LawNews- Issue 24

Emojis

‘the new reality’ in

Contents

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

Editor: Jenni McManus

Publisher: ADLS

Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz

Reweti Kohere 022 882 2499 Reweti.Kohere@adls.org.nz

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All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz

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Photo: Tanya Constantine / Getty Images

Canadian judge accepts thumbs-up emoji as binding in contract dispute

This appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like

Reweti Kohere

Is a “thumbs-up” emoji sent in a text message enough to form a legally binding contract?

Yes, according to a decision by Justice Timothy Keene in the Court of King’s Bench for Saskatchewan, Canada, in a contract dispute between South West Terminal Ltd (SWT) and Achter Land & Cattle Ltd (ALC).

Justice Keene said while he accepted the case was novel, at least in Saskatchewan, the court “cannot (nor should it) attempt to stem the tide of technology and common usage.

“This appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emojis and the like,” he said.

At issue was a photo of a contract that grain and crop company SWT texted to ALC, as it had done several times in the past. SWT received the thumbs-up emoji in response and believed the pair had entered into a binding agreement to deliver 87 tonnes of flax.

The deal

For nearly a decade, SWT, a farmer-owned, independent grain and crop inputs company, bought grain from farming corporation ALC.

A couple of years into the parties’ business relationship, Kent Mickleborough started at SWT as a grain buyer. When negotiating contracts with ALC, Mickleborough would deal mainly with the seller’s principal, Chris Achter. The pair would agree on a price and volume of grain, then Achter would ask the grain buyer to write up a contract and send it to him for approval.

Even before the covid-19 pandemic forced him to stop meeting producers in person, Mickleborough would typically draw up contracts by email and text message. Before this particular dispute, he had already completed a few contracts with ALC by having Achter execute them by text message

from his cell phone number.

The grain buyer would write up the terms of the contract, sign it, then take a photo of it from his cell phone, and send it to Achter with the message, “Please confirm terms”. On three previous occasions, Achter had replied “Looks good”, “Ok”, and “Yup”. The grain buyer understood Achter’s responses to mean he had agreed to the contract.

However, their consistent meeting of the minds was seemingly absent on 26 March 2021. SWT agreed to buy 87 metric tonnes of flax from ALC for C$669.26 (NZ$747.36) a tonne, with delivery occurring later in November.

Mickleborough followed his usual process of drawing up the contract and sending it via text. Asked to “please confirm flax contract”, Achter replied from his cell phone with a “thumbs-up” emoji.

Eight months later, Achter did not deliver any flax. The flax spot price at the end of November 2021 was nearly 2.5 times the contracted sale price. SWT sued for breach of contract, seeking just over C$82,000 (NZ$94,629) in damages, plus interest and costs. Achter denied it had entered into the contract.

“What sets this case apart is the use of a thumbs-up emoji ‘��’ and what that meant in the context of the specific facts of this law suit,” Justice Keene said.

Proof is in the pudding

Dealing with SWT’s application for summary judgment, Justice Keene noted the parties agreed the case was “tailor-made” for an expedited decision, without the need and expense of a trial. However, they disagreed on whether there was a meeting of the minds.

The formation of contracts in Canada is judged objectively, the judge explained. When considering how each party’s conduct would appear to a reasonable bystander, Canadian courts aren’t restricted to the “four corners of the purported agreement”. They can consider the surrounding circumstances as well as the nature and relationship of the parties and the interests at stake.

The judge found the parties had an “uncontested pattern” of entering into – what the pair knew and accepted to be – valid and binding contracts. Each time Mickleborough

I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a �� emoji

Continued from page 03

asked for Achter’s confirmation of the offered contract, ALC’s principal replied with “curt words” that both parties understood as meaning confirmation of the deal, and not a mere acknowledgement that Achter had received the contract.

“There can be no other logical or creditable explanation because the proof is in the pudding. Chris delivered the grain as contracted and got paid. There was no evidence he was merely confirming the receipt of a contract and was left just wondering about a contract,” Justice Keene said.

Assent, approve, encourage

While Mickleborough understood Achter’s thumbs-up emoji to signify his agreement, ALC’s principal took a different view. “I confirm that the thumbs-up emoji simply confirmed that I received the flax contract. It was not a confirmation that I agreed with the terms of the flax contract,” said Achter, who understood a complete contract would follow by fax or email for his review and signature.

