AI and the expectations for expert witnesses – part 2

Artificial intelligence (AI) has already transformed the legal profession, including in relation to research, data analysis and the preparation of court documents. However, these benefits come with risks, as observed by Dame Victoria Sharp in Ayinde v The London Borough of Haringey [2025]. 

In our previous article, we noted that although the Judicial Council had recently issued guidance to judicial office holders on the use of AI, CPR Part 35 currently contains no specific guidance for experts.  In the Bond Solon Expert Witness Survey, published on 7 November 2025, 89% of respondents felt that specific guidance was required for the use of AI by expert witnesses in the UK. 

Academy of Experts’ guidance on the use of AI

On 30 January 2026, the Academy of Experts published guidance for expert witnesses on the use of AI. 

In the foreword to the guidance, Rt Hon Lord Neuberger of Abbotsbury states that he believes it is vital that all experts are fully informed and up to date about the advantages, limits and risks of using AI, and the appropriate information to include in their reports.  It is strongly recommended that all expert witnesses read the guidance and bear it in mind when considering their views and evidence and preparing their reports.  

Understanding AI 

Section A includes background information on AI (including the various forms of AI and how to recognise when a tool uses AI), how experts might use AI and the risks involved. 

Guidance on the use of AI 

Section B sets out how experts can engage with AI in a manner which is both compliant with their duties as an expert and which upholds public trust. 

Prior to using AI, experts should:

• Ensure that they are permitted to use AI at all (this involves considering their professional duties and the contractual arrangements with their instructing lawyers);
• Determine the purpose for which they intend to use AI;
• Carefully consider whether it is lawful and appropriate to use AI for the specific purpose identified, and the risk level involved;
• Select the appropriate AI tool for the purpose;
• Understand how the AI tool works; and
• Record key AI uses and decisions.

The guidance sets out the need for experts to liaise appropriately with instructing lawyers.  Subject to any contractual requirements, for any proposed high-risk purpose, the expert should disclose this to their instructing lawyers and ensure there are no objections before proceeding.  For any proposed low-risk purpose, the expert may not need to disclose this, but they should satisfy themselves that there are unlikely to be any concerns raised and be prepared to explain their use of AI under cross examination. If the expert is in any doubt about the level of risk or about their instructing lawyer’s position, then they should disclose this.

The guidance sets out three categories of risk and suggests different approaches for each.  There is also a helpful checklist containing examples of uses of AI, which sets out the likely level of risk for each proposed use. 

Categories of Risk 

Prohibited. For example:

• A use which would be a breach of the expert’s duty (e.g. the complete outsourcing of the expert’s work to an AI tool);
• When the use of AI is prohibited by the instructing lawyers;

High risk. For example, where AI is used to:

• Generate substantive content (e.g. the expert’s opinion);
• Undertake material analysis on which the expert’s opinion will be based;
• Recreate scenarios to use as the basis for analysis underpinning the expert’s opinion;
• Assist the expert in forming their opinion where that opinion is likely to have an important impact on an individuals’ fundamental rights, health and/or financial wellbeing.

Low risk. For example, where AI is used to:

• Provide information to the expert or be used as a research tool;
• Summarise, extract key information from or analyse documents, where this is unlikely to constitute material analysis on which the expert’s opinion will be based;
• Review text for grammar, spelling, punctuation and to suggest basic stylistic or tonal corrections, without altering the substantive content;
• Undertake administrative tasks, for example, organising documents. 

Safeguards

Experts should ensure they implement appropriate safeguards. In particular, they should:

•  Ensure adequate human oversight
• Document key steps
• Check for inaccuracy/hallucination
•  Ensure compliance with applicable law and regulation
• Maintain vigilance around AI use
• Keep in mind the impact of AI on professional duties
• Liaise with instructing lawyers
• Consider team members’ potential use of AI and
• Consider disclosing the use of AI

Civil Justice Council consultation on the use of AI 

The CJC launched a consultation on the use of AI for preparing court documents and published an interim report on 17 February 2026.   

The purpose of the consultation paper is to consider whether rules are needed to govern the use of AI in the preparation of court documents. “Court documents” are documents created for the purpose of being provided to the court, and include statements of case, skeleton arguments, witness statements and expert reports. 

Regarding expert reports, the consultation paper refers to the American case of Kohls v Elison No 24-cv-3754 (D Minn 10 January 2025) in which an expert witness used AI to draft his report and accidentally submitted misinformation.    

The consultation paper states that while it is difficult to see why using AI as a research tool or to extract material from voluminous documents should necessarily be disclosed, there will be circumstances (as occurred in Kohls v Elison) in which a failure to disclose its use could lead to erroneous evidence being put before the court.  

The CJC propose that the expert declaration (Practice Direction PD35 at 3.3) be amended to explain what use of AI has been made (other than for transcription and other administrative uses) and that the expert identifies the AI tools used.

The CJC consultation closes on 14 April 2026, following which they will publish a final report. 

Comment

We anticipate that changes to Part 35 on the use of AI may follow in due course following the CJC’s final report. 

Pending any such changes to Part 35, and as discussed in our December 2025 article, we recommend that lawyers give clear instructions on the use of AI to their experts.  We also recommend that experts and those instructing them read the Academy of Experts’ guidance, and keep up to date with developments in this rapidly evolving field. 

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