Up to Speed? Dissecting Regulations on the Use of Artificial Intelligence
AI imagined by Google DeepMind… Unsplash
One only has to recall the case of Mata v. Avianca, Inc. to see the proliferation of artificial intelligence (AI) in the legal industry.[1] In this American case, a lawyer with 30 years of experience provided submissions to the court using AI software and the expert system ‘ChatGPT’ to generate false cases in support of their claims.[2] Increasingly, there have been calls to regulate AI in the legal industry as studies show lawyers are increasingly moving towards adopting AI into their practice.[3] Additionally, regulation of the use of AI to assist in the production of expert witness evidence has remained under the radar until recently, when in an ironic twist of fate, a professor and expert on AI used ChatGPT to provide fake citations to two academic articles.[4] This oversight culminated in the exclusion of the expert witness’ report in its entirety.[5] As a consequence of this unprofessional conduct, amendments have been made to the NSW Supreme Court and Land and Environment Court, as well as the Uniform Civil Procedure Rules 2009 (NSW)(‘UCPR’) to advise on the use of AI in the legal industry.[6]
Changes to the Court Practice Notes
From 3 February 2025, Supreme Court Practice Notes SC 23 on the Use of Generative Artificial Intelligence (‘Gen AI Practice Notes’) applies to all proceedings.[7] Generally, the court forbids legal practitioners from using AI to assist in the production of critical documents, including affidavits and witness statements, written submissions, and expert reports.[8] In these instances, a blanket ban may only be lifted if the applicant acquires leave from the Court, which is so onerous that legal practitioners will almost exclusively forgo the trouble of seeking such a requirement.[9]
Changes to Uniform Civil Procedure Rules
The UCPR also introduces significant changes to accommodate the rise of AI use in the legal industry. A new definition for ‘generative artificial intelligence’ has been included in the UCPR Dictionary, which is defined as “an artificial intelligence tool capable of creating text, images, sound or other content based on patterns and data obtained from a body of material and includes large language models…”.[10] The definition notably excludes spell-checking, translation, transcription, and formatting assistance tools.[11]
In line with the Gen AI Practice Notes, using AI is forbidden for preparing expert witness reports, affidavits and similar evidence.[12] Where artificial intelligence is allowed to be used, or leave has been granted, applicable provisions require practitioners/experts to provide proper recognition of the use of AI.[13] Most notably, a large proportion of the amendments have been focused on regulating expert witness evidence. The expert witness code of conduct, which is to be provided to experts during each engagement, now notes that expert reports must include a statement saying that generative AI was not used to produce the report.[14] Where leave has been obtained, and AI has been used, reports must include:
● A statement recognising that AI was used;
● Where in the report it was used;
● The program used;
● The date it was used;
● The version of the AI used;
● The prompts/scripts/data used; and
● Any applicable relevant practice that binds the expert.[15]
Leave a difficult step?
For the sake of amusement, and perhaps to add a touch of irony, I posed the following question to ChatGPT: “When would it be appropriate to seek leave of the court to use artificial intelligence to assist with generating an affidavit?”. In response, I was provided with a general hypothetical scenario, which was the following: “A large corporate class-action lawsuit is being filed by a group of workers against a multinational company for alleged workplace safety violations, spanning across multiple jurisdictions”. ChatGPT explained, in exceptionally general terms, how a range of technical and scientific data would be required, and as such, leave of the court would be appropriate to resolve the legal issues in dispute. Although a unique perspective, it is unlikely that a judge would feel the same.
Interestingly, ChatGPT’s response also outlined the risks and shortcomings of using AI to generate an affidavit. These included AI’s inability to capture the individual worker’s experiences, the uniqueness of the worker’s particular claim, and ethical issues with obtaining sensitive data such as medical records. These issues can not be overlooked and are key reasons why legal professionals are tasked with precisely recounting the dispute’s timeline over AI. The equal importance placed on evidence from expert witness reports means that relying on AI to provide opinions on unique situations — such as identifying defects in a recently built substandard residential construction or tracing complex transactions through several bank accounts — would be impossible.
Implications for Legal Professionals and Expert Witnesses
Legal professionals and expert witnesses engaged in preparing an expert report must be cautious when utilising AI, distinguishing between tasks where its use is acceptable and forbidden. With these amendments, obtaining leave would be a challenging task for professionals seeking to claim its necessary use. It is hard to foresee a situation where this would be applicable, given that the amendments establish a high threshold to be met. As of the time of writing, AI remains in its infancy - it is an excellent tool to assist with research tasks, menial formatting, and organisation work. However, its "hallucinations”, as described in the Gen AI Practice Notes, result in false cases and unverifiable information.[16] Generally, legal professionals and expert witnesses should limit their AI use to what will not be examined in court to avoid perjury.
[1] Mata v Avianca, Inc., 678 F Supp 3d 443 (SDNY, 2023).
[2] Ibid.
[3] Lawyers Weekly, 'Navigating AI Regulation in the Profession' (12 March 2025) https://www.lawyersweekly.com.au/biglaw/40052-navigating-ai-regulation-in-the-profession.
[4] Kohls v Ellison, 24-cv-3754 (LMP/DLM) (D Minn, 10 January 2025).
[5] Ibid.
[6] Uniform Civil Procedure Rules 2009 (NSW) (‘UCPR’).
[7] Supreme Court of New South Wales Practice Note SC Gen 23: Use of Genarative Artificial Intelligence, 28 January 2025 (‘Gen AI Practice Notes’).
[8] Ibid.
[9] Ibid.
[10] UCPR, Dictionary (n 4).
[11] Ibid.
[12] Ibid. See, eg, r 31.27(5)-(8) and r 35.3B.
[13] Ibid.
[14] Ibid, sch 7.
[15] Ibid.
[16] Gen AI Practice Notes, para 7 (n 6).