NIA CHARLESTOWN NEVIS (September 18, 2018) — The following is a speech delivered by Hon. Mark Bratley, Premier of Nevis and featured speaker at the Organisation of Eastern Caribbean States (OECS) Bar Association’s Gala at the Park Hyatt Hotel in St. Kitts on Saturday September 15, 2018, during the 15th Regional Law Conference.
Ladies and gentlemen good evening.
Please permit me to adopt the protocol so ably established by the Master of Ceremonies Charles Wilkin, QC.
I ask for this concession on two broad bases. The first is that little is gained by repetition, a lesson I learned the hard way as a young practitioner, pressing a bad point before former Justice of Appeal Dennis Barrow. The second is that I am well aware that, having eaten, Caribbean people favour brevity over prolixity.
Permit me however to highlight and acknowledge the presence of His Excellency Sir Tapley Seaton our beloved Governor General, our Prime Minister Dr. the Hon. Timothy Sylvester Harris, our honoree this evening Sir Dennis Byron and Lady Norma, honorable members of the Eastern Caribbean Court of Appeal, honorable members of the High Court, honorable members of the Federal Parliament, including our Attorney General Hon. Vincent Byron Jr. and Mrs Byron, Leader of Her Majesty’s Loyal Opposition Dr. the Hon. Denzil Douglas, President and members of the Organisation of Eastern Caribbean States (OECS) Bar, visiting judges, lawyers and members of the local inner and outer Bar.
Let me also for good order note the presence of the third in the troika of Byron brothers and legal luminaries Terrence Byron.
I am so happy to be here. A few years ago, I was a practicing attorney and quite enjoyed the cut and thrust of legal argument. Then, like Saul on the road to Damascus, I had an epiphany. That epiphany caused me to take a vow of poverty and enter politics – 4,479 days 22 hours and exactly 40 minutes later I am still wondering what happened.
To be honest being here is like coming home. You see in politics we speak hoping for votes. In law we speak seeking justice but hoping for fees. Since there is no security of tenure in politics, I have tried to keep my bar membership current just in case.
I am not surprised then, by the wisdom of my dear friend Justice of Appeal Mario Michel who left the hurley burly of politics for the far more sedate and dignified existence as a member of the judiciary. And yes I am well aware that some might argue that he has nevertheless taken a vow of poverty of a different kind but that is a speech for another time.
Tonight I have been asked to speak to you on the topic: “The Tech Revolution: A Threat to the Core Values of Civil Society and of the Legal Profession?
1. In his opening speech during the first session of President Barack Obama’s very own Obama Foundation Summit, the former United States President reflected on some of the core values that emerged as he developed a social conscience. He listed three of those values which, he confessed, were instilled in him by his mother: “Be kind and be useful and caring about people who are less fortunate than you, be a peacemaker rather than an instigator and try to lift people up instead of putting them down.”
Undoubtedly, none of the virtues adverted to by President Obama or others such as “fairness, honesty, dignity, respect, giving hate no safe harbour”, as enunciated by Former Vice President Joe Biden in his eulogy for the late Senator John McCain are new concepts.
In the OECS, as in the world at large, good parenting mandates that values are taught to children at home from a very tender age and reinforced in our schools, places of worship and in the wider community. In Hanleys Road, Gingerland and later Brown Hill, Nevis, where I grew up as a child, values such as being your brothers’ keeper and patriotism were pervasive.
Yet, with the integration of social-media into our daily lives, emanating from the overwhelming accessibility to technology, humanity seems to be encountering a challenge sustaining fidelity to these core values.
I am confident that all of you here apprehend what the term “cyber-bullying” means or at the very least have heard of it before. That this new concept even exists, is evidence of technology’s emergent role in achieving the irretrievable breakdown of the marriage between ourselves and the virtues which have been the bedrock of our communities.
In February of this year, a British Broadcasting Corporation (BBC) article indicated that almost half of 1,089 young persons questioned for a Safety Net survey “had experienced threatening or nasty social media messages, emails or texts.” A quick search on the World Wide Web reveals numerous other reports with figures just as dismal as that. In a prior article by the same news agency in which research from anti-bullying charity Ditch the Label was referenced, it was noted that out of 10,000 persons between ages 12-20,“One in three said they lived in fear of cyber-bullying…”
Psychologist Susan Swearer, co-founder of the Bullying Research Network in the United States of America (USA) in an article addressing the issue of cyberbullying posited that, “People are more likely to write horrible things when they think they’re being anonymous”.
This sentiment clarifies precisely why social media sites such as Facebook and Instagram, Tumblr and Twitter, with the plethora of ways they allow anonymity to be achieved, are ideal breeding grounds for cyberbullies and are being employed to flagrantly disregard values like kindness and a firm rejection of promulgating hatred for others.
