Keep generative-tool output out of a federal-court affidavit
Key facts
- Human involvement
- RedLawyer-led
- How AI is used
- List the facts the lawyer says the witness can attest, each with the document and page the lawyer marked. Do not write an affidavit, a declaration, or any sentence for the witness to sign.
- What the lawyer must review
- An affidavit or a declaration filed in federal court is the witness's statement. 28 U.S.C. 1746 provides that where a matter may be supported by a sworn declaration, verification, certificate, statement, oath, or affidavit in writing, other than a deposition, an oath of office, or an oath required to be taken before a specified official other than a notary public, it may be supported by an unsworn declaration subscribed as true under penalty of perjury and dated, in substantially the form that section sets out. ABA Formal Opinion 512 (29 July 2024) leaves the lawyer responsible for what a generative tool produces and for what is put before a tribunal. The witness and the lawyer write anything that is signed. The tool writes none of it.
- Written for / version
- United States versionUS
Who does what
| Role | What they do |
|---|---|
| Assistance | Supporting preparation only. Limit any support to organising, indexing or comparing the source material. The tool writes nothing that goes into the document. The tool writes nothing into the document. Substantive advice, judgement and any restricted content remain with the responsible human. |
| Lawyer | Perform the substantive analysis and decisions. Independently check any permitted supporting work and approve the exact output for its intended use. |
Checklist
- Confirm each factual assertion with the witness and original record. Preserve the witness’s own knowledge and words, and check the court’s rules for this document.
- Check the current court or regulator requirements, prescribed form and attachments for the intended document and filing.
- Confirm the output against the client’s instructions and the complete relevant source material, including omissions or contradictions.
- Resolve exceptions and record the responsible lawyer’s approval of the exact output and intended use.