Article published on 8th April 2020. Written by Mark Tyndall, VP, Markets & Growth, APAC at Neota Logic
While trivial compared to the significant human and economic costs of the COVID-19 pandemic, lawyers are facing several practical challenges flowing from the closure of business premises, clients and colleagues working exclusively from home, and requirements for us all to remain physically distanced from one another. One particular example of these challenges is the inability of lawyers and clients to meet in person to sign and witness documents.
Australian legislatures and courts are already beginning to respond to this specific problem. For example, the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 No 1 (NSW) commenced on 25 March 2020 and facilitates the making of regulations to temporarily alter arrangements for the signature, witnessing and attestation of documents in New South Wales. Separately, the Federal Court of Australia issued the first version of Special Measures Information Note (SMIN-1) on 23 March 2020 and an updated version on 31 March 2020, setting out arrangements which minimise in person attendance on Court premises, relax requirements for physical signatures on documents, and permit unsworn affidavits to be filed with the Court.
The special measures in place at the date of this article do dismantle some of the immediate barriers to progressing matters coming before the Federal Court. But the temporary relaxation of formalities, rather than discussing and developing new ones, raises important questions for those thinking about the design of legal services:
- How can we do better than having a signatory type their name into a Word text box, as the stopgap means of ‘signing’ a document?
- How do we manage the risk of having hundreds of unsworn or unwitnessed documents out in the world or filed with the Court, and know with confidence that we are keeping track of each one?
- How will we manage the process of having each document properly signed and witnessed, as physical distancing requirements are gradually relaxed?
- How do we redesign our services to deliver a better client experience and make life easier for our legal teams, over and above the discharge of our obligations to the Court?
How do we get started?
There is no single answer to each of these questions, and answers may vary significantly from one practice to another. The issue of signing and witnessing documents will also only be one of many challenges you are facing, meaning that we need a framework for tackling each at the appropriate time.
The purpose of this article is to highlight a few of the very many service design exercises you could begin right now. These will inevitably help you achieve better solutions for the Court, your clients and your team on any given challenge to legal service delivery in the time of physical distancing.
Listen to your clients
Particularly in this new and relatively unfamiliar operating environment, it’s critical that you ask your clients what will make their lives easier or better, and listen to the answer. What are their key needs and concerns at this moment? How do they want to communicate with and exchange documents with you? Think critically about how deeply you listen during these conversations. It can be confronting to Google ‘levels of listening’ and read about what we are missing when we stick with established habits and patterns when it comes to conversations with others. Give it a go, and I would be keen to hear if it provokes a change in how you have your next client conversation.
Map the current process
Find a basic, free process mapping platform (I use draw.io) and use a ‘swim lanes’ process map template to set out what your current process looks like. Include all of the key people, and give each their own swim lane. Processes, tasks or actions appear in their own rectangle, and decisions and branching points for alternative sub-processes appear in diamonds. Replay a range of previous real-life matter scenarios against what you have mapped, to ensure you have captured the value of everything you currently do, along with the moments of friction. In the example of taking an affidavit, this would include anything from drafting and reviewing the substance of the affidavit, the several emails, phone calls or meetings with the client and your colleagues, discussions and decisions about the logistics for taking the affidavit, people travelling to and meeting at a place, the signing, and everything your team might do with the affidavit afterwards such as filing it with the Court, serving it on other parties, or storing it in your firm’s document management system.
Design the thing that will truly help the Court, your client and your team
Having listened to your client and thought about what best assists the Court, map a process that solves for the challenge. The new process might save you and the client more time, reduce the risk of errors and delays, support greater levels of trust in an unsworn affidavit, or anything else that you consider will best achieve the Courts’ and you and your clients’ fundamental goals. It will help to reflect carefully on each action or decision in the existing process, and the fundamental reasons for it having existed and been done a certain way in the past. It can sometimes be confronting to identify waste, inefficiency or risk in something we have repeated hundreds or thousands of times in the past, or even just to realise how habit-bound we are. Use this as an opportunity to engage with your clients about how you are constantly improving the services you deliver. They will appreciate the effort and the value you end up creating for them.
Use workflow automation technology where it will make a difference
Once you have your new process, identify the decisions and actions that can be taken by technology. Taking the affidavit example, you can use a no-code automation platform like Neota Logic to automatically trigger the email to the client with signing instructions and the affidavit attached, to offer the client trustworthy electronic signature capabilities such as DocuSign or OneSpan Sign, or to automate follow up emails when the client or someone in your team hasn’t taken an action in the recommended time. Intelligent workflow can serve the affidavit on other parties, generate dashboards to track status and key performance metrics like turnaround times at a document or firm level, identify in real time where process bottlenecks are appearing, and ensure nothing falls between the cracks. It can also, amongst whatever else you decide to build, schedule face-to-face meetings to have signatures witnessed once physical distancing requirements are relaxed and the Court’s interim measures fall away. At that point, you might find that you don’t want to go back to exactly how we did things in 2019.
This article is a call to action for lawyers to redesign key aspects of our services, and to start now. It’s a prompt to think critically as we are confronted by status quo ways of working that have become impractical. It’s a reminder to go back to basics to understand and articulate the problem that you are trying to solve. It’s encouragement to learn how to use a basic process mapping tool, and to set out how the current process works and how it should work in the future. It’s a reminder that you absolutely must ask your clients if what you are proposing is something they actually want, and when they inevitably say no the first few times, that you listen carefully and trust that they understand their own needs.
A number of lawyers these past couple of weeks have been pondering and debating the timing for getting our interactions with the Court and our clients back to normal. It’s up to you and what you design in the next few months, to make sure that we never do.
If you are interested in learning more about intelligent workflow or discussing legal service design, request a demo of the Neota Logic platform or ask us about the Neota Logic Design Thinking Academy.