Because of the disagreement, the parties were led to a “far flung search for the equivalent of the Rosetta Stone” in cases from other jurisdictions to unearth what a �� emoji meant, said the judge, a self-described latecomer to the world of technology.

Based on his everyday use of the emoji, and his understanding of it, Justice Keene found alignment with Dictionary.com’s definition of the emoji being “used to express assent, approval or encouragement in digital communications, especially in Western cultures”.

Achter’s interpretation also possessed “a bit of a cake and eat it too” flavour, the judge said. Appearing somewhat “carefully crafted”, the affidavit evidence from ALC’s principal would have the court “accept the �� emoji meant only he got the contract but not that he approved the contract. This is of course somewhat self-serving.

“I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a �� emoji,” Justice Keene said.

“In my opinion…a reasonable bystander knowing all of the

background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions.”

Tide of technology

The judge also found the emoji was valid for the purposes of s 18 of Saskatchewan’s Electronic Information and Documents Act 2000, which permits electronic forms, such as clicking on an icon on a computer screen, to express an offer, acceptance, or any other matter material to forming a contract.

Achter’s argument – that an actual signature, which would’ve confirmed his identity and conveyed his acceptance of the contract, was essential – didn’t persuade the court. “I agree a signature in the classic presentation does denote identity and confirmation of an agreement…However, that in itself does not prevent the use of a modern day emoji such as a ��,” Justice Keene said.

Achter also defended the claim on the basis the emoji didn’t constitute a signature under the state’s Sale of Goods Act 1978.

To enforce a contract for the sale of goods exceeding C$50 (NZ$60), s 6 of the Act requires the party to be charged to make and sign some note or memorandum in writing of the contract.

The judge found the flax contract was “in writing” and “signed” by both parties. But did Achter’s thumbs-up emoji constitute a “signature”?

“This court readily acknowledges that a �� emoji is a nontraditional means to ‘sign’ a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a ‘signature’ – to identify the signator (Chris using his unique cell phone number) and, as I have found above, to convey Achter’s acceptance of the flax contract,” Justice Keene held.

“I therefore find that under these circumstances that the provisions of s 6 of the SGA have been met and the flax contract is therefore enforceable. There is no issue in this regard that requires a trial.”

The court awarded SWT $82,200.21, the difference between the contract price for the 87 tonnes of flax was C$944.83 a tonne and the market price in November 2021, when delivery should have been made. ■

This court readily acknowledges that a �� emoji is a nontraditional means to ‘sign’ a document

Update from the Criminal Law committee

“as soon as reasonably practicable”. Ensuring timely disclosure would ensure the truly resolvable cases resolve earlier and leave more jury trial fixture dates available for the contestable cases that need proceed to trial.

The ADLS Criminal Law committee, comprising experienced members of the defence bar, has a wide remit that includes upholding the rights of clients and principles of the criminal justice system.

In the past few months, members have made submissions on a wide range of law reform proposals:

Digital reform

The Digital Strategy for the Courts, which promises to revolutionise the way the criminal justice system operates. The committee’s chief concerns were around equity in accessing digital resources, the effect of any information-sharing procedures on individual rights and the proposed use of artificial intelligence as part of the strategy.

Family and sexual violence

The Ministry of Justice’s consultation proposal to amend the current legislative settings around family violence and sexual violence to better consider the rights of victims.

The committee was concerned about the knee-jerk nature of the proposals and asked whether resources would be better directed at counselling and support for victims of sexual violence and directing reform to restorative justice-based approaches that put accountability and healing at the centre of the justice process as an alternative to the current (bitterly adversarial and increasingly technical) process.

Duty lawyers

The revised duty lawyer operational policy, which proposes to assign cases to a duty lawyer or another lawyer at court where (i) the case could be progressed to plea and disposal on the day, and (ii) where the duty lawyer assists a defendant to apply for bail where bail is opposed.

The committee supported the proposed reforms (and, indeed, any reform that advances case

progression and reduces delay), noting potential issues with the mechanics of how this policy would operate.

