Law society published some guidance recently on… - some thoughts and comments...
👁‍🗨 Witnessing...they conclude that witnesses have to be "physically present" and you cannot witness somebody by video link. Probably correct as a matter of case law. It's a shame they aren't more forceful in their urge for change here...
The point in witnessing has always been evidential. So that if one person claims they didn't actually sign a document, you have somebody you can call upon to attest evidence that they did or did not. Also adds some formality to the process to make people think
When you're using e-signature, people's email addresses are being put into a system. You also have IP addresses, geolocations, timestamps all recorded when people actually go on to sign the document. Doesn't this add quite a lot of evidential value?
Physical presence would help avoid a scenario where somebody gains access to somebody else's email account, signs a document and then gets somebody to witness. If that witness were virtual, they wouldn't see the mischief that has this not quite a remote risk though?
I'd love to have seen people go further and conclude that with e-signature platforms, witnessing is only really a secondary form of evidence and we should consider ditching the requirement altogether when e-signatures are used...probably issues there outside the commercial world
🔐 Digital certificates..."[an e-signature platform] is evidentially strong as it is secure, resilient to fraud, and typically generates a tamper-proof completion certificate containing the signing information at the end of the process"
There still seems to be loads of people trying to encourage the use of QES and AES in commercial transactions because it increases security...personally I am completely against that, for two reasons...
First, in #biglaw transactions (different in other contexts perhaps, but am still doing research here), evidence has never been a problem. I've never come across a signatory who refutes that they signed a document...probably because law firms get client sign offs before release
Second, documents often require many many signatories, and documents are negotiated right down to the wire under huge time pressure. It's not always practical to wait until the document is final before sending through an e-signature platform... most of the time, all people want is a way of *collating* signatures and running the signing *process* more efficiently, rather than having more evidential weight to solve a problem they don't believe exists...
Third, it's too much for people to get their heads around. Some jurisdictions require QES and AES. Whenever I have explained what this means and how to do it through a platform, they usually say "sounds too complicated, I'm just going to do pen and paper". I don't blame them.
✍️ Methods of signing. It is GREAT that the report talks about other ways of signing other than e-signature platforms. You might not actually need the powerhouse of an e-signature platform if you don't do signings that often
Too often I find people think e-signature = DocuSign = e-signature. That's not the case. There are other ways of doing e-signature, like using an iPad, using built in tools in PDF Readers etc. Those might do the job perfectly well.
🖇 Process. This was a great opportunity for the law society to lay out best practice when using e-signature platforms and answer the more practical questions. Most law firms have probably got their heads around the legal issues of e-signature by now...
What lawyers are crying out for is guidance on how to use the tools available...what kind of situations require an e-signature platform? can you date things through an e-signature platform?
...what if you need to make small amendments to the PDF afterwards, and corrupt the digital certificate? Does one law firm take control of the platform, or does everybody use individual platforms and combine into one afterwards? (etc).
These are the real questions that bother people, and a lack of answers to them leads to a lack of adoption of e-signature technology. And usually it's a "lowest common denominator" kind of issue, where it only takes one law firm in the process to raise a silly query...
Lots of room for improvement here and collaboration between law firms in terms of how they conduct signings and closings in practice...hopefully we will see a bit more of that to give comfort to the individuals who have to actually run signing processes on the ground...

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More from @jackwshepherd

6 Nov 20
1. Innovation is not all about you using Google Docs instead of Word, or Slack instead of email

2. Even if it was, getting Google Docs or Slack is not the hard part. Unearthing long-standing processes and adapting them to fit with those new tools is the hard part
3. Innovation is about looking way beyond "tools" and thinking about how you can be a better business regardless of snazzy tools

4. So the first step is to think of "how can we be a better business?". More profit? Better culture? Probably lots of things. Name them. Discuss them.
5. Then you ask, "how can we achieve a business goal, and how will we measure it?". Then go on a hunt and find pockets of the business where you can start doing stuff

6. You'll find out LOADS AND LOADS as you start doing stuff. Doing stuff is the best way to find out things
Read 10 tweets
4 Nov 20
Still some law firm partners joining webinars as innovation experts even though their experience is really on advising tech clients, not instilling change in a law firm. It’s GREAT when they do u/s these things and can combine their legal skillset with product/change/etc skills
Also it’s fine if they don’t have those skills, everyone should still speak up about their thoughts. My issue is more acting as if they are experts on everything and not having an understanding of the real issues at play (and not knowing they don’t have that understanding)
It’s always very obvious when this is the case...ppl think innovation is “telling IT to give me access to Google Docs”, talking as if tool = innovation, and not even mentioning the underlying business model of #biglaw firms
Read 5 tweets
9 Aug 20
I hope that at some point in the future, we "componentize" legal documents. What I mean is: move from one huge document to lots of smaller documents that collectively make up the document. I've had a fun day playing around with this in @obsdmd
I firmly believe that we won't (and probably shouldn't) be switching away from Word anytime soon. I also believe lawyers need to use Word properly before more sophisticated tools are developed. My opinion: for complex contracts, lawyers do not want anything other than Word
But in the midst of a heat wave on a Sunday afternoon, that doesn't stop me wondering what the future could hold...
Read 16 tweets
5 Aug 20
Had some interesting discussions this week on things lawyers often miss when using Microsoft Word. Here are some things I think are pretty important that most people don’t know about
This is probably teaching the legal tech community to suck eggs. But just want to make the point that the reaction I usually get when I tell people about these is, “oh wow that’s clever”. That’s where most are at
1️⃣ Split window view. You can have two windows open for the same doc and scroll them independently. Definitions (start of doc) on the left, clauses etc on the right (middle of doc). Means you don’t flick back and forth all the time
Read 9 tweets
24 Jul 20
It’s been an interesting few months for e-signatures in law. Just my opinion: none of the platforms are yet in a place where they really cater well “out of the box” for transaction signing processes run by law firms. Anybody looking at this area I welcome your thoughts
1️⃣ First and foremost, a signing process is a mission critical thing for lawyers. Once we trigger the signing process, things become pretty urgent and people get scared. Responses need to be snappy where people are having technical issues
2️⃣ Many transactions involve 100s of signatories in different time zones. Often documents need to be executed at a specific time. We can’t wait to trigger the process until the document is fully ready. People need to get signatures in advance + delegate authority to release
Read 22 tweets

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