymkovich 2

Judge Timothy M. Tymkovich of the U.S. Court of Appeals for the 10th Circuit.

courtesy 10th Circuit Court of Appeals

HEADSHOT Tymkovich 2

Judge Timothy M. Tymkovich of the U.S. Court of Appeals for the 10th Circuit.






McHugh cautioned attorneys not to try to guess how an appellate panel will rule based on the questions during arguments.

“My practice is to try to hit one side with the weakest points of their argument, at least as I perceive them. Then turn to the other side — and they’re sitting there thinking, ‘Oh yeah, Judge McHugh’s with me’ — and then immediately I’m gonna start hitting them with what I think are the weakest points,” she said. “Because that’s what I’m trying to explore. Not the issues where it’s all very clear.”

McHugh added that lawyers should be wary of using hypothetical examples, as the illustrations might be turned against them.

“I will ask where the logical end is to a premise, a legal premise. We need to know how far this is gonna go,” she said. “But I’m not likely to come up with a six-paragraph hypothetical to throw at a lawyer.”

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