Independent review

The NZLS 2023 review, where the committee did not support the recommendation to establish a new independent regulator and was content with NZLS retaining its regulatory function while leaving membership and advocacy functions to other bodies.

Media coverage

The Ministry of Justice’s updated draft In-Court Media Coverage Guidelines, to reflect updated experience since the current version of the guidelines came into effect in 2016. The committee was strongly opposed to the livestreaming of trials, given the inherent unpredictability of trials and the effect of such livestreaming on any subsequent re-trial.

Law Commission

The Law Commission’s proposed review of the Evidence Act 2006 proposes reforms to the rules of evidence covering the hearsay, investigatory techniques and the risks of unreliability; prison informants and incentivised witnesses, identification evidence, and more.

Jury timelines

The Ministry of Justice’s consultation on improving jury trial timeliness. The committee’s primary submission centered around the importance of the prosecution taking a proactive approach to providing early and complete disclosure.

The current practice involves disclosure often being provided late, in piecemeal fashion and only after the defence makes a disclosure request.

It is inconsistent with the prosecutorial obligation in the Criminal Disclosure Act 2008 to provide disclosure

Road safety

The Land Transport (Road Safety) Amendment Bill is intended to respond to unsafe behaviour on New Zealand roads by giving further powers to New Zealand police and Waka Kotahi NZ Transport Agency to detect inappropriate behaviour on the road and to carry out enforcement duties.

The committee has also intervened in Fawcett v Legal Services Commissioner [2022] NZHC 3366, an appeal from the decision of the Legal Aid Tribunal. Here, the High Court ruled that time spent on Legal Aid administration fell within the definition of “legal services” under the Legal Aid Services Act 2011. The commissioner has appealed to the Court of Appeal and ADLS (alongside the New Zealand Bar Association and the Defence Lawyers Association of New Zealand) has been granted leave to intervene at the appeal hearing later this year.

Along with everyone in the profession, the committee was shaken by the violent attack on Northland lawyer Brintyn Smith. ADLS has been in touch with Brintyn and (again, with the rest of the profession) is determined to ensure work is done to prevent this incident from being repeated. Committee members have noted that clients are increasingly stressed as a result of the delays in the court and prison systems. Committee members regularly meet with prison representatives and attend court user meetings to work to alleviate these issues.

The committee was also represented at a specific meeting on safety at courts. If you feel unsafe while in court, speak to the security officers onsite. If that is not practicable, email or pass a note up to the registrar in court. The registry has an instant messaging system with the security staff.

Lastly, the committee encourages anyone with any views relating to the above or any of its ongoing work to get in touch through the committee secretary Dan Conway or a committee member. ■

ADLS COMMITTEES

The committee was strongly opposed to the livestreaming of trials, given the inherent unpredictability of trials and the effect of such livestreaming on any subsequent re-trial

Beyond the bottom lines

much healthier dividends, “always taking care,” Winston Peters would doubtlessly add, “to keep ‘em guessing!”

Politics of addition

Chris Trotter

They may have first-rate pollsters and the funds to pay them, but Labour and National are both flying blind. Deaf, too, if the lofty rejections of their respective coalition partners’ key policies provide any guide.

Neither of the major parties appears to have noticed the multiplying signs that the forthcoming election is less likely to deliver a clear result than a political impasse – if not a hung Parliament, then an intractable assembly of irresolvable differences.

Introducing his party list candidates to the news media only last weekend, ACT leader David Seymour reiterated his party’s hard-line stance on the treaty. Once again, he affirmed that he and his colleagues were quite happy to take up a position on the cross-benches rather than surrender what they regard as vital policy objectives that must be implemented.

James Shaw, the Greens co-leader, has issued a similar threat to Labour. If it persists in ruling out both a wealth tax and a capital gains tax, then the Green Party membership may instruct its MPs to join ACT’s representatives on the cross-benches.

There was a time when ‘James Shaw’ and ‘credible threat’ were not words to be used in the same sentence. But, in the aftermath of his re-election humiliation by the Greens’ radical wing in 2022, Shaw has learned to do as he’s told.

That both ACT and the Greens are issuing these threats is evidence that the minor parties are finally learning the lessons of New Zealand’s MMP history.

