By Bill Hartzer · Published
An engagement satisfies this standard when a competent examiner in the same field, working only from the primary sources, with no access to any artificial intelligence system, could reproduce the expert's result.
Definition. In this standard, system means any artificial intelligence system that generates content, analysis, summaries, or conclusions in response to a request — whether the expert accesses it directly or it operates inside other software the expert uses.
- Sequence. The expert reaches each conclusion from the evidence before consulting any system about the matter. No system is asked what conclusion the evidence supports, and no system is asked to support a conclusion specified in advance.
- Non-delegation. The opinion, the basis for it, its limitations, and the decision to render it are the expert's alone. They are not formed, drafted, or refined with the assistance of a system.
- Independent authority. Nothing enters the report on the authority of a system. Every citation, figure, date, quotation, specification, and characterization of a record is confirmed against a source that exists independently of the system, and the expert can identify that source.
- Checkability before adoption. Before adopting any output, the expert identifies the specific thing against which it would be checked. Where no such thing can be identified, the output is not adopted.
- Reproducible analysis. Any analysis producing a number, a count, a sequence, or a selection is performed by a method that returns identical results when repeated, and the method — not merely its result — is preserved.
- Custody and confidentiality. Before any material is submitted to a system, the expert confirms that doing so is consistent with the protective order, the engagement terms, and any applicable confidentiality obligation, and establishes what leaves the expert's environment and who retains it.
- Contemporaneous record. The expert maintains, as the work proceeds, a record of each system used, the purpose for which it was used, and what was done to verify its output. The record is made at the time and is capable of being produced.
- Disclosure. The expert states at retention that the use of systems will be disclosed and the record produced on request, and does so when asked by retaining counsel, by an opposing party through proper process, or by the tribunal.
Copying this text
Reproduce the eight clauses verbatim and in whole, with the line below. The terms, what happens when a firm adopts this across a practice, and the two objections that come up are set out in full on adopting the Standard.
Attribution line: The Expert Record Standard v1.0, from The Expert Record by Bill Hartzer (Hartzer Press), theexpertrecord.com/standard/
How to read the eight clauses
Clauses 3, 4, and 5 are procedural. They describe things done at a desk, on a schedule, that could be taught to an associate and audited by anyone. They take time and require no judgment beyond what a competent professional already exercises.
Clauses 6, 7, and 8 are administrative. They are settled once — in an engagement template, a working folder, and a habit — and then cost almost nothing per matter. Clause 7 is the only one that must be built as the work proceeds rather than assembled afterward.
Clauses 1 and 2 are the hard ones, and they are hard for a reason that has nothing to do with technology. They ask for the most demanding part of the work — forming the opinion — in the one condition where assistance is most tempting.
The order is not arbitrary. Sequence comes first because everything else is remediable and sequence is not.
Questions
May I use this in an engagement letter?
Yes. The Standard may be reproduced verbatim, in whole, in engagement letters, retention agreements, and internal policies, with attribution to its source. It may not be reproduced in altered form under this name — a standard that can be edited and still called the same thing stops meaning anything.
Why is it written in the third person when the book speaks to the reader directly?
Because a standard has to be adoptable by someone other than its author. “You reach each conclusion from the evidence” cannot be pasted into a retention agreement. “The expert reaches each conclusion from the evidence” can.
Does this apply outside litigation?
The clauses were written for expert engagements, and they translate without modification to any professional work whose author signs it. The final chapter of the book makes that argument at length.
Will this text change?
The clause text is fixed at version 1.0. If a future version is issued it will carry a new version number and this page will carry both, so an engagement letter citing 1.0 keeps meaning what it meant when it was signed.