From Paper Files to AI Precedents: The Evolving Landscape of Civil Claims

Back in 1986, when I was an Articled Clerk, I visited a factory in the potteries with instructions from the Partner defending a civil claim to take a detailed witness statement. The reception area had some display cabinets with lovely pottery and some glossy brochures. Going behind the scenes, there were people bustling everywhere and product stacked on trolleys and shelves. My witness produced a thin file with a couple of pieces of paper in it and I made some notes regarding his version of events.  Back at the office the witness statement was typed up (on a typewriter) and it was posted out to the witness for checking, signature and return.

Gradually over the intervening years, although the factories I visited still had machinery and product, there were less people as computers were introduced to control production processes.  The claims became more about how the computer software and hardware failed to live up to the promises made and the impact on the business.  I still took away the thin file with a couple of pieces of paper in it and my notes.

Today I am paperless and my clients are too.  I don’t get out to be nosy behind the scenes – I have Teams.  However, civil claims still run in broadly the same way as back in 1986.  The usual steps involve setting out the claim in a Claim Form and Particulars of Claim and the Defendant setting out its response in a Defence.  Both are expected to disclose relevant documents to the other and there is an exchange of witness statements.  The case is then ultimately decided by the Judge at Trial.

It is the modern form of disclosing relevant documents which causes particular difficulty when the documents are in fact just emails, PDFs or other electronic files.  The Court rules now define documents to include electronic documents and the Judges have become increasingly sophisticated in considering the parameters of the searches required and analysis of the documents disclosed.  There is a whole new industry grown up to provide expert assistance in dealing with electronic disclosure.  In recent case a party conducted its own electronic disclosure searches without the requisite expertise and when they were found to be inadequate the Trial had to be adjourned.  They had to pay the other party’s costs of £0.5m.

At Trial, the Court is directed to the relevant law by the advocate presenting the case.  Previously decided cases provide the precedents which the Court relies on.  There have been a few instances reported where the Court has been directed to legal precedent found by AI but so far these have been noteworthy for being wrong.  There have been references to US case law and completely fabricated cases – hallucinations.

Although there is much interest in how AI and automation will impact my role and my clients, it remains uncertain as to what will stay the same and what will need to change to litigate in the future.