Digital Darwinism 2.0: Beyond Cyber-Resilience

Introduction

The digital transformation of the legal profession is not new, but its acceleration is. 2024 will likely see advanced cyber threats that demand not just resilience, but proactive cyber intelligence. Lawyers need to be well-versed in cybersecurity strategies, employing next-generation tech tools to safeguard sensitive information and anticipate potential digital threats.

The digital revolution has and will continue to change many facets of human existence, and the legal profession has not been immune to its sweeping tide. The term “Digital Darwinism” was coined to describe the phenomenon where technology and society evolve faster than an organization can adapt. It will be survival of the fittest in the digital economy. With the unprecedented acceleration of digital transformation, especially in sectors as vital and traditional as the legal profession, comes the inevitable rise of cyber threats. In today's hyper-digitalized environment, cyber-resilience is no longer just an optional attribute for the legal profession; it is an imperative.

 Digital Acceleration in the Legal Profession

Decades ago, legal professionals could hardly fathom the scale at which digital tools would play a role in their work. Fast forward to 2023, and it is impossible to think of legal practice without the integration of technology. From e-discovery tools that streamline the process of finding electronic information for litigation to digital case management systems, the transformation is comprehensive.

Digital tools bring unparalleled efficiencies and conveniences. Virtual meetings, digital contract signings, and AI-driven legal research tools are just the tip of the iceberg. While these advancements empower legal professionals, they also come with challenges, the most pressing of which is cybersecurity.

 The Rise of Advanced Cyber Threats

With digital acceleration comes greater online exposure. Every digital tool or platform utilized becomes a potential gateway for cyber attackers. The data handled by the legal profession is sensitive and valuable. It encompasses personal information, intellectual property, business strategies, and often, undisclosed financial details.

The cyber threats ahead are no longer limited to basic phishing attacks or malware. They have evolved into sophisticated campaigns like Advanced Persistent Threats where attackers infiltrate systems over prolonged periods, often undetected. There is also the danger of insider threats, where the compromise comes from within the organization, and ransomware attacks, where data is held hostage.

 Beyond Resilience: The Call for Proactive Cyber Intelligence

Historically, the focus has been on building resilient systems that can withstand cyberattacks and recover swiftly. But as the digital landscape becomes more intricate and the attacks more advanced, resilience alone is no longer sufficient.

Proactive cyber intelligence is the new frontline defence. It goes beyond reactive measures, focusing on anticipating threats before they materialize. For the legal profession, this means:

1. Continuous Monitoring: Not just of their systems but also the broader digital landscape. Understanding the cyber environment, being aware of new attack vectors, and knowing the attacker's modus operandi is crucial.

2. Educating the Workforce: All the advanced tools in the world cannot protect an organization if the users are the weak link. Regular training sessions on the latest cyber threats and safe online practices are vital.

3. Collaboration: Sharing intelligence with other legal firms and organizations can provide a more comprehensive view of the threat landscape. Collective defence is more effective than isolated efforts.

4. Implementing AI and Machine Learning: These technologies can sift through vast amounts of data to detect anomalies, making them invaluable for detecting potential threats early.

 The Role of Next-Generation Tech Tools

Embracing the latest tech tools is not just about gaining a competitive edge; it is also about safeguarding the very essence of the profession. Here is how next-generation tools can aid:

1. Advanced Encryption: Tools that offer end-to-end encryption ensure that data remains protected during transmission and storage.

2. Multi-factor Authentication (MFA): A simple yet effective tool that can prevent unauthorized access even if passwords are compromised.

3. Behavioural Analytics: By understanding the typical behaviours of system users, these tools can alert administrators to any abnormal activity, potentially halting a cyberattack in its tracks.

4. Decentralized Systems: Blockchain and other decentralized systems can offer enhanced security, ensuring data integrity and preventing unauthorized changes.

 Conclusion

As the saying goes, “Evolve or perish.” The digital transformation of the legal profession offers both opportunities and threats. While the benefits of technological integration are undeniable, the risks are equally potent.

As we progress further into the digital age, the legal sector must not only adapt but anticipate. Proactive cyber intelligence, combined with the right tech tools, ensures that lawyers can focus on their core task – upholding the law – without the looming shadow of cyber threats. In Digital Darwinism 2.0, survival is not just about resilience but foresight and proactive defence.

Eastern perspective on Mediation

Mediation is a form of alternative dispute resolution that has gained widespread popularity in recent years. It involves the intervention of a neutral third party who helps the parties in conflict come to a mutually acceptable solution. Mediation has its roots in ancient Eastern traditions, where the concept of non-adversarial dispute resolution has been in practice for centuries. In this article, we will explore the Eastern perspective on mediation and its influence on contemporary mediation practices.

Eastern philosophy emphasizes the importance of harmonious relationships, and mediation is seen as a way to promote peaceful coexistence. In Eastern cultures, mediation is seen as an essential aspect of community building and social harmony. The goal of mediation is not simply to resolve a conflict but also to restore relationships and promote healing.

