Raising the Bar

Federal Court Issues Updated Notice Regarding the Use of AI in Court Proceedings

Raising the Bar

Federal Court Issues Updated Notice Regarding the Use of AI in Court Proceedings

Date: June 5, 2024

In light of the increasing use of Artificial Intelligence (AI) in the legal profession, the Federal Court has issued an updated notice regarding the use of AI in Court proceedings (Notice). The Notice implements procedural safeguards for the use of AI in legal proceedings and imposes certain duties on counsel with respect to AI use. The Notice is effective as of May 7, 2024.

The Notice underscores the responsibilities of parties and their counsel in ensuring the accuracy and transparency of AI-generated content in order to maintain the integrity of judicial proceedings. Specifically, the Notice addresses the requirement for a mandatory declaration related to AI-generated content (Declaration) and the need to consider certain principles when using AI to prepare materials filed with the Court.

Declaration for AI-generated Content

Any document prepared for litigation purposes that includes AI-generated content must include a Declaration in its first paragraph, detailing the use of AI.

The Declaration requirement applies to all materials submitted to the Court that are prepared for the purpose of litigation. The requirement for a Declaration does not apply to certified tribunal records and expert reports, where AI usage must be disclosed under subparagraph 3(i) of the Expert Witness Code of Conduct under Rule 52.2 of the Federal Court Rules.

A Declaration is required only when the contribution of the AI resembles that of a co-author (i.e., when content in the material was created or provided by AI). Content is to be considered as created or provided by AI whether or not it was inserted from an external source such as a web-based generative AI program.

When counsel takes over a matter from a previous lawyer or self-represented litigant, counsel must make best efforts to ascertain whether AI-generated content is contained in the material so a Declaration can be made as required. Indications that content was authored by generative AI could include:

  • unusual tone (too formal or too informal)
  • overly complex sentence structure
  • unusual or incorrect wording
  • overly verbose or “over the top” language
  • lack of credible sources
  • repetitive words or phrases
  • redundant sentences
  • vague statements

A Declaration is not required if AI was used to merely suggest changes, provide recommendations, or critique content already created by a human who could then consider and manually implement the changes.

An example of a Declaration would be “Artificial intelligence (AI) was used to generate content in this document at paragraphs 20–30.”

Principles in the Use of AI

The Notice requires that the following principles be considered when using AI to prepare materials filed with the Court:

  • Caution: There is a significant emphasis on using reliable sources for AI-generated legal references and analyses.
  • “Human in the loop”: Human beings must be involved to verify AI outputs, in accordance with professional standards in legal document preparation.
  • Neutrality: The inclusion of a Declaration, in and of itself, will not attract an adverse inference by the Court.

Key Takeaways

The duties outlined in the Notice apply equally to counsel and self-represented individuals. The Court also recognizes that counsel have duties as officers of the Court that do not apply to self-represented individuals, so the Notice provides fair treatment to all parties and interveners regardless of representation.

The Court recognizes the potential biases and risks associated with AI technologies and their impact on decision-making processes as well as the benefits of this technology and that the effective administration of justice may increasingly rely on or be impacted by AI.

Accordingly, the Court expressed its commitment to continually update and refine its policies on AI use as understanding and technologies evolve, to continue engagement with stakeholders to ensure that policies remain relevant and effective and, significantly, to not use AI (especially automated decision-making tools) to make its decisions or render its judgments, without first engaging in public consultation.

The Federal Court’s Notice regarding the use of AI represents a significant development in how courts and other tribunals will address the use of AI-generated content in legal proceedings and may well influence the policies and procedures of other courts and tribunals. It is important to be mindful of these policies when considering the potential use of AI in any legal proceedings.

For more information on this Notice, please contact your regular Hicks Morley lawyer.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©