The use of AI in Trial Witness Statements post-PD 57AC

Quick read

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.

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