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.

Transactional engagement v Relational engagement

Everyday we engage in transactions.  For example, we buy a train ticket and in return, we get to hop on the train that will take us to our destination.  We pay for the food we want to eat.  We pay for the service of a hairdresser.  We get paid for the work we do. Our life revolves around handing over our hard earned cash in return for the goods or services we desire or need.  This continuous cycle of 'give and take' as a form of exchange make us good at transactional engagement.  Sadly, it also means that we forget the power of relational engagement, which concerns the way in which people think about each other, stay connected, and do their best to look after one another.

On a recent business trip to Shanghai with a client, I experienced a special treatment from my client that can only be explained by my client’s relational engagement and thinking.   We left Melbourne bound for Beijing as the transit point to Shanghai.  I travel with a carry-on bag as experience has shown me it is the best way to avoid delays and lost luggage.  My client, however, checked in his luggage. Our flight was scheduled to arrive in Beijing at 5.50am, and our connecting flight to Shanghai was at 7.30am.  

Our plane landed in Beijing at 6.35am. Most people would assume that their checked-in luggage would be transferred to the connecting plane bound for Shanghai.  It turned out to be 'wrong'.   All checked-in items of luggage have to be collected, and then re-checked in again for the connecting flight.  My client told me to go to the gate first while he finds his luggage. The time was 7am.  Boarding had commenced. Suddenly 5 minutes at the security checkpoint seemed like a very long time. To make matters worst, I was asked to open my bag to show the officer my battery pack, which had to go back through the security scanner again.  As soon as I took hold of my items, I made a dash to the gate. I was the last person to board. The gate closed at 7.15am. My client was nowhere to be seen. I told the stewardess that I was travelling with my client.  It was too late.  The Captain had directed the doors to the plane to be shut.

I was already hyperventilating as I tried in vain to contact my client on the phone.  The plane departed at 7.50am. I was desperate, as I did not have the address of our meeting place in Chinese.  My Mandarin was also rusty so I had to figure out how to convey the directions to a taxi driver to take me to our meeting place.

After landing in Shanghai, I turned on my phone's 'data roaming', at which time the phone just rang.  The call appeared to be from an Australian mobile phone number that I did not recognise.  It was not my client's mobile phone number.  I answered the call cautiously knowing that I would likely incur very high charges.  'Hello, this is Kent. Steven asked me to call you.  He missed his flight and will be on the next flight.  I am currently in Australia but Shanghai is my city.  Steven asked me to make sure you are okay.  I have arranged my driver to pick you up.  Don't worry!'  I was gobsmacked!  Steven is a native of China but he is not from Shanghai.  He called on his circle of friends to help me.  He took active steps to arrange for my own journey while he was himself delayed in Beijing.  His friend was not even in Shanghai, who called on his other circle of friends to ensure that I was being well taken care of. 

It took over an hour for me to get to my destination. I reflected on what my client did for me.  It was not the first time I had travelled to Shanghai. Catching a taxi was never a problem for me.  However, I experienced a special kind of treatment from a client who was very adept at relational engagement and thinking.  He thought of me instead of his own predicament.  He made every effort to ensure that I was not feeling pressured or stressed.  My client eventually made it to the meeting after lunch that day!

I felt honoured to receive such thoughtful treatment.  It made me ponder about how little time we spend actually engaging with people. Our day is often made up of communicating through social media platforms.  We have become good at ‘finger typing’ and faceless engagement.  We use our phones to pay for goods and services.  We prefer 'display to display' conversation rather than ‘face to face’ engagement.  We have become transactional.  We need to get back to being relational by spending 'in-presence' time strengthening our relationship with our circle of friends and family. We must remind ourselves that unless we make effort to nurture and build strong relationships with people, we will remain in a cycle of transactional engagement.  To me, transactional engagement is linear involving ‘giving and taking’ whereas relational engagement is organic. It grows as we invest our time in people.  It is all about 'giving and receiving'.  It is authentic.  It is special.  It should not be lost in a sea of transactions.