In Eastern cultures, the mediator is seen as a neutral and impartial third party who helps the parties to reach a mutually acceptable solution. The mediator's role is to facilitate communication, build trust, and encourage the parties to look for a solution that benefits both sides. The mediator is not there to impose a solution or to take sides but rather to guide the parties in finding their own way forward.

One of the key differences between the Eastern and Western approach to mediation is the emphasis on relationships. In the East, relationships are seen as a fundamental aspect of human life, and mediation is seen as a way to preserve and restore these relationships. In contrast, in the West, mediation is often seen as a means to achieve a legal settlement or resolution of a dispute.

Another difference between Eastern and Western mediation is the role of emotion. In Eastern cultures, emotions are seen as an important part of the negotiation process. Mediators are trained to recognize and acknowledge the emotions of the parties involved and to help them to manage these emotions in a constructive way. In contrast, in Western mediation, emotions are often downplayed or ignored, and the focus is on the facts and the legal issues.

In Eastern cultures, mediation is often seen as a collective process rather than an individual one. The parties involved are seen as representatives of a larger group or community, and the mediator's goal is to find a solution that benefits everyone involved. In contrast, in Western cultures, mediation is often seen as an individual process, with the focus on the interests and needs of the parties involved.

The Eastern approach to mediation also places a great deal of emphasis on mindfulness and meditation. Meditation is seen as a way to cultivate inner peace and to develop the skills necessary for effective mediation. Mediators are often trained in meditation techniques, and these techniques are used to help the parties to manage their emotions and to stay focused on the task at hand.

In many Eastern cultures, mediation is seen as an art form, and the mediator is seen as an artist. The mediator is expected to be skilled in communication, negotiation, and conflict resolution, and to be able to use these skills to create a beautiful and harmonious solution to the conflict.

In conclusion, the Eastern perspective on mediation emphasizes the importance of relationships, emotion, and mindfulness. Mediation is seen as a way to promote social harmony, restore relationships, and create beautiful and harmonious solutions to conflicts. While there are many similarities between Eastern and Western mediation practices, the Eastern approach places a greater emphasis on collective solutions, emotional intelligence, and the art of mediation. By understanding and incorporating these perspectives, mediators can improve their ability to facilitate effective and meaningful resolutions to conflicts

How Barristers Can Use AI to Develop Their Practice

As the legal industry continues to evolve, barristers are increasingly turning to technology to help them stay ahead of the curve. One such technology that has the potential to revolutionize the way barristers practice law is ChatGPT or Bard. These tools are AI-powered language models that can assist barristers in various ways.

In this Blog, I will explore how barristers can use ChatGPT as a tool to develop their practice and stay ahead of the competition. Currently, Bard is not widely available in Australia but having also used Bard, ChatGPT has an edge when it comes to presentation of the answers.

Conduct Legal Research

One of the primary ways that ChatGPT can assist barristers is by conducting legal research. With its ability to analyze vast amounts of legal data, ChatGPT can quickly find relevant case law, statutes, and other legal materials, enabling barristers to save time and effort.

Barristers can use ChatGPT to perform legal research in a variety of contexts, such as preparing for a trial, drafting legal documents, or advising clients. By using ChatGPT to conduct legal research, barristers can ensure that they have the most up-to-date and relevant information at their fingertips.

However, there is a caveat - always check the accuracy of the answers provided by ChatGPT.

Assist with Document Review

Another way that ChatGPT can assist barristers is by helping with document review. With its ability to analyze large volumes of text, ChatGPT can quickly identify relevant information and highlight potential issues, reducing the time and effort required for manual review.

Barristers can use ChatGPT to review a variety of legal documents, such as contracts, agreements, and court transcripts. By using ChatGPT to assist with document review, barristers can ensure that they are identifying all relevant information and potential issues, leading to more effective representation for their clients.

The most valuable assistance I have found using ChatGPT is to identify errors and improve on my written work.

Prepare Cases and Arguments

ChatGPT can also assist barristers in preparing cases and arguments. With its ability to analyze legal data and identify patterns, ChatGPT can provide valuable insights into legal precedents and trends that may be relevant to a particular case.

Barristers can use ChatGPT to prepare cases and arguments in a variety of contexts, such as advising clients, drafting legal documents, or arguing in court. By using ChatGPT to assist in case preparation, barristers can develop more effective strategies and improve their chances of success.

ChatGPT is also particularly useful to provide alternative options for settlement negotiation.

Translate Languages

Another way that ChatGPT can assist barristers is by providing language translation services. With its ability to translate text from one language to another, ChatGPT can help barristers communicate with clients who speak different languages.

Barristers can use ChatGPT to translate a variety of legal documents, such as contracts, agreements, and court transcripts. By using ChatGPT to translate languages, barristers can ensure that their clients fully understand their legal rights and obligations, leading to more effective representation and better outcomes.

Always check the accuracy of the translation with a native speaker!

Draft Legal Documents

Finally, ChatGPT can assist barristers in drafting legal documents. With its ability to analyze legal language and identify relevant clauses and language, ChatGPT can help barristers draft more accurate and comprehensive legal documents.

