ADLS Digital Signing Service leading the way

On the back of ADLS’ launch of its new Digital Signing Service in WebForms a week ago, we caught up with Dr David Harvey, former District Court judge and Convenor of ADLS’ Technology & Law Committee, to find out what he thinks about digital signatures generally, and the new ADLS service in particular.

Dr Harvey is well-known as a long-time proponent of using technology to maximise efficiency in life, law and business. While on the bench, he was closely involved with information technology initiatives for the judiciary, including the development of trial management software. More recently, he has directed his expertise and enthusiasm for technology’s blue-sky possibilities to the New Zealand Centre for ICT Law, of which he is the Director.

Here, Dr Harvey discusses the potential for increased adoption of technology in the practice of law and in the courts, whether digital signatures will stand up in court, what he thinks of the ADLS Digital Signing Service, and future opportunities for the application of this type of technology.

Do lawyers and courts need to consider changing their processes to better embrace the potential afforded by technology?

“In today’s digital paradigm, lawyers can’t say that technology doesn’t affect them, because it does. Everybody’s doing business in the technological space and the implications of it are enormous. Lawyers are going to have to know what it’s all about. And that may mean a bit of extra work, but it’s necessary for professional competence.

“The American Bar Association now requires lawyers practising in the technology field to have ‘technological competence’ – for example, if you’re going to be involved in an e-discovery exercise, you’ve got to know what the technologies are, what they do and how they work. Florida has gone even further – its Bar mandates 30 hours of CPD per year in technology alone.”

Should we be looking beyond technology as being a mere functional replicator?

“Technology can be used in one of two ways. It can be used to imitate existing processes, so that all that you get is a digital mirror of an existing process. Or, it can be used to allow an opportunity to innovate – that is, to transform existing work practices into something that has the same outcome, but which can potentially be more efficient. Obviously, when legal processes are involved, there are certain rules that have to be complied with, but as long as you operate within that framework, there are opportunities for doing things differently.

“For example, take what’s happened with the Electronic Documents Protocol in the High Court – what you’ve got is a digital mirror of an Eastlight folder. It has certain benefits because it’s searchable, but beyond that it’s simply an imitation. However, if the material was located in the Cloud, you could have a group of people looking at and working on it all at the same time, allowing for greater efficiency, both in time and space.

“Similarly, instead of printing out a document and lumbering through Auckland traffic to get it to the District Court or the High Court, you can now email it as an attachment directly to the Court office, with a hard copy to follow. But again, this is purely imitative, and I really think we need to get away from thinking about email as the only acceptable form of communication. There are other ways of communicating information – dare I say, Facebook or Messenger? I have a vision of a case management conference being conducted on Messenger – that would be really interesting. And the question is, why not?

“We tend to think that because a certain way is the way that something has always been done, and because it’s been approved by the courts, or it’s authorised by statute, that’s the way that we should do it. But under the former provisions of the Electronic Transactions Act, now part of the Contract and Commercial Law Act 2017 [CCLA], a whole lot of things are authorised by statute and the technology is now catching up with the law.”

Will digital signatures stand up in court?

“There is a categorical answer to that – as long as the digital signature complies with the provisions of the CCLA, then yes. The Act provides for a digital equivalent of signing a document so, as long as the digital signature or digital authentication of a document complies with those provisions, there’s no question.

“I think what ADLS has done with its Digital Signing Service – in particular, the steps it offers such as real time online identity verification, two-factor authentication, digital certificate and signing log – is excellent. It is at least as good as, if not better than ordinary signing, and probably more secure than having some random person come in off the street with a pen and witnessing a document.

“Although I haven’t been intimately involved with the project, I’ve been very impressed with the level of consultation and the approach to the work process that I’ve seen. Unlike many IT projects, there’s been a great willingness to engage and to ensure that this system is the right one, that it works, that it complies with the law, that it’s functional and easily useable – and I certainly think that has been achieved.”

What opportunities exist for extending the application of this type of technology more broadly?

“If you can get an electronically signed document or instrument, or an electronically verified transaction, before a court, and the court gives it a tick, there really is no reason why it shouldn’t be adopted in other fields of commerce.

“I think ADLS could be seen as a bit of a leader in this area. Of course, lawyers are risk-averse – we’re all trained to be that way. So, if you do get early adopters of a new technology, they are few, and they’re the ones who have to put their toe in the water. Then, once everybody else has seen that there aren’t any sharks in there, then they’ll join in.”

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