The emergence of AI is revolutionising industries by enhancing efficiency and innovation. From automating tasks to enabling advanced data analysis, AI is reshaping the way we live and work, offering unprecedented opportunities and challenges in technology.
The Supreme Court of Victoria has released guidelines for litigants utilising artificial intelligence in litigation.
The Guidelines are a response to the rapid emergence and adoption of generative AI, which the court guidelines define as “a term describing a range of technologies and techniques used to computationally generate outputs that typically require human intelligence to produce.”
The Guidelines outline several principles for the use of AI by litigants. Parties and practitioners using AI tools in the course of litigation should ensure they have an understanding of how those tools work and their limitations.
The Court acknowledges that the assistance of computers is an important tool in efficiently conducting litigation, and that generative AI will also be an important tool
The Guidelines provide some initial principles for litigants to consider when utilising generative AI:
- Litigants should understand how their AI tools work, and their limitations.
- Litigants should consider privacy and confidentiality of information that is provided to an external program.
- The use of AI should not indirectly mislead another party in the proceedings as to the nature of work undertaken, or content produced by generative AI
- The use of AI is subject to the existing obligations of parties in proceedings (parties must consider the Civil Procedure Act 2010, especially Part 2.1-2.4)
- Self-represented litigants and witnesses who use generative AI are encouraged to identify their use of generative AI
The Court acknowledged that it is already using AI technology, such as Technology Assisted Review, for large scale document review. However, AI is not used for developing reasons for decisions of the Court, as it does not engage in a reasoning process, nor can it consider the specific requirements of the court.
Generative AI and Confidentiality
The Guidelines acknowledge that there has been another step forward for the implementation of a new generation of legal technology. With the ongoing rollout of large language models (LLMs) which can be trained to specific legal tasks, there is great potential for AI to assist legal practitioners efficiently conduct litigation.
Litigants, and especially self-represented litigants, should be aware that public tools such as ChatGPT are trained on data inputted into their system. Therefore, inputting confidential information (such as information provided to the litigant by another party in the proceedings) would constitute a significant breach of confidentiality. Therefore, litigants should be careful in their use of these publicly available generative AI systems.
The future of legal technology and efficient litigation
Legal tools utilising AI that conform to privacy and security requirements are currently under development and actively rolling out.
This will raise an important question, with overarching obligations in the Civil Procedure Act to ensure that costs are reasonable and proportionate, will it soon become a requirement to utilise this generative AI to ensure that undue time is not spent on tasks that could be performed by AI? And how will law firms respond to the equally important duty not to mislead or deceive, when an AI could “hallucinate” facts.
It will be important to balance these factors in any implementation of AI. Only one thing is sure, these tools are here to stay, and litigants will need to learn how to co-exist with them.
AI at Hunt & Hunt
Hunt & Hunt has implemented its own AI policy and an AI Committee, which recognises the importance that AI will have in coming years. This ensures that clients privacy and confidentiality is given the utmost importance, while ensuring that clients receive the benefits of matters being conducted efficiently through the use of AI tools.
Copilot was used in the preparation of this article.
