The volume of pro se employment lawsuits is surging thanks to generative artificial intelligence (“AI”) tools such as ChatGPT. These tools have been subtly changing how those cases look. Seldom do we now see sloppy handwritten nonsensical filings by unrepresented individuals. Thanks to generative AI tools, pro se plaintiffs are filing more complaints, motions and briefs than ever before – documents that look far more polished on their face than the filings of the past. That surface polish, however, is often misleading: the work product is frequently not as sound, well-supported, or procedurally correct as the AI leads the plaintiff to believe. Even so, employers cannot ignore these filings, and responding to them generates burdensome and costly work that falls squarely on the defense.
According to LexisNexis’s Lex Machina’s 2026 Employment Litigation Report, between 2021 and 2025 the number of unrepresented plaintiffs more than doubled and the percentage of federal employment litigation filed by pro se plaintiffs rose from 9.7 percent to 16.5 percent. For employers, that translates into a fast-growing share of the docket in which the opposing party has no lawyer – but increasingly has AI doing a lawyer’s work.
Why should employers care? Through the use of generative AI tools, pro se plaintiffs can now generate complaints, motions, and opposition briefs that appear sophisticated and well-developed in a matter of minutes. That polish is often only skin deep – a closer read frequently reveals boilerplate arguments, law that does not fit the facts, and citations that do not hold up. But the appearance alone is often enough to force a costly response. Generative AI tools are also being used to estimate the value of claims, often leading plaintiffs to develop unrealistic, and significantly inflated, expectations regarding potential recoveries. That directly undercuts one of the employer’s most useful cost-control tools: the traditional “nuisance value” settlement becomes far harder to reach when a plaintiff believes AI has confirmed a large recovery.
Unlike represented parties who receive guidance regarding the strengths, weaknesses, and practical limitations of their claims, self-represented litigants may rely heavily on AI-generated analyses and overestimate the merits of their cases. Moreover, because these tools allow plaintiffs to create filings quickly and at little to no cost, some may be more willing to prolong litigation, increasing the time and expense employers must devote to defending even meritless claims. The burden, however, is not shared equally. The employer must still retain counsel, respond to every filing, and absorb the full cost of defense – no matter how weak the claim on the other side. That asymmetry, in which one side litigates for free while the other pays market rates to respond, is the core reason AI-assisted pro se litigation is so troublesome for employers.
However, despite the rise of increasingly sophisticated-looking filings, pro se litigants still lose the vast majority of employment cases. According to Lex Machina, in federal employment cases that were resolved between 2023 and 2025, pro se plaintiffs lost by a margin of about 40 to 1. Nearly half of those cases were dismissed on procedural grounds, and only 29% settled, compared with 77% of cases involving represented plaintiffs. The polish, in other words, is largely cosmetic. A filing that reads like a lawyer wrote it, is not the same as a filing that can survive a motion to dismiss. Courts and experienced defense counsel are well equipped to tell the difference.
These statistics offer little comfort to employers facing the prospect of defending AI-assisted pro se litigation. The practical reality is that AI is enabling weak cases to survive longer, forcing employers to expend greater resources before ultimately prevailing. A motion to dismiss must contend with a coherently pleaded complaint, and a motion for summary judgment must answer an opposition brief that at least reads like counsel drafted it – so each dispositive motion takes more time, more briefing, and more expense to win. For employers, the fight is increasingly less about defeating a strong claim than about outlasting a weak one, and paying for the privilege.
Why is it so expensive? Part of the answer is “hallucinations” – the AI-generated citations to cases that simply do not exist. When a pro se plaintiff files a brief built on fictitious authority, the employer’s lawyers still have to research each phantom case, confirm it is not real, and explain as much to the court, running up fees to disprove arguments that should never have been made. Courts have begun to impose consequences for citing non-existent cases and for misrepresenting the holdings of legitimate ones. In one notable case, a District Court in California ordered a pro se plaintiff to pay $66,000 in attorney’s fees to compensate for the time spent looking up these fictitious case citations and responding to “bad faith” litigation, according to the Judge, which included filing duplicative motions. Sanctions like these are a welcome deterrent, but they arrive only after the employer has already footed the bill.
