LegalTech Image (Source: Medium)
The legal sector has a general reputation for being conservative when it comes to technology. Not anymore. The landscape is rapidly changing. Digital legal tools have gone beyond the days of Westlaw and LexisNexis, the two companies that pioneered online legal research. Artificial intelligence is revolutionizing how attorneys practice law. Keep reading to understand what artificial intelligence is and how it’s transforming the legal profession.
AI Partners with Lawyers
Artificial intelligence (AI) is a term used for a computer-based algorithm that can analyze, strategize, and draw conclusions to complete tasks typically performed by humans. Although AI is new, people have dreamed of harnessing the capability of computers to assist in legal tasks for hundreds of years. In the late 1600s, the German attorney G.W. Leibniz theorized that machines would someday use a binary logic system to calculate numbers, and he envisioned a partnership between artificial intelligence and lawyers. Despite never seeing anything resembling a computer, he accurately described the benefits that AI now provides to the legal profession: “It is unworthy of excellent men to lose hours like slaves in the labor of calculation which could safely be relegated to anyone else if machines were used.”
AI-based software allows law firms to automate lower-level tasks, freeing time for attorneys to focus on complex analysis and client interaction. AI greatly enhances an attorney’s ability to research, advise, and serve their clients. Some large firms already use AI-based tools to enhance their practices. According to the 2018 Technology Survey by the International Legal Technology Association, 100 percent of law firms with 700 or more lawyers use AI tools or are pursuing AI projects. Firms, particularly larger businesses, that don’t adapt to changing technology, will soon struggle to compete.
Eventually, artificial intelligence will automate even more aspects of legal practice. According to a Deloitte Insight report, AI may automate more than 100,000 supportive roles in the legal sector within the next two decades. However, AI won’t spell the end of non-attorney legal careers. Instead, it will undoubtedly create new career paths, with boundless opportunities in AI and machine learning.
Applications of AI in the Legal Field
AI will revolutionize the following areas of the law.
LItigation Document Review
One thing all attorneys can agree on is that law practice involves a lot of paperwork. Even a simple case can involve an impressive number of documents, communications, and reports. Attorneys have a duty to review all the discovery materials associated with a case. If an attorney misses key terms or changes, it can be disastrous and even rise to the level of malpractice. Fortunately, AI streamlines eDiscovery technology, including document review.
AI eDiscovery algorithms work by learning how a firm reviews documents and sorting out relevant terms, topics, and other criteria. Once AI software knows what to look for, it can suggest important documents and areas of interest within the content. AI solves two persistent problems with discovery: it typically takes too long, and it’s expensive.
To illustrate the benefits of AI for document review, imagine that in-house counsel for Company A receives a few thousand documents relating to pending litigation regarding an order of botched goods. Company A’s attorney specifies terms of interest along with relevant documents for the company’s AI to review. The AI scans through thousands of records within seconds and provides the attorney with the necessary information to build a case. With the help of AI, Company A drastically lowers legal costs and quickly drafts a claim to recoup damages and mitigate further losses.
Attorneys have used text retrieval for legal research for decades. Companies such as Westlaw and LexisNexis provided foundational online legal research tools. AI enhances these traditional search methods.
Searching for applicable case law is tedious. General search terms can yield thousands of case results, proving useless to a busy attorney. AI improves searches because it learns what an attorney needs. The more data and information an attorney provides to narrow the scope, the more the AI tailors the information. Instead of 1,000 possible cases that could contain applicable precedent, the AI may provide the attorney with a handful of the most relevant cases. Plus, AI can continue the search even after the initial inquiry. It’s similar to having a legal assistant researching for a client day and night.
For example, imagine Company A sues a manufacturer for failure to deliver conforming goods. Attorneys for Company A provide their AI with important terms and applicable facts and request a list of relevant case law. Not only does the AI deliver past cases on the subject, but it automatically provides updates and further research as it’s published. This intuitive retrieval process is the cornerstone of how AI transforms legal research.
Artificial intelligence serves as an invaluable tool for attorneys to manage their workloads and protect the best interests of clients by being able to review more documents in less time, and with greater accuracy.
Due diligence can vary widely in its breadth and depth. Generally speaking, it’s a time-consuming process of gathering documents, relevant data, communications, and other vital information. Once assembled, attorneys must painstakingly review each document and search for language in those documents that effectively prohibit a transaction from proceeding forward, or that state that certain consents are required, among other things. Attorneys can use or customize AI to search provided documentation and information, extract key points, and organize everything for thorough review. They can cut contract review time by up to 60 percent by using AI, according to research by Kira Systems.