What is worse is that the deficit of kindness unveiled via the internet is not the sole province of strangers with devious intentions targeting others for their own amusement. Increasingly, we have seen an intensification of situations where estranged couples use the internet to humiliate their former partners following a breakup.
In 2014, a young lady who appeared in court as Jane Doe, sued her ex-boyfriend for distributing on social media websites eight explicit images she had sent to him via social media while they were dating.
Earlier this year, the court returned a verdict in her favour and she was awarded US$6.4 million. Jane Doe’s attorney, as cited by the New York Times article covering the story, said, “We expect that this judgment will send a clear message that victims of revenge porn suffer serious injuries that are worthy of redress, and hope that it helps deter future harms.”
Closer to home, in Trinidad and Tobago, in the case of Therese Ho vs Lendl Simmons (yes that Lendl Simmons of West Indies cricket fame), an action was brought for breach of confidence, after nude pictures of the Claimant sent to the Defendant via WhatsApp for his private use while the two were a couple, were shared by the Defendant with other individuals without the permission of the Claimant.
The Court found the Defendant to have breached the Claimant’s confidentiality and was motivated by a desire to cause her upset, embarrassment and distress.
Finally, right here in St. Kitts and Nevis, in context not on all fours with the two previously cited cases but in which the principle was similar, there has been a movement towards remedies where breaches occur on social media platforms.
In Jovil Williams, Jason Campbell and the Attorney General of St. Christopher and Nevis and Chief of Police, a claim was pursued for breach of constitutional rights when there had been misuse of private information where Police Officers who had obtained sexually explicit video through an illegal search of an individual’s mobile phone, shared the said video via social media.
Ultimately, the Government was held vicariously liable for the acts of those Police Officers and damages were awarded in the significant sum of EC$500,094.00 dollars collectively.
The aforementioned cases, and comparable situations that may never see the light of a court room are demonstrative of how technology is being abused and in so doing how we disregard values such as kindness, care and respect for others.
Beyond cyber-bullying and revenge, pornography with their common denominator of personal attacks, the tech revolution is also a catalyst for the degradation of the core values of civil society from a political perspective.
As a politician, I am all too aware of how technology has expanded the reach of those who wish to disseminate false information, or “fake news” to further their political agenda.
The problem of disseminating information without first having verified its accuracy is quite common in St. Kitts and Nevis, regardless of whether the motive is noble or mischievous.
Just days ago, I was told that a blogger with a significant social media following posted a status which read, “Tim giving 9 percent raise for Independence and a Double Salary for X-mas!” “Tim”, by the way, is the Prime Minister of St. Kitts and Nevis, the Honourable Dr. Timothy Harris.
TRANSITION TO POINTS ABOUT THE LEGAL PROFESSION
From time immemorial, lawyers have had a monopolistic hold on the legal services market. After years of arduous studies, we jealously guard our field of practice. The preparation of legal documents, the research of law, the provision of legal advice and advocating on our clients behalf were the tools of our craft which we declared were our specialist skills and therefore sacrosanct. Our hold on the market has not been without contention.
For years we have been accused of being inefficient, unresponsive but yet excessive with our fees for service. I am sure you have all heard the joke of the advocate who at 40, submitted billable hours which combined should have made him a man as old as Methusela. With such accusations lying against us, it’s only natural that the market would be open to a more cost effective alternative.
Whilst such an alternative seemed like a mere hope, the impact of the tech revolution on the legal profession makes such an alternative a very real possibility. As we have seen in nearly every other sector in the world, technology and technological advancements have become both an ever present help and a threat to the workers of that sector. Technology has been a tremendous help to us as attorneys here in the Eastern Caribbean.
None has been as strong an advocate for greater use of technology than, Sir Dennis Byron, who sits here among us tonight. This global legal giant has ensured the use of technology to our advantage, as he endeavoured to modernize the court system both here in the OECS and at the Caribbean Court of Justice.
However, whilst we have seen technology’s benefit, many are of the belief that the threat of technology looms in the shadows of our practice. The international accounting giant Deloitte, in the article “Objection Overruled; The case for disruptive technology in the legal profession” has estimated that within the next 20 years, 114,000 legal jobs within the United Kingdom (UK) alone will become automated.
Whilst 20 years may seem like a lifetime away, investment into the automation of several areas of our practise has already begun. In June, JP Morgan started implementing a programme called COIN, which is short for Contract Intelligence. COIN runs on a machine learning system that’s powered by a new private cloud network that the bank uses.
Apart from shortening the time it takes to review documents, COIN has also managed to help JP Morgan decrease its number of loan-servicing mistakes.
According to the programme’s designers, these mistakes stemmed from human error in interpreting 12,000 new wholesale contracts every year.” Through the use of this technology, JP Morgan has seen the review of loan agreements move from a time of 360,000 hours to merely seconds. Whilst the efficiency of such software is exemplary, I thank God that I am now in government as I cannot fathom the day my billable hour becomes a billable second.