Like Alice in Wonderland, they have discovered that one side of the political mushroom makes you larger and the other side makes you smaller.

Eager acquiescence to the senior coalition partner’s demands is the fastest track to political irrelevance for smaller parties. Bitter denunciation of the larger party’s ideological spinelessness pays

And then, there’s Te Pāti Māori (TPM) – potentially the biggest disrupter of the 2023 general election. Having spent the past three years “kicking the crackers”, TPM is now pivoting away from its hard-line ethno-nationalism, extending its pitch to include not just marginalised urban Māori, but also poor Pakeha – the voters in whom National, Labour and the Greens no longer appear to take much interest.

At its own “meet the candidates” event, cleverly integrated into a free Matariki musical event, TPM’s co-leader Debbie Ngarewa-Packer reached out beyond the Māori roll.

Her call was for an “Aotearoa hou”, a New Zealand re-made: “It is a tiriti-centric Aotearoa, like coming on to a marae, where everybody is loved, everyone is fed, everyone is welcome, equally made to feel like we belong.”

TPM is important, quite possibly vital, to the outcome of this year’s election because it is practising the politics of addition. For the most part, New Zealand electoral politics is about the politics of subtraction, luring voters from one political party to another.

What TPM appears to be doing is luring voters – especially young Māori voters – from non-voting to voting. If it can effect a similar transition among young, disaffected Pakeha voters, then the overall size of the electorate will increase and the volatility of 2023’s electoral politics will intensify.

Destabilising scenarios

Confronted with this rolling electoral maul, who would want to be New Zealand’s Governor-General?

Already burdened with that role, Dame Cindy Kiro may find herself negotiating a range of potentially destabilising political scenarios, none of which has previously tested the constitutional mettle of the vice-regal office. The reserve powers of the Crown may be called to the aid of the realm in ways New Zealanders have never before witnessed.

Imagine, if you will, a scenario in which National and Labour are evenly splitting roughly 60% of the votes cast, with the remaining 40% divided between ACT, the Greens and TPM.

Since ACT has fallen several percentage points short of its

There was a time when ‘James Shaw’ and ‘credible threat’ were not words to be used in the same sentence

That both ACT and the Greens are issuing these threats is evidence that the minor parties are finally learning the lessons of New Zealand’s MMP history

Chris Trotter

Continued from page 06

20% target, the Right bloc, to be in a position to reassure the Governor-General that it commands a parliamentary majority, needs the support of a third guarantor of confidence and supply.

Since there is little to no prospect of National/ACT finding such support, Dame Cindy turns to the Labour leader Chris Hipkins for advice.

Hipkins’ dilemma

This is where things get messy. Hipkins, acting as “caretaker” Prime Minister since his command of a parliamentary majority has yet to be confirmed, informs the Governor-General that while Labour, the Greens and TPM between them command a majority of seats in the House, he has yet to persuade either party to give him a guarantee of confidence and supply.

When Dame Cindy asks him why, he tells her the Greens will not negotiate with Labour until it agrees to introduce a wealth tax, while TPM’s chief negotiator, John Tamihere, insists TPM will not negotiate with Labour until it sees the shape of any LabourGreens ‘deal’.

Dame Cindy has to be very careful at this point not to become engaged in the negotiation process herself. As the then Governor-General, Sir Michael Hardie Boys, observed in his address The Role of the Governor-General under MMP, delivered to the Institute of International Affairs on Friday 24 May 1996: “[B]ecause the head of state must be, and must be seen to be, politically neutral, removed, aloof from politics, it is the responsibility of politicians to protect her and her representative from the need to make what is, or may be seen to be, a political decision.”

All well and good, Sir Michael, and so say all of us. But what if the politicians are too bound up in defending their bottom lines from the predations of their potential coalition partners to spare a thought for Dame Cindy and her vice-regal responsibilities?

Unsurprisingly, Governors-General take care to keep themselves well-informed about the machinations of the realm’s principal political actors. We must presume Dame Cindy is no exception to this rule.

That being the case, she would (under the above scenario) be well acquainted with the fact that National and ACT are locked in a bitter struggle about the latter’s policy on the treaty. No more than Hipkins could the National leader, Christopher Luxon, form a government even if, on paper, he had the numbers.

