Tweaking Your Expert Engagement Agreements for the Age of Gen AI

It isn’t just lawyers and judges who’ve been caught with their pants down due to improper reliance on Gen AI tools.  This Kilpatrick memo says that courts have begun excluding expert testimony and striking expert declarations in cases where the experts in question have used Gen AI without adequate verification or disclosure. The memo offers a variety of suggested “best practices” for AI-related provisions in expert engagement agreements, including the following:

– Require written disclosure of gen AI use. The engagement agreement should require the expert to disclose in writing, before finalizing any work product, whether and to what extent the expert used a gen AI tool. The disclosure should identify the specific tool and version, the tasks for which it was used, and the steps taken to verify its outputs.

–  Require independent verification of every gen AI output. Experts must independently verify all gen AI-generated content—including citations, calculations, and factual assertions—through reliable, independent means such as primary sources, authoritative databases, or the expert’s own calculations. Verification using the same gen AI tool is insufficient.

– Preserve the expert’s independent methodology and judgment.Gen AI tools must supplement—not replace—the expert’s independent professional judgment. The expert must author all opinions and conclusions and be able to explain the methodology without relying on the gen AI tool’s output.

– Prohibit inputting confidential or privileged material into public gen AI tools.The agreement should prohibit the expert from submitting any confidential information, privileged materials, attorney work product, or information subject to a protective order into any gen AI tool unless the tool is a closed system that meets specified contractual and technical safeguards and the use is otherwise permitted by the governing protective order.

Other recommended best practices include building compliance with local rules and standing orders into the engagement agreement, protecting privilege through due diligence and operational safeguards, requiring the expert to keep records and a full audit trail, specifying why the tool is being used, the information that will be input, and the tool’s benefits, risks and limitations, and attaching meaningful consequences for a breach of the expert’s obligations.

The memo also includes suggested language addressing these best practices for inclusion in engagement agreements.