AI Declaration Needed for Expert Witness Reports

Expert witnesses preparing court documents may soon be required to make a specific declaration if artificial intelligence has generated or influenced the substantive content of their reports. This proposed change stems from a recent report by the Civil Justice Council (CJC) aimed at ensuring transparency and accountability in the use of AI within the legal system.

Addressing Risks of AI in Legal Evidence

The CJC's report, "Use of AI for Preparing Court Documents," highlights the growing use of AI tools by experts. While acknowledging AI's potential to improve efficiency in processing information and communicating complex material, the council also points to significant risks. Generative AI systems are known to produce false information with confidence and can invent sources, leading to potentially incorrect analyses. Examples from other jurisdictions have already shown experts including fabricated AI-generated content in their reports.

Mrs Justice Joanna Smith, who co-chaired the working group that produced the report, stated that the fundamental duties of expert witnesses, independence, objectivity, transparency, and professional competence, remain unchanged by AI. The question is not whether AI should be used, but how it can be employed responsibly and consistently with court obligations.

New Declaration and Revised Guidance

The overwhelming response from consultations indicated a need for transparency regarding AI use. Consequently, the CJC recommends a rule change to introduce an AI use-specific declaration. This declaration would be mandatory only when AI has directly shaped the core content of an expert's report, including its methodology or substantive analysis. Administrative uses of AI, which are already embedded in many tools, would not require this declaration. The proposed declaration aims to provide sufficient information for effective scrutiny of the expert evidence, potentially including disclosure of the methodology and, in exceptional cases, the specific AI tool used.

In parallel, the CJC's Guidance for the Instruction of Experts in Civil Claims is set to be revised. The updated guidance will incorporate best practices for AI use by experts, encouraging them to consider a three-part test. This test involves assessing whether AI influenced the substance of their evidence, determining what information is needed for effective scrutiny by opposing parties and the court, and deciding if disclosure of the AI tool is necessary.

AI can still safely assist with administrative tasks, information management, and drafting support without triggering the need for a declaration. Many experts already use AI for organisational purposes, such as managing large document collections and complex data, sometimes without immediate awareness of the AI's presence in the tools they employ.