Grand coalition

Impasse? Not necessarily. The formation of a government does not take place in splendid isolation from the rest of society. Confronted with such a political log-jam, the other powers in the land – the business community, the news media, academia and the trade unions – would all have their own suggestions to put to the leaders of the parties, especially the two largest parties.

By far the most forceful suggestion, and likely the most widely supported, would be for National and Labour to break the impasse by agreeing to form a “grand coalition”.

Not only would this force the minor parties into a fractious Opposition, ideologically divided and incapable of concerted action, but a grand coalition would also restore stability to the no doubt agitated financial markets and quieten a population grown uncharacteristically restive as the negotiations dragged on without the anxiously anticipated (and wildly divergent) outcomes.

So heavy would be the moral pressure applied to Hipkins and Luxon, and so great their fear of the concessions which the Greens and TPM would likely extract from a Labour Party determined to remain “true”, that the odium a grand coalition was bound to attract from their respective party memberships would be deemed a price worth paying.

Thus would Sir Michael Hardie Boys’ 27-year-old expectations in this matter be vindicated by events.

The politicians, in extremis, would have found a way to keep both the Head of State and the ordinary people of New Zealand safely aloof from the exercise of real political power.

In the end, even a sulky and shaky political compromise is preferable to vice-regal dictatorship, social revolution and/or a race-based civil war. ■

Chris Trotter has been a political writer and commentator for more than 30 years. He is the author of the Bowalley Rd blog. ■

Offices Available

Following some barristers retiring, we have three offices of varying sizes available for rent.

If

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom with video conferencing facilities and a less formal meeting room), and communal entrance and client waiting area. Telephones, internet connection, printing and secretarial services also available and some furniture available.

Cost depends on office size and range from $150 – $300 per week plus gst. No long-term commitment required.

Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.

Contact:

Eager acquiescence to the senior coalition partner’s demands is the fastest track to political irrelevance for smaller parties

you are looking at selling your Law Practice and are curious about the value of your business call me today for a confidential discussion.

As academics struggle to detect plagiarism, ChatGPT can already pass law exams

Is your graduate a cheat? As law firms begin experimenting with ChatGPT and other forms of artificial intelligence, some worry that their graduates might not have the skills their academic transcripts suggest.

ChatGPT can, in seconds, generate essays and exam answers that would have taken students hours or even days in the past.

It isn’t like a Google search, says Antonia Modkova, director of IP and innovation at SOUL MACHINES. “What it is generating is something novel that the world has not seen before.”

The issue for both law schools and employers is that with the right prompts, ChatGPT can generate answers to complex questions. It is already good enough to pass law exams, Modkova says. GPT-4, the latest iteration of the software, scored 75% in a bar exam. “Good enough to place in the 90th percentile,” she says.

For law firms wanting to hire graduates in the next few years, that could mean these students’ abilities might bear no resemblance to their official academic transcript if they’re skilled at using generative AI tools. Conversely the graduates who can utilise the technology the best could prove more profitable in private practice.

There are many uses within law firms for the technology, Modkova says. These include proofreading, legal research, drafting documents and contracts, reviewing documents and contracts, giving legal advice, automating client correspondence, summarising client meetings and even judicial decision-making.

For example, when Lawgeex used an AI robot for reviewing contracts and tested it against 20 lawyers, the robot could pick up 94% of the risks in non-disclosure agreements (NDAs). The human lawyers picked up only 85% of those risks.

Modkova adds that generative AI doesn’t get bored, it writes faster than a human and is more scalable than a single legal expert charging by the billable hour.

On the downside, generative AI lacks common sense and understanding, it’s extremely prone to groupthink and bias, contradicts itself and can be tricked, among other failings, she says.

Academic angst

Make no mistake, graduates will need the ability to use generative AI tools. Simply knowing the law is now not enough, says Alex Sims, associate professor in the Department of Commercial Law at the University of Auckland Business School.

If they can’t use the tools, graduates will soon be too slow in their work. The technology will only get better. But in academia, AI is generating a great deal of angst. Anti-plagiarism tools such as Turnitin are scrambling to add ChatGPT detection capability. But can these tools stay ahead of the rapidly evolving technology?