For attorneys who regularly deal with large volumes of contracts, contract management is a must. Artificial intelligence provides a fast and efficient method to organize, track, and negotiate contracts. AI collects data over time to help attorneys draw conclusions, create future contract strategies, and discover new insights within the contract terms. AI software provides attorneys with more confidence in contract negotiations and leads to better outcomes for clients.
For example, imagine an attorney for Company A would like to request a change to the current commission rate during the next contract renewal with Company B. The attorney provides the AI software with access to past contracts associated with Company B. The AI then provides an accurate prediction of whether Company B will approve the requested change.
AI can also help attorneys predict the amount of time it will take a counterparty to approve a contract. The timing of contract approval can significantly impact a businesses’ overall strategy. AI can provide unprecedented accurate estimations from contract creation to close.
For example, imagine Company A needs to decide whether to ask for a modification of a clause in a contract with a manufacturer. Company A’s attorney uses AI to analyze the change and provide Company A with a time estimate for approval due to the added request. The AI assigns cost values to extensions of time to allow Company A to weigh financial penalties against further negotiations. AI provides Company A with sophisticated insights to enable their attorneys and managers to assess whether additional requests would be worth the estimated delay.
Some of the most common questions clients ask attorneys are, “Do you think I would win this case if it went to trial?” and “Should we settle? How much is reasonable?” Attorneys draw conclusions based on their years of experience in litigation and their knowledge about the local judges and opposing counsel.
Artificial intelligence takes prediction to the next level. AI can analyze similar cases with similar facts and provide a statistical analysis to predict litigation outcomes accurately. This tool allows attorneys to confidently advise clients on how and if to move forward with litigation.
For example, imagine Company A is contemplating whether to settle in mediation regarding a suit against Company B. In-house counsel for Company A uses AI legal software to weigh their options. The attorney discovers that with the current facts, Company A has approximately a 55 percent chance of winning at trial. Because of the risk of a negative impact on public relations and the small chances for a win at trial, Company A accepts a settlement, which saves their business tens of thousands of dollars in legal fees.
But is AI accurate with litigation outcome prediction? A London law firm used the data of more than 600 cases over a year to predict the viability of several personal injury cases. And artificial intelligence beats human experts in predicting the outcomes of Supreme Court cases.
Artificial intelligence is transforming the legal profession and the practice of law. Some people fear it will eventually replace attorneys. But AI legal software produces the opposite effect. It has the potential to help lawyers fall in love with their careers all over again while saving time and money in the process.
By automating repetitive tasks, lawyers can focus on higher-thinking and more complex operations of their practice. Attorneys may be able to say goodbye to long hours spent reviewing documents. They can spend more time with clients and devote more energy to formulating arguments and strategic planning. For the legal profession, the implementation of AI is a victory for everyone involved.
Written by: Rachel Vanni
The Importance Of Good Legal Advice When Doing Business In Nigeria Today – Morenike George-Taylor
Morenike George-Taylor, Group Managing Director of the Flux Group (Image: Morenike George-Taylor)
Every business owner and consultant knows that taking into consideration, COVID -19 lockdowns, END SARS protest, the twitter ban and the rate of the dollar to the Naira, business in Nigeria has been a roller coaster between 2020 and 2021. Business owners had to learn a lot of things and I hope to share them in a series of articles. However, I want to emphasize the importance of good legal advice when doing business in Nigeria. Simply put… it is critical.
Once the COVID-19 lockdown happened, it was a shock to everyone that we could all put our businesses on hold and be forced to work remotely. Zoom became more popular and it became more difficult to physically sign documents. People started using electronic signatures to sign their documents. The question is whether under Nigerian law, an electronic signature is as good as a physical signature. If someone appends an electronic signature to a document, how can you be sure it is their signature? How can you be sure that they wouldn’t deny that signature later on?
More legal issues arose with END SARS, more people had to look into what their insurance contracts cover and do not cover. With the rate of the dollar, loan agreements where businesses collected international funding went awry. A $100,000 loan given in 2019 and repayable in 2021 was now significantly harder to repay and businesses explored whether the drastic rise in the exchange rate was enough to constitute force majeure.
In the midst of all this, those with good lawyers were able to navigate the troubled waters and find solutions even where they were in between a rock and hard place. Those without good lawyers made mistakes that cost them a lot of money. A lot of businesses folded up because they were unable to survive. This is why I have the following tips:
- Always read legal documents before you sign them.