Barristers can use ChatGPT to draft a variety of legal documents, such as contracts, agreements, and legal briefs. By using ChatGPT to assist in document drafting, barristers can ensure that their legal documents are of the highest quality and accuracy, leading to better outcomes for their clients.

Conclusion

As the legal industry continues to evolve, barristers must find new and innovative ways to stay ahead of the competition. By using ChatGPT as a tool in their practice development, barristers can leverage the power of AI to improve their legal research, document review, case preparation, language translation, and document drafting.

While ChatGPT is not a substitute for the expertise and skills of barristers, it can provide valuable support and assistance in their legal work. By incorporating ChatGPT into their practice, barristers can save time and effort, improve the quality of their legal work, and provide more effective representation for their clients.

However, it's important to note that the use of ChatGPT and other AI-powered tools in the legal industry is still in its early stages. As such, barristers must be cautious and exercise judgment when using these tools, ensuring that they are accurate and reliable.

Overall, by embracing new technologies like ChatGPT, barristers can develop their practice and provide better outcomes for their clients. As the legal industry continues to evolve, it's likely that AI-powered tools like ChatGPT will become increasingly important in the practice of law.

Dealing with amendments for Expert Determiners

Introduction

Litigation, Arbitration, and Expert Determination have one thing in common – they are a controlled process leading to the decision-maker delivering a final judgment, award, or determination.

The difference with litigation and arbitration, however, is that the decision-maker (Judge or Arbitrator) is exercising judicial or quasi-judicial function conferred by Statute. The Expert Determiner’s power is conferred by Agreement and the application of the relevant rules agreed by the parties to apply to the process.

When dealing with amendments, the starting point for the Expert Determiner is to consider the Expert’s source of power. This is usually contained in the Expert Determination Agreement and/or the Rules of an Arbitral Institute applicable to the process.

For example, a clause that states ‘the Expert shall make such directions or rulings in relation to the process as he or she sees fit’ gives the Expert broad powers to deal with the expert determination process.

An application for amendments is, therefore, a procedural matter the Expert should have power to deal with it.

How then is the Expert to deal with amendments?

As a general approach, the Expert is not limited by the principles of case management in the same way as Judges or, to a lesser extent, Arbitrators are. Experts are usually required to ‘adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay and expense, to provide an expeditious cost-effective, and fair means of determining the dispute’ (see rule 5 IAMA Rules).

This is not to say that efficiency in the conduct of the expert determination and the costs consequences of allowing an amendment, in particular late amendment of Claims and Submissions or granting extensions of time for compliance with the process, are not relevant considerations for the Expert when dealing with such applications.

The usual approach is to allow the parties to come to agreement first amongst themselves. A party is entitled to have the real issues determined in an ‘expeditious cost-effective and fair’ process, so long as that there is no injustice to the other which is not compensable by an agreement as to costs.

Experts should always bear in mind considerations of fairness and justice between the parties while maintaining efficiency in the conduct of the process but he or she is not required to take into account the administration of justice generally as Judges have to or Arbitrators might be required to.

Kirby J in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 169-170 provide guidance of the sort of considerations applicable. Although these considerations relate to the administration of justice in court proceedings, they are instructive for Experts faced with late amendment application.

Conclusion

While each amendment application is different, the guiding questions for the Expert to consider are:

1. Whether the amendments are within the scope of the Expert Determination

 Agreement?

2. What relevant consideration are to be weighed when deciding whether to grant

 the amendments sought?

3. Whether the amendments might raise other legal questions, eg limitation of

 action period?

Proving foreign law (China) in an Australian Court

The Supreme Court of Appeal in Victoria has recently made it easier to prove Chinese law in Victoria in its judgment in Re Tang [2017] VSCA 171.

It was commonly believed that foreign law must be proved by a report of an expert (an academic or experienced lawyer from the foreign country). It seems that under s. 174 of the Evidence Act 2008, it is much easier than one had initially thought.

Re Tang raises the question whether a note written by the deceased while he was dying in a hospital in China should be admitted in Victoria as an informal will in respect of his assets in Victoria.

The answer depended on whether that note constitutes a valid will under Chinese law.

No expert report from China was tendered into evidence as to China's succession law.  The applicant put forward an English translation of an extract of Chinese statutory succession law sourced from a legal website (http://www.asianlii.org)

At first instance, the trial judge rejected the evidence as there was no expert evidence despite the accuracy of the Chinese law (confirmed by the trial judge's own research). The trial judge was, however, not referred to s. 174 of the Evidence Act 2008 during submissions.

On appeal, the Court of Appeal said that expert evidence was not the only means by which the content of a foreign law could be proved to the satisfaction of the Australian court. 

Under s. 174 of the Evidence Act 2008, however, it was open for the trial judge to have been readily satisfied that the text (and translation) was a reliable source of information about the applicable Chinese law of succession.

The Court's opinion on this issue is set out in paragraphs [64] and [65] of the judgment.

Despite this judgment, it remains prudent for practitioners to obtain an independent expert opinion on the law of the foreign country, particularly when the law may not be clear cut.