Artificial intelligence (AI) is increasingly embedded in civil litigation workflows, moving beyond document retrieval toward predictive analytics that shape strategic decision-making. In personal injury litigation, predictive tools are now used to estimate claim value, forecast litigation duration, assess settlement likelihood, and identify patterns in judicial outcomes. While these technologies promise efficiency and consistency, their use raises significant ethical, evidentiary, and governance concerns, particularly within Ontarioโs regulatory and professional framework. This article examines how predictive AI is being deployed in personal injury litigation and analyzes the associated ethical risks for Ontario practitioners.ย
Predictive Analytics in Litigation Practiceย
Predictive analytics is the computational technique that analyzes historical data to generate probabilistic forecasts of future events. In legal contexts, such tools may predict case outcomes, damage ranges, or the likelihood of success on particular motions. Scholars have observed that legal analytics platforms increasingly draw on large corpora of judicial decisions, settlement data,ย and docket information to support litigation strategy (Katz, Bommarito, & Blackman, 2017).ย
Empirical research suggests that machine learning models can achieve high accuracy in predicting outcomes. For example, a study of the European Court of Human Rights demonstrated that algorithms could predict judicial outcomes with approximately 79% accuracy based on textual features alone (Aletras et al., 2016). While Canadian-specific large-scale studies remain limited,ย similar techniques underlie the commercial tools insurers and law firms use to evaluate risk and reserve exposure.ย
In personal injury litigation, predictive tools are particularly attractive because disputes often involve recurring fact patterns: motor vehicle collisions, slip-and-fall claims, chronic pain diagnoses,ย and contested functional limitations. By aggregating past cases, AI systems can generate suggested evaluation bands or flag cases that statistically deviate from historical norms. For insurers, such tools support early reserve setting and settlement strategies. For plaintiff counsel, analytics may assist in case screening, resource allocation, and negotiation positioning.ย
However, predictive outputs do not constitute legal determinations. They are statistical inferences shaped by the quality and representativeness of training data, the assumptions embedded in model design, and the socio-legal context in which prior cases were resolved.ย
Evidentiary and Methodological Constraintsย
Ontario courts remain grounded in traditional evidentiary principles. If predictive analytics inform expert opinions or are referenced substantively, admissibility concerns arise. Canadian courts apply a gatekeeping framework for expert evidence emphasizing relevance, necessity, and reliability, originating in R. v. Mohan (1994) and refined in White Burgess Langille Inman v. Abbott andย Haliburton Co. (2015). Reliability requires transparency regarding methodology and the ability to meaningfully challenge the basis of an opinion.
Many AI systems function as โblack boxes,โ providing outputs without interpretable reasoning. This opacity complicates cross-examination and undermines the courtโs ability to assess reliability. Without disclosure of training data sources, error rates, and validation methods, predictive outputs risk being characterized as speculative rather than probative.ย
Moreover, the Canada Evidence Act requires parties to establish the authenticity of electronic evidence and the integrity of the systems used to generate it (Canada Evidence Act, ss.ย 31.1โ31.2). Where AI tools transform or analyze underlying data, litigants may need to demonstrate that the software operates reliably and consistently, an evidentiary burden that grows as systems become more complex.ย
Ethical Risks and Professional Responsibilityย
The use of predictive AI also raises professional responsibility issues. The Law Society ofย Ontarioโs Rules of Professional Conduct provide that maintaining competence includes understanding relevant technology, its benefits, and its risks, as well as protecting client confidentiality (Law Society of Ontario, 2022). Lawyers who rely uncritically on predictive tools risk breaching their duty of competence if they cannot explain or evaluate the basis of AI-generated recommendations.ย
Bias represents a central ethical concern. Machine learning systems trained on historical data may reproduce systemic inequities present in prior decisions, including disparities related to disability, socioeconomic status, or race. Scholars have cautioned that algorithmic systems can entrench existing power imbalances under the guise of objectivity (Pasquale, 2015). In personal injury litigation, this could manifest as systematically lower predicted values for certain categories of claimants, subtly shaping settlement practices.ย
Confidentiality and privacy present additional risks. Personal injury files contain extensive health information and sensitive personal data. Canadian privacy guidance for lawyers emphasizes safeguarding personal information and exercising caution when using third-party service providersย (Office of the Privacy Commissioner of Canada, 2011). Cloud-based analytics platforms may store data outside Canada, raising further compliance considerations.ย
Finally, overreliance on predictive tools may distort professional judgment. Litigation is inherently contextual, and no model can capture the full nuance of witness credibility, evolving medical evidence, or judicial discretion. Ethical lawyering requires that AI remain a decision-support mechanism rather than a decision-maker.ย
Toward Responsible Deploymentย
Responsible use of predictive AI in Ontario personal injury litigation requires governance frameworks emphasizing transparency, human oversight, and proportionality. Firms should document when and how predictive tools are used, validate outputs against independent assessments, and train lawyers to critically interrogate results, where predictive analytics influence expert evidence, disclosure obligations and methodological explanations should be anticipated.
At a broader level, courts and regulators may eventually need to articulate standards for AI-influenced evidence, akin to existing principles governing novel scientific techniques. Until then,ย cautious integration remains essential.ย
Where are we heading?ย
Predictive AI tools offer meaningful potential to enhance efficiency and strategic insight in personal injury litigation. Yet their deployment carries ethical, evidentiary, and professional risks that cannot be ignored. In Ontario, existing legal frameworks already provide the conceptual tools to manage these challenges: reliability-focused admissibility standards, competence-based professional duties, and robust privacy obligations. The central task for practitioners is not to embrace or reject predictive AI wholesale, but to integrate it thoughtfully, ensuring that human judgment, transparency, and fairness remain at the core of civil justice.ย
—–
About The Authorย
Kanon Clifford is a personal injury litigator at Bergeron Clifford LLP, a top-ten Canadian personal injury law firm based in Ontario. In his spare time, he is completing a Doctor ofย Business Administration (DBA) degree, with his research focusing on the intersections of law,ย technology, and business.ย
References
Aletras, N., Tsarapatsanis, D., Preoลฃiuc-Pietro, D., & Lampos, V. (2016). Predicting judicial decisions of the European Court of Human Rights: A natural language processing perspective. PeerJย Computer Science, 2, e93. https://doi.org/10.7717/peerj-cs.93ย
Canada Evidence Act, RSC 1985, c C-5, ss 31.1โ31.2.ย
Katz, D. M., Bommarito, M. J., & Blackman, J. (2017). A general approach for predicting the behaviour of the Supreme Court of the United States. PLoS ONE, 12(4), e0174698.ย ย
https://doi.org/10.1371/journal.pone.0174698ย
Law Society of Ontario. (2022). Rules of Professional Conduct โ Chapter 3: Relationship to Clientsย (Commentary). https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct/chapter-3ย
Office of the Privacy Commissioner of Canada. (2011). PIPEDA and your practice: A privacy handbook for lawyers. https://www.priv.gc.ca/media/2012/gd_phl_201106_e.pdfย
Pasquale, F. (2015). The black box society: The secret algorithms that control money and information. Harvard University Press.ย
- v. Mohan, [1994] 2 SCR 9.ย
White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.