Academia doesn’t yet have the answers. It’s a trying time for law schools and other departments in universities everywhere, says Sims. “It means [universities] can't keep on doing what [they] did in the past.” New forms of assessment are needed.

Assessing students

Law schools could focus on trying to detect AI use in written material. Or academia can try to adapt to a new paradigm, which may not be a bad thing, Sims says.

She argues that tests and exams have never been good assessment vehicles, anyway. “Just because some people are no good at exams, it doesn’t mean they don’t know the law.”

As an example, Sims cites herself. She had no experience at sitting formal tests and exams when she entered university.

“When I was at law school, I wasn’t very good at exams because I went to a different type of school,” she says. “I would help [other students]. I'd explain what the law was to them because they didn't understand it. And they ended up getting

Continued on page 09

Diana Clement

Generative AI doesn’t get bored, it writes faster than a human and is more scalable than a single legal expert charging by the billable hour

Antonia Modkova

Continued from page 08

better marks than me in the exam because they were good at exams.” The irony in academia, Sims says, is that universities are now considering assessment methods that have been superseded or ruled out in the past.

“One way that you can assess students to see whether they understand the law is in-person, handwritten assessments.” That’s assuming that good writing will still be needed in the law, as it was in the past, she says. And, of course, AI-generative tools can now do it for them, hence the need for in-person hand-written tests.

Verbal assessments could also be used to ensure students know the material. But, like hand-written assessments, these can be cumbersome and are a lot more work.

Many academics are now talking about assessing soft skills which is another irony, although positive, Sims says.

“Those so-called soft skills like presenting and talking with people were dismissed [in the past].” Academics argued that law students didn’t really need the soft skills. “Now people are going ‘how can we assess students’ soft skills?’”

Why hire juniors?

It has been suggested that law firms shouldn’t worry that their graduates might have cheated in their exams because generative AI ought to be able to replace them. Why bother with self-obsessed young employees if a tool can do the job in less time?

Stace Hammond partner Kesia Denhardt disagrees. “Presently, this new technology does not have the competence to compete with lawyers so as to render them obsolete,” says Denhardt.

In fact, Denhardt argues that generative AI has significant potential to impact the way lawyers work in a positive way, by eliminating or reducing the time and effort spent on some legal work, including drafting, research and other more routine tasks

which can be automated and delegated to AI.

“However, there are key human attributes embedded in legal work which AI does not possess, including and especially critical thinking and the exercise of judgment, and the abilities to develop strategy and take account of ethical considerations.

“AI does not have the instinct, perception or sensitivity innate in lawyers, nor does it understand or have the ability to create a trusted relationship with a client. It also does not have the practical experience a lawyer has in dealing with the unpredictable.”

Collaboration

Denhardt argues that the optimum relationship between lawyers and generative AI would be collaboration.

“AI cannot and should not substitute for lawyers but could be utilised to work with lawyers as a tool to complement their skills and perform certain legal tasks more efficiently, thereby freeing them up to focus on the more human aspects of legal practice.

“By joining forces, lawyers and AI could each offer one another the capability to achieve what they cannot do alone.”

Denhardt says the flow-on effects of AI being used by the profession may lead to some law practitioners changing their business model from billing on a time-spent basis to valuebilling or other alternatives. It may also result in better access to justice.

Goodbye to grunt work

Some industry thinking around law and generative AI has been at either end of the spectrum, says Sims. “On the one hand, [it’s] that grads and even lawyers are no longer needed. They are. But not as many will be needed. On the other hand, it’s that AI will have no effect on grads and lawyers because law is ‘special’.” Neither is correct.

Having a good grasp of how to get the best out of generative

Continued on page 10

Alex Sims

GPT-4, the latest iteration of the software, scored 75% in a bar exam

Photo: Yuichiro Chino Getty Images

Continued from page 09

AI will be beneficial for graduates. Even now, they shouldn't be doing grunt work, Sims says. “They should never be doing discovery because that's been done by AI for a long time.

“[When] doing background research for the partner they're working for, they need to be using the AI tools and other tools to do their work. They’ll be able to do more and, hopefully, more interesting things than they currently are.”