If the plaintiff can use AI, why can’t we? It is a fair question, and one every employer watching these costs mount is entitled to ask. Faced with these costs, a cost-conscious employer might be tempted to fight fire with fire – to skip counsel and let AI defend the case. That option is far more limited for employers than for the pro se plaintiffs on the other side, and pursuing it usually makes matters worse.
Start with the threshold problem: most employers are corporations, limited liability companies, or other business entities, and a business entity cannot represent itself in court. It has been the law for the better part of two centuries that a corporation may appear in the federal courts only through licensed counsel, and 28 U.S.C. § 1654 does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney.
Even the rare individual employer or sole proprietor who could appear pro se gains little by trading counsel for a chatbot. The hallucination and sanctions risks this article describes on the plaintiff’s side apply with equal force to a defendant. A fabricated citation or a misstated holding in the employer’s own brief invites the same fee awards and bad-faith findings that courts are increasingly willing to impose – except now the employer, not the plaintiff, is writing the check. And these risks are not hypothetical. In the widely reported case of Mata v. Avianca, Inc., a federal court in New York imposed sanctions on a law firm and two licensed attorneys who submitted a brief containing judicial decisions that ChatGPT had simply invented. If experienced, licensed lawyers have been sanctioned for trusting AI without verifying its output, an employer attempting to defend itself with the same tools – and without a lawyer’s training to catch the errors – is exposed to far greater danger, not less.
More fundamentally, defending a case takes judgment and AI just does not have it. It is not just generating documents. It requires preserving affirmative defenses, meeting hard procedural deadlines, managing discovery and privilege, building the factual record through depositions, and knowing which dispositive motions to bring and when. Though generative AI can produce text, it cannot exercise judgment, appear at a hearing, examine a witness, or answer to the court for what it files. Risks are real for employers who want to use AI including stricken filings, waived defenses, sanctions and adverse judgment. The sound response to AI-assisted pro se litigation is not to abandon counsel but to hire an experienced one who can use these same tools responsibly while protecting the company.
Why retaining experienced employment counsel is the answer. If AI cannot safely defend the company, what can? The most effective response to AI-assisted pro se litigation is the oldest one: experienced employment counsel who represent employers day in and day out. Precisely because so many pro se filings are more polished in appearance than in substance, seasoned counsel add value at every stage. They can spot the hallucinated citations and misstated holdings that a busy court might otherwise overlook, and bring them to the court’s attention. They can identify the procedural and pleading defects – missed deadlines, unexhausted administrative remedies, claims that fail as a matter of law – that turn an intimidating-looking complaint into an early dismissal. They can measure a plaintiff’s AI-inflated settlement expectations against what the law and the facts actually support, keeping the company’s resolution strategy grounded. And they can press for fee-shifting and sanctions when a litigant crosses the line into bad-faith or fabricated filings, shifting some of the cost back to the party who created it. Just as important, experienced counsel can use these same AI tools responsibly – with the professional judgment, verification, and accountability that the technology itself cannot supply – so the employer captures the efficiencies without inheriting the risks. For an employer, the answer to “why can’t we just use AI?” is not to go it alone with a chatbot, but to retain counsel who knows how to turn the other side’s overreliance on AI into a defense advantage.
Generative AI has not rewritten employment law, it has rewritten the economics of defending against it. Generative AI has not changed the legal standards governing employment claims, nor has it made meritless cases more likely to succeed. What it has changed is what those cases cost the employer to defend. The rise of AI-assisted pro se litigation is not a story about stronger claims – it is a story about more expensive ones. As these tools continue to evolve, employers and their counsel should expect more sophisticated filings, longer litigation, and higher defense costs, even where the underlying claims lack merit. Employers that plan for that reality now – by budgeting for longer pro se matters, building the record that supports early dispositive motions, and pressing for fee-shifting and sanctions where the conduct warrants it – will be far better positioned to manage the risks and costs of this new era of employment litigation.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over seventy years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
