As artificial intelligence continues to have a major impact on industry and everyday life, Australian judiciary is working on the impact of AI in court.
Since the recent rise in AI programs such as ChatGpt, Microsoft Copilot and Google Gemini, lawyers around the world have been arrested and often punished for misusing generative AI tools in court.
In response, jurisdictions around Australia have released guidelines for lawyers and self-expression litigation regarding the use of AI in litigation.
Supreme Court Judge Chris Kourakis, of the Supreme Court of South Australia, calls on practitioners, professional institutions, employers and interested individuals to express their opinions on AI in the legal profession through the investigation and consultation process.
This marks a step towards Supreme Court justice, in which South Australian litigants can leverage the benefits of AI and restrict use when necessary.
Other jurisdictions have taken a variety of approaches to regulating the use of AI in courts.
New South Wales has taken a less acceptable approach, prohibiting the use of AI to draft affidavits, witness statements and expert reports. Meanwhile, Victoria takes a kinder approach, asking litigators to pay attention to the shortcomings of AI without allowing it to be used.
“AI has quite a wide range of potential uses in court,” said Dr. Mark Giancaspro, a senior lecturer at Adelaide Law School and a special advisor to DW Fox Tucker, a commercial law firm in South Australia.
Dr. Giancaspolo said indaily AI “may improve efficiency within processes such as court transcription, witness dialogue, and case management.”
Additionally, Dr. Giancaspro said AI has opportunities as part of case preparation that can save litigators costs.
“For example, algorithms are much more capable than humans to scan large amounts of information more quickly,” said Dr. Giancaspro.
“But like any kind of powerful tool, if you use it irresponsibly or overseen, it will do more harm than good.”
Common AI-inducing issues include both unrepresented parties and lawyers who rely on non-existent or “hastised” cases and citations, delaying the court's process as judges attempt to verify the source.
AI has been increasingly used in Australia in recent years by self-expression lawsuits. While widespread adoption of AI has increased access to justice and democratization of legal services, Dr. Giancaspro said it “works in both ways.”
Dr. Giancaspro said that while intake into AI programs will allow more people to access forms of legal services, unrepresented parties should be aware of the risks of using AI in court.
In April, a self-expression lawsuit in an employment dispute in the New York State Court of Appeals attempted to use an artificially generated video of a lawyer debating a man for him. The judge closed the video because he was not informed that the male lawyer would be artificially generated. Clips from the court footage are gaining attention online.
Dr. Giancaspro said virtual self-expression is an interesting theory. “But it can lead to catastrophic errors, let alone not trusting robots to represent litigators.”
“For self-representative litigators who are on trial for murder and faced with life in prison, delegating their authority to AI is insane because if that's wrong, they've lost all their freedom,” he said.
“If there is a multi-billion dollar company with access to the most advanced legal AIS, if the average Joe or Jane on the streets sued is sued and you are able to access the free version of chatGPT, the quality disparity is clear in terms of what AI generates: incomplete democratization.
“Yes, it's convenient, it's exciting, it's important, but the end of the day, it's not human. It's designed to help. It's probably the number one basis for regulating AI.”
By advising, the Supreme Court asks how state courts will respond to the use of AI in litigation, and if so, who would like to file. [email protected] By June 30th, 2025.
