23 October 2023
Disputes Quick Read – 1 of 81 Insights
The use of AI in Trial Witness Statements post-PD 57AC
With significant advancements in the text generation and document processing capabilities of AI tools, questions have been asked about how AI could streamline dispute resolution. Practice Direction 57AC, which came into force in April 2021, has amended how Trial Witness Statements in the Business and Property Courts must be prepared in a bid to reduce both costs and the level of intervention by lawyers in the drafting process. Many statements, it was said, were over-engineered and far too expensive to produce. The PD's overarching aim of maximising witness statement efficiency would appear to be fertile ground for the implementation of AI tools.
Could AI tools be used to draft witness statements?
The requirement for witness statements to be drafted in the witness 'own words' means that it is unlikely a witness could simply input a series of prompts into an AI tool and pass off the output as their 'own words'. The very nature of generative AI means that it learns from countless sources of written material, combining and condensing into a style definitively not that of any one user.
Further, PD 57AC's requirement for (i) transparency of the drafting process and (ii) the statement to reflect a witness' own knowledge, calls into question how a court might interpret an AI assisted statement. Automating drafting through AI means an intermediary is inserted between witness and statement, severing the direct link between original testimony and final draft. In so doing, it calls into question if the draft is truly the full and entire recollection of the witness.
On the other hand, the utilisation of an appropriate AI tool in the transcription and editing process could aid drafting significantly. Such a tool might transcribe interviews conducted by the lawyers with the witness before editing the text into a draft witness statement, keeping the text as close to verbatim as possible in order to retain the witness' own words. The end result would still be subject to the usual review by the witness, but this approach could well expedite the process and cut costs – aligning with PD 57AC's primary goal.
One could even envisage a process by which AI transcribes the witness' evidence in response to pre-set questions without the need for any review; but that would perhaps lead to a process more akin to that of US depositions – which usually entails greater preparation costs.
Are there other ways AI tools could be used in the witness statement process?
- Automated document preparation – AI tools could be used to collate and chronologise the materials that ought to be put in front of the witness during the drafting process to reduce lawyers' preparation time. However, this use of AI would need to be subject to the usual checks and balances due to risks of both bias and error.
- Unbiased interview technique – Poor interview practice, for example asking leading questions, can lead to the interviewer's biases and assumptions altering the responses of an interviewee, possibly even contributing to the creation of 'false memories'. AI tools can be used to conduct a 'cognitive interview' – a structured approach to interviewing that adopts a neutral, fact-finding approach.
The reforms in PD 57AC may not naturally lend themselves to easy implementation of AI in a pure drafting sense. There are risks attached to the editing process if the AI tool applies its "learned" language which may differ significantly from the witness' own words and forms of expression - in much the same way as a lawyer 'over-engineering' a statement. That said, there is scope for the use of AI in both transcription and ancillary matters (such as document-collation or structuring interviews), which could still go some way towards cutting costs and improving efficiency.
In this series
The use of AI in Trial Witness Statements post-PD 57AC
23 October 2023
by Multiple authors
CAT to hear the first application for a collective settlement approval order
17 October 2023
Failure to prevent fraud – a new offence?
14 August 2023
by Multiple authors
Supreme Court rules that APP fraud victims cannot rely on Quincecare Duty
4 August 2023
by Multiple authors
The Law Commission's Consultation Process on the Arbitration Act 1996 – taking stock
21 July 2023
What does the latest decision of the CAT in the Mastercard/Visa proceedings mean for class actions?
10 July 2023
Disputes Quick Read: ClientEarth refused permission to pursue directors of Shell
1 June 2023
by Multiple authors
Disputes Quick Read – developments in the fixed costs regime
3 May 2023
by James Bryden
Disputes Quick Read: Service by email – are the rules any clearer?
20 April 2023
by James Bryden
Disputes Quick Read - What do practitioners think about making alternative dispute resolution (ADR) compulsory?
8 March 2023
Disputes Quick Read: What are the litigation trends for 2023?