What’s more, the ability of technology to change legal work is not new, she adds. “About 10 years ago, I was at a law and tech conference in Sydney. At my table was a lawyer in his 60s. He said he had changed his practice. He now had seven younger people working for him and was getting through more work than when he had 21 lawyers.” The only difference is that the pace of change is becoming far more rapid.

Law firms have a couple of years up their sleeves before AI ‘cheats’ start applying for jobs. Students finishing this year or next have probably done most of their work and assessments without the help of ChatGPT, Sims says.

Going forward, the answer to worries about so-called cheating could be quite simple. Law firms could reduce their reliance on official academic transcripts and focus more on students proving themselves as interns or summer clerks, she says. It’s a try-before-you-buy approach to employment.

Another alternative might be to use interviews to assess the graduate’s legal knowledge.

It might, in fact, mean those destined to be put out to pasture might be those doing the interviewing, if they can’t keep up with the technology.

“I do know that there are senior lawyers who are very much looking forward to retiring or retiring slightly early because they can see what's coming,” Sims says.

On the other hand, while partners may be wringing their hands, the technology will prove useful – at least for those with the skills to harness it and ensure that results are reliable.

For example, Andrew Perlman, dean of Suffolk University Law School, wrote a 14-page legal article in one hour by collaborating with ChatGPT. Summarising the experience, he

said: “For the legal industry, ChatGPT may portend an even more momentous shift than the advent of the internet.”

In the right hands, generative AI can be more reliable than lawyers and is highlighting that humans make just as many or more mistakes than machines, Sims says. In the future, she believes it will be negligent not to use AI.

Humans make mistakes

As it stands, ChatGPT has a growing reputation for making up references. In the wrong hands, it’s more of a toy than a tool. Relying on it in the law is currently risky.

“The results from the generative AI tools are simply not good enough for the results to simply be relied upon,” Sims says. “You need someone with knowledge/expertise to know what is correct and what requires changing, especially with New Zealand law.

“Knowing what prompts to use works only if you have the ability to judge what is and isn’t correct. This is where knowledge comes in. The ChatGPT comes up with a case. It may be an actual case. But it may have got that case wrong.”

She cites one example she saw in academia where a student entered a question into AI and received an answer containing inaccuracies. Knowing this, the student refined the question two more times until the answer was accurate. The skill was in knowing how to use the tool to fast-track the work. The more desirable graduate will be one who can use the technology in this way.

Lawyers shouldn’t jump into using generative AI without considering the risks. Sims warns lawyers to be very careful about entering client data into public tools such as ChatGPT. “There are all sorts of confidentiality issues there. The reason for that is that [the client data] then becomes part of the data that ChatGPT is using.

“That's actually a policy that law firms, if they haven't done already, need to implement immediately.” The technology will be integrated into legal solutions, intranets or other closed systems that keep the information secure, she says. ■ To learn more about AI’s impact for legal practice, attend ADLS’ Much Ado About AI webinar on 15 August: click here

Kesia Denhardt

This new technology does not have the competence to compete with lawyers so as to render them obsolete

Events

Featured events

Upcoming

South Auckland Lawyers’ Lunch

Tuesday 8 August 12.30pm – 2pm

Woodside Bar Kitchen Functions, 639 Great South Road, Manukau City Centre, Auckland

Sponsored by MAS

East Auckland Lawyers’ Lunch

Wednesday 23 August 12.30pm – 2pm Goode Brothers, Shop 36/588 Chapel Road, East Tāmaki, Auckland

Connecting New Zealand lawyers Learn

Christchurch After 5

Thursday 19 October (NEW DATE) 5.30pm – 7.30pm Botanic, 126 Oxford Terrace, Christchurch Central City

Sponsored by MAS

September Hawke’s Bay Lawyers’ Lunch Soon

Cross-leases: continuity and challenge

Webinar 1.5 CPD hours

Tuesday 25 July 12pm – 1.30pm

Price from $110 + GST Presenters Thomas Gibbons, principal, Thomas Gibbons Law and Campbell Burrows, director, CKL Planning | Surveying | Engineering | Environmental

Contingency planning: employment and health and safety

Cross-leases continue to throw up a mix of survey, planning and legal issues. Presented by a lawyer and a surveyor, this webinar will canvas the key areas to watch out for.

