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In a keynote address at the Expert Witness Symposium 2026 held at the Hilton Sydney, Justice Michael Lee questioned whether the traditional expert witness will survive the next decade.
As escalating litigation costs and AI transform the analysis of particular knowledge, Justice Michael Lee has called into question the core assumptions that support expert evidence.
Blending a mix of judicial experience, humour, and a vision for the year 2036, he posed whether the system needs more than incremental reform.
His speech enticed lawyers, judges and experts to rethink the role of human expertise in modern civil litigation.
Justice Lee argued that the rising cost of civil litigation is undermining justice accessibility, especially for ordinary individuals and small businesses, with expert evidence contributing significantly to the expense.
He depicted that procedural steps can create an unnecessarily costly cycle, pushing courts to question if traditional methods of obtaining expert assistance deliver adequate value.
“A civil justice system in which an ordinary middle-class person, with a good claim and something important at stake, cannot sensibly afford to vindicate a legal right is, to that extent, a system which is failing,” Justice Lee said.
Justice Lee further explained that issues with expert evidence have been apparent for decades.
Although courts have introduced procedures to improve independence and narrow disagreements, he questioned why these issues are often identified only after expensive reports have already been prepared.
Referring to the Roundup class action, Justice Lee explained how he experimented with alternative procedures to make complex scientific evidence more independent and efficient.
Despite these reforms, the process remained costly, prompting Justice Lee to question whether procedural amendments are sufficient or whether the role of the expert witness should be rethought.
“When one has deployed almost every available procedural means of improving expert evidence, and still encounters cases in which the process is disproportionately expensive or ultimately illuminates relatively little, one begins to wonder whether the next step should be another refinement of the same process or whether we should ask a more basic question,” Justice Lee said.
Justice Lee looked ahead into the future, whereby AI will handle much of the technical analysis, and experts act as independent technical advisers who identify key issues, test assumptions, and scrutinise the results.
Rather than replacing human expertise, AI would shift the expert’s role towards critical evaluation and professional judgement, with fewer expensive reports and greater focus on what genuinely matters.
“Although expert reports depend upon assumptions; and we worry that an AI system may state an erroneous proposition with remarkable confidence (although I hesitate to suggest to a room containing lawyers and expert witnesses that confident error is a phenomenon with which the administration of justice has had no previous acquaintance),” Justice Lee said.
“The highest form of expertise is not the possession of information; It is judgment about information.
“I suspect the expert of 2036 may become more important at either end of the litigation process while becoming less prominent in its expensive middle.”
Justice Lee challenged the assumption that AI should be held to a higher standard of reliability than human experts, pointing out that both are capable of bias, flawed reasoning, and confident mistakes.
He observed that “confident error is a phenomenon with which the administration of justice has had no previous acquaintance”. He made the broader point that the choice is not between imperfect AI and perfectly objective human expertise, but rather between “an emerging technology with serious and identifiable deficiencies and an existing human process with manifold deficiencies of its own”.
To conclude his self-proclaimed “provocative” speech, Justice Lee summarised that civil justice must be willing to embrace procedural amendments rather than hold on to traditional practices.
“The forms of procedure with which we grew up are not sacred objects handed down on tablets,” he said.
“Their virtue lies in whether they enable a court to identify the real controversy, afford procedural fairness and determine that controversy according to law at a cost bearing some rational relationship to what is at stake.
“There is something in that paradox for the administration of justice.
“If what we wish to preserve is a system in which independent judges can determine controversies fairly but without excessive cost, then we may occasionally have to be quite radical about changing the machinery by which those controversies are presented to them.”
