Introduction
The evolving role of expert witnesses in civil justice [3], particularly in the context of personal injury cases, is under scrutiny. This includes considerations for accreditation beyond the existing MedCo scheme and the integration of artificial intelligence (AI) in legal processes. These developments highlight the need for updated guidance and rules to ensure the effective and objective use of expert evidence.
Description
Accreditation for expert witnesses beyond the existing MedCo scheme in personal injury is under consideration [1], as indicated by the deputy head of civil justice [1]. There is a growing recognition of the need for guidance on the use of artificial intelligence (AI) for experts, similar to the existing judicial guidance. Lord Justice Birss [2] [3], who is set to become Chancellor of the High Court [3], recently underscored the essential role of expert witnesses in civil justice during a keynote address at the Expert Witness Institute Annual Conference [3]. He emphasized the importance of Civil Procedure Rules (CPR) 35.1 and 35.3 in ensuring that expert evidence remains both essential and objective [3], while also addressing the challenges related to costs [3], complexity [2] [3], and scrutiny of such evidence [3].
Expert evidence often incurs significant time and cost [1], and while the rule against calling more than one expert is beneficial [1], further improvements are necessary [1]. The issue of inadequate challenge to poor expert evidence is also highlighted, with the potential for professional expert witnesses to help mitigate these challenges [1]. AI is already integrated into legal practice [2], particularly in the disclosure process for large data sets through Technology Assisted Review (TAR) [2], which allows lawyers to train machine learning models to efficiently identify relevant documents [2]. Birss clarified that if AI is used solely as a tool for identifying relevant documents [3], its use does not require disclosure; however [3], if the method of searching is pertinent to a legal argument [3], then disclosure becomes necessary [3].
There is an ongoing exploration of the need for rules regarding the use of AI in preparing court documents [1], including pleadings [1], witness statements [1] [2], and expert reports [1]. Birss raised important considerations about the implications of AI in drafting these documents, expressing concerns about the complexities it may introduce to the witness statement process [2]. The discussion also includes the page limit for expert evidence in intermediate track cases [1], suggesting that a limit of 20 pages [1], excluding supplementary materials [1], should be manageable [1]. In light of recent issues surrounding AI hallucinations [2], there is a call for the judiciary to reassess its permissive stance on AI use in legal contexts [2], reflecting the need for caution amidst growing international concerns about AI reliability [2]. Further discussions are warranted regarding developments involving the OPRC in property and possession claims [3], as well as the rules governing AI’s role in legal documentation [3].
Conclusion
The ongoing evaluation of expert witness accreditation and the integration of AI in legal processes have significant implications for the future of civil justice. These developments necessitate careful consideration to balance efficiency with the integrity and reliability of expert evidence. As AI continues to evolve, the legal system must adapt to ensure that its use enhances, rather than undermines, the pursuit of justice.
References
[1] https://www.legalfutures.co.uk/latest-news/birss-accreditation-of-experts-could-be-extended-beyond-pi
[2] https://www.localgovernmentlawyer.co.uk/information-law/344-information-law-features/61529-seven-key-insights-lord-justice-birss-considers-ai-in-civil-justice
[3] https://www.localgovernmentlawyer.co.uk/housing-law/315-housing-features/61530-seven-key-insights-lord-justice-birss-considers-ai-in-civil-justice
