By Bill Hartzer · Published · How this site is researched
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.
The work that cannot be handed off
An expert may state opinions no other witness is allowed to state, and that permission rests on the opinion being the expert's own. The findings, the reasoning that connects evidence to conclusion, the limitations, and the decision to render the opinion at all are what the book calls red work: tasks for which the checkability question returns nothing, because the thing being produced is the very judgment the expert was retained to supply. Verifying a borrowed conclusion more carefully does not make it the expert's conclusion.
The book's reading of the reported decisions explains why this clause tends to decide outcomes. A defective citation is a flaw in a report, and tribunals have often left it to cross-examination. An analysis generated by a machine means there is no expert opinion to admit, because the witness did not form it.
How tribunals have treated delegated opinions
In In re Celsius Network LLC (Faraj report), a valuation report of 172 pages was generated within 72 hours by an AI system at the expert's instruction. The bankruptcy court excluded the report under Rule 702, noting among other reasons that no standards controlled the system's operation and that the report cited almost no underlying facts or data. It admitted the expert's live testimony.
The Landgericht Darmstadt expert fee decision set a court-appointed medical expert's fee at zero euros after concluding that the report was produced in substantial part with AI. The decision rested on three grounds, not one: the expert had not confirmed that he prepared the report himself, the claimant had never been examined, and the hours billed were disproportionate.
In Butler and National Disability Insurance Agency, an Australian tribunal took no issue with AI used to put into writing observations a practitioner had made personally, but required the practitioner to remain responsible and accountable for the content. Where an author could not confirm who had inserted the phrase the funding question turned on, the reports received reduced weight. No sanction followed.
What the clause leaves open
The clause covers the opinion, its basis, its limitations and the decision to give it. It does not reach every sentence of a report. The book treats the background or tutorial section (the passage explaining to a lay reader how a technology or process works) as the one place drafting help is defensible, because the expert can judge every line from personal expertise and nothing case-specific belongs there. That section is still read line by line and rewritten in the expert's own voice. Transcribing observations the expert personally made also falls outside the clause, which is the distinction Butler drew. The book's own practice is to keep analysis sections entirely free of assistance, so the answer at deposition needs no explanation.
Making authorship demonstrable
Write the analysis and opinion sections without assistance of any kind, and record that fact in the log on the day it happens. Bring associates, research staff, translators and subcontracted specialists under the same protocol, since everyone who touches the work is inside the expert's signature. Keep a record that can answer the question Butler turned on: who wrote this sentence? Under Clause 7 that question takes seconds. Without a record, as the Darmstadt court's reasoning from repeated wording and sentence structure shows, a tribunal will answer it from the text alone. The pre-use checklist places the final confirmation, that no conclusion traces to a tool, at the point of signing.
The rules it sits beside
The Standard does not restate any court rule and does not depend on one. In United States federal courts, Federal Rule of Evidence 702 requires that the testimony be the product of the witness's own reliable application of method, which is the ground on which delegated opinions have been challenged. Other systems ask the same questions in their own terms, and the matters below include tribunals in several of them.
Matters in the record that engaged Clause 2
32 of the 103 matters in AI in the Courtroom engaged this clause. Each is listed with the sentence from its entry that says how. The mapping describes conduct, not blame, and each entry sets out the facts it rests on.
Expert witnesses and AI
- Avergil v. Yaakov “Clause 2, non-delegation, bears on the court's description of the defects as the product of uncontrolled AI use, a characterization drawn from the pattern of errors rather than from any account by the expert.”
- Villanueva v. Las Vegas Metropolitan Police Department “Clause 2, non-delegation, bears on the copied passages: the report's analysis has to be the expert's own, whatever the court ultimately says about whether the draft output is discoverable.”
- Watson Grinding explosion trial (3M expert) “The reported prompts engage Clause 1, sequence, and Clause 2, non-delegation.”
- Keratoconus Entitlement Review, 2026 CanLII 107034 “Clause 2, non-delegation, is engaged by the panel's finding that the substance of the opinion, not only its references, appeared to be machine-generated.”
- Cour d'appel de Rouen, RG 25/01677 (Copilot analysis) “Clause 2, non-delegation, holds that the opinion and its basis belong to the expert.”
