CJC recommends AI declarations for witness statements and expert reports

What happened

The Civil Justice Council (CJC) has recommended that the use of AI in preparing witness statements and expert reports should be declared to the court, according to Legal Futures. It also called for urgent work on guidance for litigants in person who use the technology.

An earlier consultation had proposed that litigators should have to declare that they did not use AI in preparing witness statements for trial. For other documents, such as statements of case and skeletons, no declaration of AI assistance was proposed, so long as the document bore the name of the legal representative taking professional responsibility for it. The final report maintained that position, concluding that "the starting point for the regulation of AI use in the preparation of court documents should remain with legal representatives and their professional regulators".

For a witness of fact, the report says there should be a declaration that the statement has not been prepared through an AI tool that has "generated or influenced its substantive content". The working group said this is to secure the integrity of the witness's evidence and to ensure it is given in their own words. Expert witnesses should make a similar declaration, containing enough detail "to enable the expert's evidence to be scrutinised and tested effectively by opposing parties and the court".

The report also recommends a practice direction, drafted by the Civil Procedure Rule Committee, adopting "a functional, risk-based approach to AI use". It should consolidate the court's existing approach to accuracy, verification and responsibility, and give guidance on the existing sanctions for misuse of AI. Regulators, including the Legal Services Board, should explore joint guidance and make sure training requirements include suitable guidance on responsible AI use.

What it means for solicitors

These are recommendations, not rules in force. The working group stressed that the focus is on "the result of such use, not on the use itself or the tool that produces the result".

For litigation teams, the line between a document a representative signs and evidence given by a witness is central. Witness statements prepared and signed by legal representatives would not be caught unless they were given as a witness of fact, and the stated aim is that a witness's evidence is given in their own words.

One reading is that firms may want a record of who used a tool, for what, and who checked the output against the underlying source. A firm may wish to consider whether its file notes would show that, and whether staff know the difference between drafting a statement of case and preparing a witness's evidence.

Where Counsel AI fits

Counsel AI is software, not a law firm.

Its drafts and first reads cite the section of legislation they rely on. Given the report's emphasis on accuracy and verification, that may help a reviewer go straight to the cited section and check the point against the source rather than taking the draft on trust. As the report keeps responsibility with the legal representative, the reviewing solicitor remains answerable for what is signed and filed.

Where a team does use AI in its drafting, a cited section gives the reviewer something concrete to check and to note on the file.