2 March 2023
Disputes Quick Read: further guidance on witness statement preparation rules
14 February 2023
Disputes Quick Read: A cautionary tale – settlement agreement (un)wittingly releases all claims for fraud
13 February 2023
Disputes Quick Read: Why the UK should join the Hague Judgments Convention 2019
8 February 2023
Disputes Quick Read: extensive information orders granted against crypto exchanges following hack
19 January 2023
Disputes Quick Read: A new approach to giving evidence? WhatsApp with that?
3 October 2022
Disputes Quick Read: Ethereum Merge - what legal issues arise?
22 September 2022
by Ben Jones, Emma Allen
Disputes Quick Read: New obligations on cryptobusinesses to report under the UK sanctions regime
9 August 2022
by Nick Maday
Disputes Quick Read: Disclosure - What information can be redacted?
25 July 2022
Disputes Quick Read: what claims exist when a smart contract is breached?
6 July 2022
by Emma Allen
Disputes Quick Read: New gateway for serving Norwich Pharmacal Orders and Bankers Trust orders out of the jurisdiction
Welcome news for those pursuing fraud claims in the English Courts
28 July 2022
Disputes Quick Read: Defining the duty - the limits of the responsibility assumed by professionals
27 July 2022
by Stuart Broom
Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy
29 July 2022
Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
17 June 2022
Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13 June 2022
Disputes Quick Read: ENRC prevails in claim against former solicitor
26 May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
31 May 2022
by Multiple authors
Don't lose your keys: Bitcoin developers do not have a duty to assist owners in recovering lost cryptocurrency
4 April 2022
Disputes Quick Read: The new witness statement preparation rules – a year on
5 April 2022
Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
31 March 2022
by Multiple authors
Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
21 September 2021
by Multiple authors
Disputes Quick Read: Key changes to the Disclosure Pilot Scheme
13 September 2021
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
6 September 2021
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
2 August 2021
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
21 July 2021
Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
15 July 2021
Disputes Quick Read: Will the courts change forever post-COVID?
26 May 2021
Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
5 May 2021
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
21 April 2021
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
31 March 2021
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
24 February 2021
Disputes Quick Read: What lawyers need to know about new witness statement preparation rules
20 January 2021
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
12 January 2021
by Tim Strong
Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
23 November 2020
Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
16 October 2020
Disputes Quick Read: Care required when drafting SPA claim notices
23 September 2020
by Multiple authors
Disputes Quick Read: Why the modernised LCIA rules are a welcome update
7 October 2020
by Nick Storrs
Disputes Quick Read: COVID-19 and supply chain disruption – key issues
9 April 2020
by Multiple authors
Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
15 April 2020
Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27 April 2020
by Multiple authors
Disputes Quick Read: UK's OFSI fines Standard Chartered Bank £20 million for sanctions breaches
21 April 2020
Disputes Quick Read: A different approach to witness evidence
11 March 2020
by James Bryden
Disputes Quick Read: Coronavirus - a growth in virtual courts?
17 March 2020
by Stuart Broom
Disputes Quick Read: Embracing remote hearings – the experience to date
26 March 2020
by Multiple authors
Disputes quick read: climate change activism by litigation
26 February 2020
Disputes Quick Read: Commercial Court's arbitral power shift
21 February 2020
Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
2 June 2020
Disputes Quick Read: Will the civil justice system change forever post COVID-19?
16 June 2020
Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9 July 2020
Disputes Quick Read: The contra proferentem rule reconsidered?
21 July 2020
Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3 December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24 November 2021
by Stuart Broom
Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8 October 2021
Disputes Quick Read: Climate change litigation – what's the latest?
10 January 2022
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
20 January 2022
Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22 March 2022
Disputes Quick Read: Dealing in crypto? Be careful what you call it
7 April 2022
by Multiple authors
Related Insights
CAT to hear the first application for a collective settlement approval order
by Katie Chandler and Samantha Brendish
What next for online marketplaces? Product safety and liability reforms in the UK and the EU
by multiple authors
OPSS announces radical reforms to the UK product safety regime
by multiple authors