High Court judge warns expert witnesses over failure to disclose AI use in reports

Mrs Justice Joanna Smith was co-chair of the Civil Justice Council’s (CJC) working group which recently recommended new rules on the use of artificial intelligence (AI) in preparing court documents.

The report, published in October, recommended disclosure requirements for witnesses and expert witnesses who had used AI in the process of submitting their evidence.

Speaking to delegates at the Bond Solon Expert Witness Conference on Friday, Smith said that the report attempts to reflect a balanced approach to the opportunities and risks of AI.

She acknowledged that AI technologies can improve efficiency and productivity, and help users to process large volumes of information, identify patterns and communicate complex material more effectively.

However, she warned of the risks involved in AI use, which she said included the production of “entirely false information presented with complete confidence”.

Smith also warned that the use of AI could "erode" independent judgment, undermining professional integrity.

She said: "An AI summary of a document may not pick up a crucial feature that would have jumped out at you; it may miss important matters of context or nuance.

"In this way, if used in a report without checking the underlying document thoroughly, it may influence the substantive content. An administrative tool that helps to structure user content may influence (albeit perhaps only in a subtle way) the substantive nature of the content.

"AI transcription may create substantive content that does not accurately reflect what was said. This is why at all times your focus as an expert should be on understanding what the AI tool that you are using is capable of."

Smith meanwhile said that if the CJC's recommendations are accepted by the rules committee, expert witnesses must disclose their AI use, and that they would be subject to "searching questions" if AI use is not properly disclosed.

"Where appropriate, you can of course make use of AI as a tool for research and as a tool to achieve greater efficiency and speed, but if it is used in any way that may directly or indirectly generate or influence the content of your evidence its use will have to be disclosed and you will have to provide sufficient information to the other side and to the court for them to be satisfied that your report is nevertheless genuinely a product of your own opinions."

If proper disclosure is not provided, expert witnesses can expect their reports to be the subject of searching questions in cross-examination "during which you will have to justify your use of the AI tool and explain why it has not in any way influenced your expert opinion", she said.

Concluding, she told delegates: "AI is a tool. Much as we may be prone to anthropomorphise it, AI is not an expert and should not be a substitute for expert opinion. Responsibility will always remain with the expert witness. Ultimately, as I hope I have shown, transparency, verification and professional judgment are essential safeguards and should be your guiding principles.

"As it seems to me, the future belongs to experts who understand both the capabilities and the limitations of AI, who keep abreast of new technologies and who use AI thoughtfully, appropriately and (where necessary) transparently in support of their overriding duty to the court."

Adam Carey