How not to use AI in expert evidence

 

Summary

In this US case, an expert in fiduciary services used Microsoft’s Copilot to cross-check calculations he used in expert evidence. He was unable to recall the prompts he used, state the sources Copilot relied on, or explain how the tool worked and arrived at its outputs. The judge provided some useful insight into the challenges with using AI in expert evidence.  

Learning points

Learning points for experts:

• Do not use an AI tool unless you fully understand it and can explain how the tool works, how you have used it, how it generated the results, and what the results mean.

• If an AI tool is not generally utilised in your field, consider whether it is appropriate to use it for expert evidence.

• Do not rely on an AI tool if the results are not fully replicable.

• Check the AI tool to see if its developers consider it sufficiently reliable to be used in court proceedings.

• Be aware that AI tools are often trained primarily on data from non-UK jurisdictions.

• If you wish to use an AI tool, tell your instructing party as soon as possible which tool you intend to use, explaining why you require it and how you intend to use it.

• Disclose your use of the AI tool to all parties and the court, clearly setting out the prompts and configurations you have used.

• Make sure you use the AI tool thoughtfully and be extremely careful before entering any confidential or personal information. Remember that AI tools will generally retain any information you enter and the organisation managing the tool may use that information to provide services to third-parties.

• If you use, or are considering using, AI tools in your expert witness work, make sure you understand any guidance on the use of AI in court proceedings, and especially any guidance or case law on the use of AI in expert evidence.

• Be appropriately cautious with documents generated by others using AI tools.

• Be aware of changing regualtory frameworks. The Civil Justice Council are considering additional requirements for experts to disclose the use of AI.

• Consider confirming the accepted uses of AI you might be intending on using with your Insturcting Party and ensure this is documented in your contract.

• Check your insurance policy. A recent review on the proliferation of AI exclusions undertaken by the National Law Review identified that the increasing use of AI has prompted insurers to update policy wordings with explicit exclusions of the insurer's liability for claims connected with the acutual or alleged use of AI.

• Lastly, it is worth considering how AI tools might impact your practice. Developments in AI are advancing rapidly and may have an impact in the future on the work of many expert witnesses. Even if you don’t choose to use AI yourself, the opposing expert might.

• You can watch Sir Keith Lindblom’s keynote address to the 2024 EWI Conference to hear the judiciary’s view on the role of AI in expert evidence. Also of interest is Sir Geoffery Vos’s speech on AI – Transforming the work of lawyers and judges and the Judicial Guidance on the use of AI.

Learning points for instructing parties:

• Ask the experts you instruct whether they intend to use any AI tools.

• If they intend to use an AI tool, make them aware of any guidance or case law on the use of AI tools in expert evidence.

• Ensure that any use of AI tools is disclosed to the court and the other party.

• Ideally, you should include the request to use AI in your application for permission to rely on expert evidence, explaining why the tool is needed, how it will be used, why it is reliable, and how any confidential or personal information will be protected.  

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