The Competence Gap

This sin predates AI by decades. Courts were sanctioning attorneys for technological incompetence long before ChatGPT existed. The tools changed. The obligation didn’t. What AI did was industrialize the problem — making it faster, cheaper, more accessible, and therefore more dangerous at scale.

The competence gap is not about malice. It is about a professional using a tool they do not understand well enough to evaluate its output. They cannot tell a good answer from a bad one because they do not understand how the answer was generated. They sign the work anyway. The signature is the problem.

In 2021, a federal judge in Illinois issued a 256-page sanctions order in DR Distributors, LLC v. 21 Century Smoking, Inc. that became required reading on technological competence. The court’s message was direct: “It is no longer amateur hour. It is way too late in the day for lawyers to expect to catch a break on e-discovery compliance because it is technically complex and resource-demanding.” A Delaware court put it even more plainly in 2014: “Professed technological incompetence is not an excuse for discovery misconduct.”

Those cases were about e-discovery software. The principle applies to every tool a professional uses in work they are responsible for. Including this one.

This is not a lawyer problem. The physician who orders a test they cannot interpret and acts on the result without consultation has the same problem. The accountant who runs software they do not understand and files the output has the same problem. The CISO who deploys a security tool they cannot evaluate and certifies compliance has the same problem. The tool changed. The obligation to understand what you are using did not.