Stacked3Here is my recent Daily Record column. My past Daily Record articles can be accessed here.

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New York Surrogates Court on Admissibility of AI Evidence 

The last few decades have seen rapid technological advances. For busy lawyers, keeping up with the pace of change has been a challenging endeavor. For many, the inclination has been to ignore the latest advancements in favor of maintaining the status quo.

Unfortunately, that approach has proven ineffective. 21st-century technologies have infiltrated all aspects of our lives, from how we communicate, make purchases, and obtain information to how we conduct business. Turning a blind eye is no longer an option. Instead, it is necessary to prioritize learning about emerging technologies, including their potential implications for your law practice, your clients’ cases, and your law license. 

This enlightened approach is essential as we enter the artificial intelligence (AI) era. Like the technologies that preceded it, AI will inevitably impact many aspects of your law practice, even if you choose not to incorporate it into your firm’s daily workflows.

For example, just as social media evidence has altered the course of trials, so too has artificial intelligence. A case in point is Saratoga County Surrogate’s Court Judge Schopf’s October 10th Court Order in Matter of Weber (2024 NY Slip Op 24258). One issue under consideration in this case was the use of generative AI-produced evidence at a hearing.

In Matter of Weber, the Petitioner filed a Petition for Judicial Settlement of the Interim Account of the Trustee. The Objectant responded by filing objections to the Trust Account alleging, in relevant part, that the Petitioner had breached her fiduciary duty as Trustee. A hearing was held to address the Objectant’s allegations. 

This opinion followed. In it, the Court considered whether the Objectant had overcome the prima facie accuracy of the Interim Account and proved his objections. One issue addressed was whether and under what circumstances AI-generated output is admissible into evidence.

The hearing testimony revealed that the Objectant’s expert witness, Charles Ranson, used Microsoft’s generative AI tool, Copilot, to cross-check his damage calculations. The evidence showed that Ranson could not provide the input or prompt used, nor could he advise regarding the sources relied upon and the process used by the chatbot to create the output provided. 

When determining the admissibility of Copilot’s responses, Judge Schopf explained that the “mere fact that artificial intelligence has played a role, which continues to expand in our everyday lives, does not make the results generated by artificial intelligence admissible in Court.”

The Court concluded that the reliability of AI-generated responses must be established before they are admitted into evidence. The Court explained that “due to the nature of the rapid evolution of artificial intelligence and its inherent reliability issues that prior to evidence being introduced which has been generated by an artificial intelligence product or system, counsel has an affirmative duty to disclose the use of artificial intelligence and the evidence sought to be admitted should properly be subject to a Frye hearing prior to its admission, the scope of which should be determined by the Court, either in a pre-trial hearing or at the time the evidence is offered.”

According to Judge Schopf, the Objectant failed to meet that burden: “In the instant case, the record is devoid of any evidence as to the reliability of Microsoft Copilot in general, let alone as it relates to how it was applied here. Without more, the Court cannot blindly accept as accurate, calculations which are performed by artificial intelligence.”This decision evinces the growing need to carefully scrutinize AI-generated evidence in legal proceedings. Courts are unlikely to admit this type of evidence at this early stage unless its reliability is established beforehand. As this technology becomes commonplace, these standards may evolve and become more elastic. Only time will tell. 

In the interim, take steps to proactively learn about AI tools so that you can advocate for or challenge their use in court effectively. By staying informed, you will be well-positioned to meet both the opportunities and challenges posed by AI-driven evidence. There’s no better time than now to get up to speed. Start learning about generative AI today to ensure that you are prepared for the future of law.

Nicole Black is a Rochester, New York attorney, author, journalist, and Principal Legal Insight Strategist at MyCase, CASEpeer, Docketwise, and LawPay, practice management and payment processing tools for lawyers (AffiniPay companies). She is the nationally-recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media for Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson Reuters treatise. She writes regular columns for Above the Law, ABA Journal, and The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law and emerging technologies. She is an ABA Legal Rebel, and is listed on the Fastcase 50 and ABA LTRC Women in Legal Tech. She can be contacted at niki.black@mycase.com.