Laddering past the ceiling

   Much has already been written about the bamboo ceiling as an invisible barrier to professional advancement for Australians with an Asian cultural background.

   In a recent post published on LinkedIn (https://www.linkedin.com/pulse/bamboo-ceiling-asian-talent-missing-from-boardroom-asx-kylie-hammond?trk=hp-feed-article-title-comment), Kylie Hammond, CEO of Director Institute, reiterates what we already know, i.e. there is very low representation of Asian executives in leadership positions and in the boardroom. 

   In theory, it makes sense to have diversity of representation, whether it is gender, and/or cultural difference. It is now beyond anecdotal evidence that a diverse workplace is good for business.  So, why is there still a perceived reticence in embracing diversity at the higher echelon of leadership and business?

   It can be very difficult to alter one’s business and philosophical mindset especially when it has been successfully implemented for generations. 

   Change, however, is an evolutionary process.  It is therefore natural to treat change with caution. But even when there is an economic incentive for change, it is often a very slow process of shifting the emphasis from exclusion to inclusion especially when there are fewer role models to champion the process.

   It may be trite to say that many businesses don’t know what they don’t know.  Yet, it is true when one is comfortable and not challenged for survival.  Businesses in that frame of mindset are possibly shielded in part from the ravages of competition from a rapidly growing Asian economy because they are within their own microcosm of enterprise.  It has not hurt their bottom-line so they are happy to remain in maintenance mode. 

   Businesses seeking to capitalise the opportunities in the Asian century, however, need to recognise that remaining static in the comfort zone of one’s business environment will likely lead to commercial extinction.  Sustaining the stream of future revenues is no longer viable if there is no positive creative process put in place for a change of mindset to embrace diversity of thought so as to move from maintenance mode to growth mode to capture the expectations of a diverse consumer market.

   From a practical view-point, Hammond pointedly suggests businesses could apply two key criteria to address the lack of diversity of thought, and diversity in perspectives and cultures.

·      Develop a skills matrix to fill in the gaps

·      Specifically, develop a diversity criteria to bring in fresh dynamic talent

   But in practice, it remains for most a challenge in the boardroom partly due to a fear of the unknown, and partly due to not being invested in embracing the dynamics of cultural change.  The key is to take small steps. By developing a skills matrix to consider cultural gaps to fill, businesses are likely to find hidden talent under the radar.  Remaining static, however, is no longer a viable economic option, as others will find the best talent out there first.

   Conversely, rationalising that an invincible barrier hinders the rise of talented people continues to reinforce negative stereotypes of minorities.   The bamboo ceiling has likely reached its full height. It is time to scale the ladder of equality of opportunity and move from rhetoric to action.

   At a talk on Cultural diversity in the workplace at Herbert Smith Freehills’ Melbourne office on 11 March 2016, Commissioner Tim Southphommasane observed that:

·      Champions of gender diversity have skin in the game and embrace diversity because they want to see equality of opportunity for their children

·      Some rationalise that there is a lack of bandwidth as the reason for not seeing greater representation in leadership and the boardroom

   Leaders in the boardroom need to consider getting skin in the game otherwise there will not be any discernible improvement. Perhaps the starting point is for Chair-persons on Australian boards to champion and afford the opportunity to willing and able Asian Australian talents a chance to be included in the boardroom or in leadership positions.

   While it is not surprising that there are fewer Asian Australians at the upper echelon of leadership and business, Leaders in the boardroom can speed up the process of identifying, developing and nurturing the pool of younger Asian Australian talents by offering a pathway of advancement for them.  

   Reality TV has been an equalising platform to discover a rainbow of hidden talents.  For example, many talented characters of color emerged from programs like Australian Idol, X Factor and Master Chef.  This suggests that by increasing bandwidth there will likely be more balanced representation of talent from a wider spectrum of talent.   

   The more visible diversity becomes, the more likely we will see Asian Australian talent rising up to the occasion.