- Pay attention to the exclusion clauses in your insurance contracts.
- Only accept electronic signatures from trusted clients whose signatures you can confirm.
- Pay attention to force majeure clauses in loan agreements you execute and be careful and consider all mitigating and hedging products that can help when receiving loans repayable in foreign currency.
- Put everything in writing, agreements, orders, receipts and so on.
- Get a good lawyer on retainer.
We are all trying to survive and build thriving businesses. I hope these tips save you a penny or two as you run your business.
Article by: Morenike George-Taylor
South Africa: Guidance issued on mandatory vaccination policies for the workplace
South Africa: After months of speculation, the Department of Employment and Labour in South Africa has provided guidance in relation to vaccination policies within the workplace. On 11 June 2021, the Minister published an amendment to the Consolidated Direction on Occupational Health and Safety Measures in Certain Workplaces (Directive), which makes provision for employers to implement a mandatory vaccination policy in its workplace.
Implementing the policy
Before an employer implements such a policy, it must undertake a risk assessment within 21 days of the Directive being published, i.e. by 2 July 2021. This risk assessment must:
• take into consideration the employer’s operational requirements;
• indicate whether it intends to implement a mandatory vaccination policy;
• identify which employees it will require to be vaccinated based on the risk of acquiring COVID-19 at work, or the risk of severe COVID-19 symptoms due to the employee’s age or co-morbidities; and
• be conducted in accordance with section 8 and 9 of the Occupational Health and Safety Act, which places a duty on the employer to maintain a working environment for its employees and other persons that is safe and, as far as reasonably practicable, free from health risks.
Developing a plan
The employer must then develop a plan which sets out the measures it will implement to ensure the workplace is safe for its employees. This plan should indicate whether the employer intends to make the vaccine mandatory for any employees, and must identity the employees who will be required to be vaccinated, the process which will be followed to ensure compliance with the Directive and whether the employer plans to make the vaccine mandatory as and when it becomes available to employees. Any employer who is of the opinion that the vaccination of its employees is necessary for their health and safety may implement a mandatory vaccination policy. The employer’s risk assessment should, however, support this requirement and indicate that there is a legitimate need for the workforce to be vaccinated.
Right to refuse
The Directive sets out guidelines to employers when drafting and implementing a mandatory vaccination policy. In terms of the guidelines, importance is placed on “public health, the constitutional rights of employees and the efficient operation of the employer’s business.” Where an employer makes vaccination mandatory, it must notify each employee identified in the plan that such employee must be vaccinated as and when the vaccination is available to them, and that the employee may consult with a health and safety worker or trade union representative, should the employee wish to do so. Further, the employer must inform the employee of their right to refuse the vaccine on medical or constitutional grounds. These grounds are specified in the guidelines and makes provision for an employee to refuse the vaccine on the medical basis of a “contra‑indication” of the vaccine (i.e. an allergic reaction to the first dose of the vaccine or to a component of the vaccine), or the constitutional basis of the employee’s right to bodily integrity and/or right to freedom of conscience, religion, thought, belief and opinion, as set out in section 12 and 15 of the Constitution.
The Directive prescribes that where an employee does raise one of these objections, the employer is required to counsel the employee, refer such an employee for a medical evaluation for any allergic reaction to the vaccine and, where necessary, reasonably accommodate the employee in accordance with the Code of Good Practice: Employment of People with Disabilities, as published in terms of the Employment Equity Act. Such reasonable accommodation may include allowing the employee to work offsite, at home, in isolation at the workplace, or in limited circumstance, the employer may require the employee to work with a N95 mask.
Where an employer does implement a mandatory vaccination policy and an employee refuses to be vaccinated, the employer must ensure that the grounds for refusal are considered fully and that the employee is consulted in relation to the grounds raised. However, should the employer be unable to reasonably accommodate the employee and the employee continues to refuse to be vaccinated, an incapacity procedure must be followed before the employer may terminate the employee’s contract.
Paid time off
In terms of section 4(1)(k) of the Directive, employers must give employees paid time off at the date and time of their vaccination, regardless of whether such vaccination is in terms of a vaccination policy or not, and sick leave must be used should an employee experience any adverse side effects from the vaccine. An employer may request proof of the vaccination when returning to work, or proof that the vaccination will take place during working hours. Where an employee is vaccinated in terms of the mandatory vaccination plan, the employer must afford the employee paid time off for adverse side effects of the vaccine, even if the employee has exhausted their sick leave entitlement. Alternatively, the employer may lodge a claim with the Compensation Fund, in terms of the Compensation for Occupational Injuries and Diseases Act. In addition, the employer should organize transport to and from the vaccination site, if possible, for employees identified in the mandatory vaccination policy.
