The expert witness and the benefits and dangers of artificial intelligence
Garth McComb - Director, Driver Trett Malaysia delves into the pleasures and perils of artificial intelligence in supporting expert witnesses.
By definition, an expert is likely to be a fairly intelligent person (even if the opposing expert is always less so…), so why would an expert require artificial intelligence (AI)?
When I first started out as a placement year, trainee quantity surveyor with a large QS firm in Birmingham many years ago, one of the first people I was introduced to was the newly appointed company computing and information technology manager. His appointment had coincided with the delivery of a new dedicated computerised measurement system and he had been less busy than everyone else on the day it arrived. I still remember a sign that he had on the wall beside his workstation which read “To err is human, to really screw things up you need a computer”.
While technology has changed since then, in ways that most of us couldn’t have imagined, there are still things that go wrong and I am all too frequently reminded of that sign at the IT guy’s desk.
Back to the present, and computer software can do so much more than set out a bill of quantities in a structured, logical manner (could it ever?).
On a dispute that I was recently involved in, the client told us at one of the initial meetings that they had virtually no evidence to support their contention that the subcontractor had caused most of the delays. They were sure that he had; but they had no evidence to prove it.
We requested a copy of our client’s project server containing emails, incoming and outgoing correspondence, drawing registers, site memos, etc., etc., etc. The information on the server was fed in to our AI system and certain keywords related to one of 62 systems within the project were added. At the first pass, the AI software identified around 60,000 potential hits (data files) related to delays in this system. After less than two days, by adding further filter keywords related to the type of information we were looking for, this had been reduced to 1,200 documents which were then searchable manually. This turned up numerous records of the delays in the form of letters, emails, meeting minutes, and even photographs that our client had previously been unaware they possessed.
I suppose it is the nature of the industry that, by the time most construction related disputes get down to the real fighting, most of the people that were actually on site performing the work have long since gone, and the real story of what actually transpired on site can often be obscured, or even lost entirely.
It is at this point that experts are often appointed and have to make up their own mind, based on the evidence available, what should have and what did actually happen. Generally, there will be factual witnesses who can describe what actually transpired on site, but in most cases, this may mean asking someone to remember often mundane details of their work from years earlier.
This is where it can start to get tricky. By this stage, whichever side the expert is appointed by will have made up their minds that their position is the right one and that they have every right to payment, or not to pay, depending on which side they are on.
They will tend to have a plethora of evidence supporting their position and surprisingly little, if any, indicating that the other side may actually have a valid argument.
In fulfilling their role, an independent expert is required to examine all information provided to them and to provide the tribunal that is hearing the case an unbiased and unblinkered view of the facts.
Clients often look incredulous when it is explained to them that an expert witness has to consider all information available to them whether or not it supports the client’s case.
Experts will normally ask for as much information as the client possesses and then make up their own mind what is relevant or not. However, a recent case report from the supreme court of Western Australia caught my eye and serves as a timely reminder of something that parties, or legal counsel, should bear in mind when instructing experts and providing them with evidence to analyse.
In the case of Westgem versus the Commonwealth Bank of Australia, an expert was instructed by the defendant’s solicitors to prepare a report for use at the trial; and to express his opinion on the time and costs involved to complete a building development in Perth, Western Australia.
For the purposes of preparing his report the defendant’s solicitors provided the expert with a large volume of documents which were provided to him in electronic form. His report, quite rightly, contained a list of documents that had been provided to him for the purposes of preparing his report.
Certain documents, over which legal professional privilege was claimed, had been provided to the expert in unredacted form. The same documents had only been provided to the plaintiff in redacted form. The plaintiff sought production of the original documents in full.
The expert wrote to the defendant’s solicitors advising that:
- The documents he had relied on in forming his opinion were those expressly referenced in the report, or one of the appendices to it.
- He had not relied on any of the privileged documents in the formation of his opinion.
- The privileged documents had not influenced the content of his report.
The judge ruled that legal professional privilege in the documents had been waived when the expert’s report had been submitted.
The judge highlighted a degree of inconsistency in the defendant’s approach to disclosure, in that they must be taken to have been willing to waive privilege in the documents had the expert relied upon them, but unwilling to waive privilege if the expert did not rely on them.
Another part of the judge’s reasoning was that the defendant’s solicitors must have considered the documents to be potentially relevant, or they would not have given them to the expert in the first place.
Furthermore, relying on a statement from the expert as to whether the documents had influenced his opinion, would deny the cross-examiners the opportunity to test the expert’s opinion by exploring whether he was wrong to disregard the material that he said he didn’t rely on.
In the judge’s view, legal professional privilege in the documents was lost when the expert’s report was served, notwithstanding the expert’s statements to the effect that the contents of those documents were not relied upon by him, or that they did not influence the formation of his opinions.
So, it is worth remembering that an independent expert’s duty is to analyse and consider all the information made available to them, irrespective of whether it supports or may be harmful to their client’s case. They should also clearly identify all of the documents that were made available to them.
Artificial intelligence software may be the way of the future, but the phrase ‘warts and all’ springs to mind. It is worth remembering that most expert reports will contain a phrase along the following lines: “I have endeavoured to include in my report those matters, of which I have knowledge or of which I have been made aware, that might adversely affect the validity of my opinion. I have clearly stated any qualifications to my opinion.”
With use of AI in discovery on the rise, will that statement hold true?