- Landgericht Darmstadt expert fee decision “Clause 2, non-delegation, is the whole of it.”
- Butler and National Disability Insurance Agency “Clause 2, non-delegation, is what Butler engages most directly.”
- Ferlito v. Harbor Freight Tools USA “Clause 2, non-delegation, was satisfied on the same facts, since the conclusion was the expert's own.”
- In re Celsius Network LLC (Faraj report) “The matter engaged Clause 2, non-delegation.”
Fabricated citations and facts in filings
- Kid International v. City National Bank of Florida “Clause 2, non-delegation, applies to the research that was handed to the client and to software.”
- State v. Sandoval (Aarons sanction) “Clause 2 (non-delegation) is also engaged.”
AI-generated and altered evidence
- TRAX International Corp. v. United States “Clause 2, non-delegation, applies to evaluation text the court found nearly identical to AI output.”
Judges, courts and AI
- Vijay Ghanshyam Gadiya v. Union of India “Clause 2, non-delegation, is engaged by the Court's warning that assistance cannot substitute for adjudication.”
- Phillips v. Parlade (judicial immunity and AI) “Clause 2 of the Standard, non-delegation, states the obligation directly: the opinion, its basis, its limitations and the decision to render it are the expert's alone.”
- EPFO v. Principal Commissioner of Income Tax “Clause 2 of the Standard, non-delegation, is the clause the officer's own explanation engages.”
- Henry County Schools v. Grant (party-drafted order) “It also engaged Clause 2, non-delegation, from the receiving end: a judge who signs a submitted order is exercising judicial judgment, and the errors survived because nobody between the draft and the signature performed the check.”
- H.C. v. Contreras “Clause 2, non-delegation, applies to the ruling itself, which the appellate court found was a reproduction of one party's brief.”
- Payne v. State “The Supreme Court's remedy speaks to Clause 2, non-delegation: it required that the court's reasoning on remand be the court's own work and not text drafted by a party.”
- ARIHQ v. Santé Québec, 2026 QCCS 1360 “Clause 2 of the Standard, non-delegation, is the clause the ARIHQ reasoning tracks most closely.”
- In re Domestic Partnership of Torres Campos and Munoz “Clause 2, non-delegation, frames the same event from the court's side, and Clause 7, contemporaneous record, explains why counsel could not say where the added Twigg details came from.”
- Senate Judiciary inquiry into judges' AI use “It addresses non-delegation of decisions (Clause 2), independent verification of output (Clause 3) and consideration of disclosure (Clause 8).”
- Jackson Federation of Teachers v. Fitch (Judge Wingate) “That engaged Clause 2 of the Expert Record Standard, non-delegation, and Clause 3, independent authority.”
- Shahid v. Esaam “It also engaged Clause 2, non-delegation.”
- Snell v. United Specialty Insurance (Judge Newsom) “The use was offered as one input for readers to weigh, which is consistent with Clause 2, non-delegation.”
AI inside the courtroom
- Jones v. Delta Air Lines (ChatGPT at a deposition) “The conduct engaged Clause 2 of the Standard, non-delegation.”
- Dewald AI avatar argument (N.Y. App. Div., 1st Dept.) “It also bears on non-delegation, Clause 2.”
- DoNotPay "robot lawyer" and FTC order “That is the situation non-delegation, Clause 2, addresses: the argument would have been composed by the system in real time, and neither the defendant nor anyone else could have checked it before it was spoken, contrary to Clause 4.”
Rules, orders and guidance
- California SB 574 (Statutes of 2026, chapter 858) “The prohibition on delegating the practice of law to generative AI corresponds to Clause 2 of the Standard, non-delegation.”
- Draft Regulations for Use of AI in Courts, 2026 “The prohibition on outcomes reached by AI alone corresponds to Clause 2, non-delegation.”
- New York courts: interim AI policy and Part 161 “The ban on tools performing decisionmaking tasks corresponds to Clause 2, non-delegation, applied to the judge.”
- Civil Justice Council consultation on AI in court documents “The proposed witness-statement declaration engages Clause 2, non-delegation, in a different form.”
- AI Judicial Guidance, England and Wales (October 2025) “Personal responsibility for material issued in the judge's name corresponds to Clause 2, non-delegation.”
Clause 1: Sequence · All eight clauses · Clause 3: Independent authority