New Judicial Guidance on AI

New guidance, published on 12th December 2023, produced by a cross-jurisdictional group, aims to assist judicial office holders in relation to the use of AI in litigation. It sets out key risks and issues, with some suggestions for mitigation.

New Judicial Guidance on the use of AI in Litigation

The topic of AI in litigation continues to gain traction in the legal industry, and it is inevitable that it will have an increasingly important role in the future. There are numerous benefits to the use of AI in litigation, from streamlining document review and enhanced case prediction to increased efficiency – all of which is saving legal professionals significant amounts of time and money. However, the rise of artificial intelligence in litigation of course brings with it challenges as well as opportunities, which is why new guidance published by a cross-jurisdictional group, has been produced to assist judicial office holders and advise on the use of AI. The guidance sets out key risks and issues, with some suggestions for mitigation:

4 key issues surrounding the use of AI in litigation

1. Confidentiality and prudent use

The guidance does not specifically mandate the disclosure of the use of AI tools in research/judgments, “provided these guidelines are appropriately followed, there is no reason why generative AI could not be a potentially useful secondary tool.” Judges are directed towards paid services, though this is presented more as a recommendation than a requirement.To uphold the integrity of the judicial process, judges are explicitly instructed not to enter confidential or private information into public AI systems. Any errors of this nature are to be reported promptly as data incidents or breaches, highlighting the importance of maintaining a secure and confidential environment.

2. Supervision and responsibility

While AI serves as a valuable tool, the guidance underscores the personal responsibility of judges for the outcomes produced. In addition, it also calls for judges to supervise the use of AI by their clerks or assistants, ensuring that the technology is applied judiciously and ethically.

3. AI as a tool for “non-definitive confirmation”

The guidance also provides a nuanced perspective on AI tools, suggesting that they are best seen as a means of obtaining non-definitive confirmation rather than immediately correct facts. This cautious approach acknowledges the evolving nature of AI technology and the need for validation in judicial decision-making.

4. Potential applications of AI

Three potential use cases for AI, in a judicial context, are set out within the guidance:

Summarise

AI tools are capable of summarising large bodies of text. As with any summary, care needs to be taken to ensure the summary is accurate.

Create

AI tools can be used in writing presentations, e.g. to provide suggestions for topics to cover.

Admin

Administrative tasks, such as composing emails and memoranda, can be performed by AI.

Areas where caution is advised

The guidance advises against using AI for detailed legal research, analysis, and reasoning, recognising the limitations of the technology in this remit.

Raising awareness of risks

The guidance extends beyond the judiciary, seeking to raise awareness of potential risks for parties and their representatives. Concerns such as forgery, deepfakes, and hallucinated legal authorities are highlighted. Additionally, -the document emphasises that, for some unrepresented litigants, AI chatbots might be their only recourse, underscoring the need for caution and an understanding of the technology’s limitations. The full guidance can be found here, and whilst worth a read, this likely represents a foundation for an evolving set of guidelines for judges in the future.

Need further advice about AI in litigation?

Although there is much to consider when it comes to the use of AI in litigation, AI tools can have a huge impact on efficiency.AI tools such as TrialView can not only streamline document retrieval and organisation but also enhance collaboration, compliance, and the overall strategic approach to legal proceedings, allowing you to work with enhanced speed and efficiency for every aspect of your case.AI tools such as data recognition, smart pagination, de-duplication, and auto-indexing can ensure your bundles can be organised quickly and easily, whilst fast and efficient bundle creation enables you to work smarter, not harder and focus on outcomes rather than preparation.

If you’d like to learn more about the benefits of AI in litigation, book a tailored demo or alternatively contact our team to find out more.