Artificial Intelligence and the Role of Expert Witnesses in AI Litigation

Artificial intelligence (AI) and machine learning have changed the ways in which computers, users, and the environment interact. By doing so, AI technology has opened up a vast new horizon of opportunities to innovate and change nearly every field. It has also opened up new questions for litigation.

Here, we take a look at artificial intelligence, its role in civil claims, and the expert witnesses whose assistance may be required in order to understand the complexities of the technology in the context of litigation.

What is Artificial Intelligence?

Artificial intelligence (AI) is a broad category, including any software or device that can perceive its environment and adapt its actions to maximize its chances of reaching its goals. The term “artificial intelligence” is commonly used as shorthand for a machine doing things we normally associate with human cognition, like learning and solving problems.

Although the study of artificial intelligence was formalized as an academic discipline in 1956, the types of technology typically considered “AI” tend to change over time, often in response to what humans perceive as novel or routine. For instance, although optical character recognition – the technology that allows us to scan printed documents and render them as editable ones on-screen – involves a machine adapting to environmental inputs (the characters), it is often not included on lists of AI technologies today.

Commonly-encountered forms of artificial intelligence today include search and recommendation systems from companies like Google, Amazon, and Netflix. They also include medical imaging systems, which classify different types of tissue in scans based on a large database of previously-analyzed images.

Currently, the goals of AI research tend to include machines’ ability to reason, plan, learn, perceive language, and describe or explain what they have learned.

Major Issues in Litigation Involving Artificial Intelligence

Over the past few decades, everything from motor vehicles to household appliances has become more complex and, in many cases, artificial intelligence only adds to that complexity. For end-users of AI products, determining what went wrong and whose negligence was responsible can be bafflingly complex.

One of the biggest challenges in AI cases is that artificial intelligence systems are not “programmed” in a conventional sense. Traditional computer programming involves giving an explicit and detailed set of instructions to a machine, which carries out those instructions and displays the results. AI systems, conversely, are designed to adapt their instructions as needed in order to suit changing input or environmental factors.

Understanding how the system adapts is often crucial for fact-finders, but it can also be difficult to explain in terms both simple and clear enough for non-experts to understand. Here, an expert witness who not only understands AI but who can also explain it lucidly may play an essential role in the case.

Experts and Their Role in AI Cases

Artificial intelligence can be achieved in a number of ways, using various sorts of computer tools, methods, and modeling. As a result, choosing the right expert in an AI-related case will depend heavily on the particular facts of the case and the most likely explanations of what went wrong and why.

Experts retained in AI cases typically come from fields like computer or mechanical engineering, information systems, data analysis, robotics, and programming. They may specialize in questions surrounding hardware, software, 3D-printing, biomechanics, Bayesian logic, e-commerce, or other disciplines.

Future exploration of the legal status of artificially intelligent systems may further complicate these cases – and demand a greater need for experts. For instance, the European Commission recently considered the question of whether to give legal status to certain robots. One of the issues weighed in the decision involved legal liability: if an AI-based robot or system, acting autonomously, injures a person, who is liable?

The European Commission declined to give robots legal personhood, but did consider giving them a legal-entity status similar to that of corporations. As the technology advances, however, it’s not difficult to imagine a near future in which the help of an expert in philosophy or ethics would also be necessary to determine questions of fault in an AI case.

And while artificial intelligence can make certain cases more complex, it can make litigation as a profession easier as well. Research into the use of AI for analyzing patent claims, performing document review, and detecting certain types of fraud is ongoing, and it may yield benefits for attorneys and clients in the future.