August 26, 2026

By: Frank H. Stoy

The proliferation of artificial intelligence technologies in all walks of life, including the legal profession, is hardly news. At this point, you might even find the topic exhausting. That said, the use of AI—and its real-world implications in the courtroom—must not be ignored. Just last week, we received yet another stark reminder that the use of AI in litigation must be approached with caution. This time, the issue involved an expert witness.

In connection with a bellwether trial related to ongoing mass tort litigation stemming from an explosion at a Texas manufacturing plant (In re Watson Grinding Explosion, No. 2020-05505-A, Dist. Ct., Harris Co., Tex.), an expert was subjected to discovery regarding his use of AI in preparing his expert report. This discovery included the production of ChatGPT prompts that the expert had used to help generate his report, including his request that AI prepare a draft report reaching a specific conclusion. Needless to say, this topic was the subject of vigorous cross examination calling into question both the expert’s methodology and his ultimate conclusions. There can be little doubt that this impacted the expert’s credibility in the eyes of the jury.

Many of the recent developments involving the use of AI in litigation have focused on lawyers submitting briefs with hallucinated case citations, or potential waivers of privilege and attorney work product protection through a lawyer’s use of open-source AI. But as this most recent episode illustrates, lawyers who work with third-party litigation consultants must also be mindful of how those professionals are using the technology. Indeed, careful consideration of whether their usage might be discoverable is warranted.

Accordingly, at the outset of a retention, counsel should provide clear guidance as to how, if at all, AI tools may be used. Any use of AI should be restricted to an enterprise-controlled or closed system in order to guard against the risk of court-ordered disclosure. Lawyers should also stay engaged throughout the consulting process to ensure that these guidelines are being followed. A little vigilance can go a long way to preventing adverse outcomes and ensuring that we maintain the integrity of the judicial process.

Perhaps AI will someday be called to serve as an expert at trial. But until that day comes, the human experts need to do the critical thinking in close coordination with counsel.