Could ChatGPT Be Your Next Expert Witness?

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As one of the hot topics of this hot summer was artificial intelligence or AI. Depending on the article you read about it, AI is either a valuable tool for creative workers or a death knell. Of course, the buzz glossed over the fact that AI was already with us. If you talk to Siri or Alexa, you’re talking to AI.

What got everyone’s attention was generative or creative AI. This is software that uses vast databases and learning models to generate text or images, often by answering questions or conversing with users. The best-known program at this point is OpenAI’s ChatGPT, though there are others such as Google’s Bard and Microsoft’s Bing Chat.

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Briefs and Contracts

In a sense, generative AI is the revenge of the factory worker. The decline of manufacturing jobs over the last few decades was often blamed on outsourcing and unfair international competition, but the biggest factor was automation. Now, creative workers are facing a similar challenge.

As with all labor-saving technologies, the big question is whether AI will replace or enhance labor. Attorneys aren’t the only ones with a stake in this. Journalists wonder how news articles will be written in the future, and Hollywood writers are wondering the same thing about movies and TV shows.

AI has stormed into the practice of law, as companies now sell specialized AI applications to write briefs and contracts. But caveat emptor: You may have read about the New York attorney who was caught using ChatGPT for legal research after he filed a brief that referenced legal cases that didn’t exist.

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ChatGPT as Expert Witness?

What about expert witnesses? I decided to ask ChatGPT to write a paragraph about its use by experts, and this is part of its response:

“The utilization of ChatGPT by expert witnesses has emerged as a transformative development. Expert witnesses, renowned for providing specialized insights and analysis to assist the court in understanding complex subjects, now harness the power of ChatGPT to enhance their testimonies. By employing ChatGPT, these experts can effectively communicate intricate concepts to judges, juries, and attorneys, breaking down convoluted technical details into comprehensible language.”

It’s news to me that experts are already using AI to write reports. Also, I’m not sure how “comprehensible” the language of that paragraph actually is. Clearly, one must always be ready to edit AI-generated text.

ChatGPT’s answer went on for a bit longer – it’s very chatty! – but it spoke in generalities. So I asked something more specific. What discount rate should an expert use to project lost earnings in a personal injury lawsuit? I wondered if it would give me a number. The bot replied:

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“Determining the appropriate discount rate for projecting lost earnings involves careful consideration of various factors. Typically, experts use a risk-free rate as a foundation, often based on U.S. Treasury yields, to reflect a secure investment.”

The first sentence sounds like a student essay. The second sentence is right on the money, but it’s not particularly helpful. I’ll have to refine my queries if I’m going to use this tool in the future.

Robust Ethical Guidelines

Perhaps the greatest uncertainty about generative AI is precisely what it is. Is it the work of a document’s author or the creator of the AI software? Is it the property of the business owner or an employee? A hint of an answer was provided by a recent federal court ruling that an AI-generated image could not be copyrighted because “human authorship is a bedrock requirement” of copyright law.

Can AI be integrated into an expert opinion? According to ChatGPT, using AI in expert work “raises questions about the balance between human expertise and AI assistance, spotlighting the need for robust ethical guidelines to ensure transparency, accuracy, and the preservation of the adversarial nature of litigation.”

That sounds precisely right. I presume that many organizations, including the National Association of Forensic Economics, of which I’m a member, will soon have a few things to say about their professions’ use of AI. In the meantime, it’s probably a good idea to ask your expert who (or what) produced that expert report.

Dr. Andrew Brod

Dr. Andrew Brod is the president of Brod Forensic Economics in Greensboro, NC. Dr. Brod has worked as a forensic economist for 25 years and focuses on economic damages for both plaintiffs and defendants: lost earnings in personal injury and wrongful death cases, lost profits in complex commercial cases. He has also conducted other types of economic analyses. Dr. Brod is a senior research fellow in the Bryan School of Business and Economics at The University of North Carolina at Greensboro. He holds a Ph.D. in economics from the University of Minnesota and did his undergraduate work at the University of Illinois. Learn more about him at www.AndrewBrod.com.

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