Excellence in legal writing

Workshop 3 CPD hours

Webinar 1 CPD hour

Thursday 27 July 12pm – 1pm

Price from $80 + GST Presenters Myriam Mitchell, Penny Bower and Daniel Erickson Chair Claire Mansell

Extreme weather or natural disasters require immediate and urgent responses. This webinar will provide insights and practical learnings so your clients can prepare contingency and continuity plans.

ALL LEVELS WRITING WORKSHOP

Wednesday 2 August 9am – 12.15pm

Price from $350 + GST

Facilitator Andrea Ewing, Crown counsel, Crown Law Office (Criminal Team)

Legal writing is the bread and butter of a lawyer’s practice. But writing well is harder than it looks. For years we have been told that we should “write like Katherine Mansfield”. But what does this mean?

Electronically monitored bail

CRIMINAL ALL LEVELS WEBINAR

Public works Intensive

ALL LEVELS PROPERTY WEBINAR

Webinar 2 CPD hours

Thursday 10 August

4pm – 6.15pm

Price from $140 + GST

Presenters Matthew Casey KC and Sue Simons, partner, Berry Simons

Lawyering for 21st century relationships

ALL LEVELS GENERAL PRACTICE WEBINAR

Webinar 1.5 CPD hours

Wednesday 9 August

5pm – 6.30pm

Price from $110 + GST Presenters Brendan Hurley and Prashant Rai

Chair Julie-Anne Kincade KC

With perspectives and practical insights from Bail Support Services and EM Operations from the Department of Corrections, this webinar will, among other things, show you how to streamline applications for EM bail.

Focusing on the Public Works Act 1981, this webinar intensive will cover the processes from pre-acquisition through to compensation and show how they work in practice.

Webinar 1.25 hours

Monday 14 August 12pm – 1.15pm

Price from $100 + GST Presenters Mary Joy Simpson, partner, Hesketh Henry and Nura Taefi, barrister, Shortland Chambers

This webinar will dig deeper into Sutton v Bell and Mead v Paul: their circumstances, the landmark judgments and what the ramifications might be for the way lawyers give advice.

WILL INQUIRIES

Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document

LawNews: The no-hassle way to source missing wills for $80.50 (GST Included)

reception@adls.org.nz ADLS, PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax: (09) 309 3726 Ph: (09) 303 5270

DAVIES

Trevor Laurence

• Late of Auckland

• De facto

• Retired

• Aged 66 / Died 27’05’23

HODGSKIN

Geoffrey Eric George

• Late of Auckland

• Shipping agent

• Aged 76 / Died 9’06’23

MATAMU

Joe Alapati

• Late of Narada Place, Papatoetoe, Auckland

• Retired

• Aged 80 / Died 04’03’23

SHEN

Wei Goan

• Late of 48 Bremner Avenue, Mt Roskill, Auckland

• Widow

• Retired

• Aged 96 / Died 01’07’22

The Trustee’s Handbook, 6th edition

Author Vicki Ammundsen

The Trustee’s Handbook is a must-have for trustees, trust advisers and anyone involved with administering trusts.

This 6th edition includes 120 precedent minutes and resolutions. The precedents reflect day-today decisions trustees make and matters that trustees need to take into consideration.

TANE Joseph

Taongahuru

• Late of 180 Kaihu Wood Road, Dargaville

• De facto

• Bushman

• Aged 65 / Died 26’02’23

WOODS

Anthony Robert

• Late of 57 Seacliffe Avenue, Belmont, Auckland

• Married

• Retired

• Aged 76 / Died 28’07’22

As well as references to contemporary case law, the book includes comprehensive and practical checklists to guide trustees as they go about the everyday business of being a trustee.

Price for ADLS members $86.40 plus GST*

Price for non-members $96 plus GST*

(* + Postage and packaging)

To purchase this book please click here or visit https://adls.org.nz/bookstore/ or contact the ADLS bookstore by phone: 09 306 5740, or email: thestore@adls.org.nz

We' re looking for a lawyer who is looking for a change.

Interested? Are you...

• Passionate about promoting a thriving legal community in New Zealand?

• Interested in managing a portfolio of specialist legal committees?

• Want to join a team making a real difference to the law and the legal profession?

For more information, click here