In order to comply with the Directive, employers must update their risk assessment of the workplace, taking into consideration any employees who are required to be vaccinated. Employers must take notice of the timeframe afforded by the Directive and ensure that the plan is in place before the 21 day period has lapsed. It is important for employers to conduct the risk assessment objectively and determine the actual need for vaccinations in the workplace and amongst certain categories of employees. Further, any objection raised by an employee should be considered seriously and the employer should try to accommodate such employee where possible. However, the employer may dismiss the employee for incapacity as a last resort.
By Kirsty Gibson, Associate, and Johan Botes, Partner and Head of the Employment & Compensation Practice, Baker McKenzie Johannesburg
Developments in competition law in post-pandemic Africa
Image Credit: Getty Images/iStockphoto
With the growth of economies across Africa, competition law has remained one of the key drivers for effective market participation, consumer protection and fair business practices. However, the global pandemic introduced new challenges for competition authorities in Africa and abroad, with each enforcer pursuing the most beneficial enforcement method for its national or regional jurisdiction.
According to Lerisha Naidu, Partner in Baker McKenzie’s Competition & Antitrust Practice in Johannesburg, “These efforts were aimed at curbing the persistence of unjustified price hikes, anti-competitive cooperation between competitors and other harmful business practices that sought to undermine competition. In addition to the urgent responses to the unprecedented impacts of the global COVID-19 crisis, competition authorities in countries and regions across Africa continued to introduce new laws and amend existing legislation as a sign of the rapidly increasing prioritisation of competition law enforcement on the continent.”
Competition authorities across the continent had already established strategies for maintaining competition and limiting instances of customer exploitation in their respective countries by early March 2020.
“Competition authorities in Kenya, Malawi, Mauritius, Namibia, Nigeria and South Africa reacted quickly to pandemic impacts by introducing new guidelines and regulations,” noted Angelo Tzarevski, a senior associate in Baker McKenzie’s Competition Practice in Johannesburg.
Amendments to existing laws
Various jurisdictions have recently strengthened their competition law regimes by way of amendments to the existing legislation or by introducing entirely new laws to facilitate their enforcement efforts.
“For example, Botswana’s Competition Act came into force at the end of 2018. Kenya recently introduced a host of new laws, guidelines and rules that relate to buyer power, the valuation of assets in merger transactions, block exemption of certain mergers from notification, merger thresholds and filing fees, market definition, and new guidelines for the determination of administrative penalties. Ghana’s Draft Competition Bill is currently before parliament awaiting passage into law, and Egypt and Mauritius amended their competition legislation by introducing or giving effect to new provisions and regulations. In South Africa, price discrimination and buyer power provisions that were previously introduced by the Competition Amendment Act have since come into effect. Regulations were also issued to facilitate the interpretation and application of these provisions,” said Tzarevski.
In addition to country-specific regulation, a number of regional competition regulators in Africa are impacting domestic markets. Such regulators include the West African Economic Monetary Union (WAEMU), the East African Community (EAC), the Common Market for Eastern and Southern Africa (COMESA), the Economic Community of West African States (ECOWAS) and the Economic and Monetary Community of Central Africa (CEMAC). While not a regional regulator, the African Competition Forum, an association of African competition agencies, promotes competition policy awareness in Africa and the adoption of competition policies and laws. The Forum also facilitates regular contact between authorities, creating a platform for the sharing of best practice and domestic competition trends.
“African competition law continues to develop at a rapid pace, boosted by the implementation of protective strategies necessary during the peak of the pandemic. An increasing number of jurisdictions have adopted laws and regulations, established authorities, secured membership to regional antitrust regimes and ramped-up enforcement of suspected violations of prevailing competition laws at both domestic and regional levels.
As such, organisations transacting across borders in Africa must ensure they are compliant with a myriad of local and intersecting regional competition laws to avoid facing the wrath of the continent’s competition authorities. Access to standardised, cross-border information on the latest competition law developments in Africa has become essential for those transacting in the region,” added Naidu.
Baker McKenzie recently produced a comprehensive guide covering the latest developments in African competition law in 25 countries across the continent – An Overview of Competition & Antitrust Regulations and Developments in Africa: 2021
By Angela Matthewson for Baker McKenzie Johannesburg