Now many of us are thinking that this example of the tech revolution is in the United States and the United Kingdom where firms charge millions of dollars to their clients and have a plethora of documents to review for every transaction that the implementation of such technology is understandable.
As such, we all question whether the implementation of said technologies in a small jurisdiction like St. Kitts and Nevis or elsewhere within the OECS which is unlikely to have 360,000 hours of legal work to be done on a file would ever be viable.
However, the tech revolution does not discriminate and can affect small jurisdictions and large jurisdictions alike. One only needs to look to the divorce application process within the United Kingdom. Through a simple online application, the petition for divorce is effectively filed and heard without the need for legal advice from an attorney.
The courts in Singapore go a bit further as they allow for small claims to be filed online without the use of an attorney and also allow for the matter to be assessed online prior to its filing to determine whether or not the proposed claim should be brought.
As I have said earlier, the tech revolution does not discriminate and whilst the examples I have used touched largely on the solicitor or the non-contentious aspects of our practise as attorneys, the tech revolution is knocking loudly on the doors of litigators and the process of litigation as well.
Recently in Mumbai, the Bombay High Court ruled that service of notice about litigation through popular messaging service WhatsApp was valid.
Justice Patel observed that a credit card defaulter who was evading the bank had not only received the notice of action in a PDF file but had also opened the file and read the contents. It seems the Defendant kept evading service by shifting rental accommodations but the blue ticks on WhatsApp confirmed he had received and read the notice.
The Information Technology Act in India, which recognizes electronic communication as evidence, allowed papers to be served via email.
Indeed, a Deli Magistrate this year allowed a woman to serve a summons in a domestic violence case on her estranged husband in Australia via WhatsApp. The court ruled that the double ticks on WhatsApp showed that the summons had been delivered. Anecdotally, I suppose that many bent on evading service might now disable WhatsApp on their phones.
A 2016 study by University College London and the Universities of Sheffield and Pennsylvania, developed Artificial Intelligence (“AI”) by replicating judges’ reasoning in European Court of Human Rights judgments. AI could predict the outcome of cases with a 79 percent success rate.
This, however, is not the only technology of its kind. Premonition is an award winning software that uses artificial intelligence to analyse various data, including the win rate of lawyers against different judges and success rates for legal submissions.
From what I understand, this software analyses the history of the lawyer and his arguments before a specific judge, how the judge usually rules in cases in the specified field and determines the likely outcome.
Now imagine, if you will, a world where even before we can charge a client for work the client can use software to determine whether or not we will win in front of Justice Williams or Justice Ward QC. Imagine you, a senior practitioner learned in the law, now being told by a novice with an app, the chances of your success.
The word “disruptive” is being used nowadays as the accepted terminology to overturn the usual ways of doing business in any given sector. The legal profession is and will be no exception to this tech revolution.
Ladies and Gentleman, all is however not doom and gloom and after paying so much to dine here tonight, I shan’t have you leaving this banquet with misapprehensions of the tech revolution impact on the practice of law. Whilst the tech revolution looms over us like the sword of Damocles, we must face it head on and embrace the coming changes. As every revolution takes place there are those who stand idly by and let the revolution swallow them to their peril. Conversely, there are those who hold onto it and craft the revolution to their own successes. We must choose – to be dinosaurs or to be dragon slayers.
In the mid-20th century pilots were up in arms about the advent of auto pilot technology in planes. Some predicted it would be the end of human pilots altogether. Nonetheless, decades later, pilots are still working in cockpits the world over alongside the auto piloting technology and performing at higher levels of safety and efficiency than before.
This in my opinion is the future of legal practice, if we choose to embrace the tech revolution. Just as the computer and cell phone have made our practice easier, so too will this new tech revolution.
Mundane tasks can now be handled by technology, countless hours in the library researching a point of law could possibly one day be done in seconds by a smart computer whilst we the lawyers focus on interpreting the law and providing better advice to our clients.
Ultimately as members of the legal profession you serve an increasingly discerning and sophisticated public. Technology may lead to reduced fees and reduced capacity for earning in some areas but the public of our OECS should be the beneficiaries of cheaper, swifter justice.
Technology too should certainly assist our judiciary. The complaints about delayed trials and judgments are all well known. It is a truism of some antiquity that justice delayed is justice denied. Our courts then and our Judges who man the court system have to embrace technology not as some alien concept but as an integral part of the judicial function.
Indeed, I can foresee that judges in the future will be tested as much about their knowledge of technology as about their mastery of the law and legal procedure.
Ladies and gentlemen, I close by assuring and reassuring you that the tech revolution has already and will continue to prove disruptive to our societal and legal norms. Our challenge as a legal fraternity and as an OECS society is to adapt and to embrace and bend the changes to our collective will so that our societies and this ancient profession we love can be the beneficiaries.
Thank you and God bless you.