Court Forms: Confusing by Design

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You name it, there is probably a court form for it. A form for service. A form for requisitioning something. A form for confirming something. A form for costs. A form for a back page. And so on. Navigating these forms requires experience and ideally a law degree. But the increasing numbers of self-represented litigants means that our forms need to be examined. They need to be user friendly.

I have watched countless self-represented litigants struggle with understanding court forms and court processes. All the while, watching government clerks guide them through these forms. And who can blame the self-represented litigants? Does it make sense that you get the forms online, fill them in, then file the form in-person? Does it make sense that the forms do not include rules about service? Does it make sense that the way lawyers count days in Ontario is different than the way everybody else counts a day? Does it make sense that sending someone a document after 4pm equals service on the following day? Does it make sense that serving someone by email is a pain in the a**?  Does it make sense that you go to court to book a date with the court?

But the longer I interact with the system, the less absurd it looks to me. I become more and more desensitized to the structure. I become used to the confusing design of it all. Instead, it begins to look normal. Of course, you don’t count a holiday. Of course, you fax it. Of course, you file it in person. Of course, you need to have the original (even though the whole document was created electronically). Of course it takes years to resolve your claim.

But how does our court system maintain its legitimacy if it remains out of date. If it continues to cling on to paper? If it continues to communicate in legalese? If it continues to process cases slowly? If it puts civil cases on the back burner? If it continues to go on like the Internet is some kind of phase, like a moody teenager.

Why do we think that treating our courts “like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?” (Bank of Montreal v Faibish, 2014 ONSC 2178)

Luckily, it appears that our government is beginning to change things. The Ministry of the Attorney General will be launching an e-filing service in five locations on April 24, 2017.

The Ontario Bar Association announced that “Phase 1 of the service will enable e-filing of the documents required to initiate a civil action in the Superior Court of Justice, auto-issuance of statements of claim and notices of action, and online payment. The pilot will be launched in Brampton, Ottawa, London, Newmarket and Sudbury, with a province-wide rollout to commence later in the year. The second phase of the service will be introduced shortly after the full rollout of phase 1, and will enable the e-filing of additional document types.”

I eagerly await these changes. I hope that the electronic filing assists users with the confusing rules about service. Ideally by incorporating prompts about service in its design and prompts about other rules (like adding a party).

(This is not a sponsored post. Views are my own and do not reflect the views of any organization.)

Tomorrow’s Law Firm

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In The Future of the Professions Richard and Daniel Susskind state that we are starting to see technologies displace traditional ways of working. We are still in a transitionary phase between the era of the print-based society and the Internet based society. During this transitionary phase, traditional professionals working in conventional institutions will still be needed as the main interface between the lay person and the specialized knowledge. However, as we fully progress into an Internet/technology based society, traditional professionals will no longer be THE DOMINANT interface between lay people and knowledge/expertise.

It is in this context of reading the Future of The Professions and other like minded articles that I predict the future of law firms.

1. Tomorrow’s law firm will look different.

2. Most firms won’t be built upon the billable hour. Or the billable hour masquerading as something else. It will charge clients based on the end product. The focus will be on the end product. And technology will transform how the end product is created.

3. Anything that can be outsourced or automated will be outsourced or automated.

4. Law firms will be managed by non-lawyers, with specialized training.

5. The raison d’être for firms will shift towards client experience.

6. Law firms will use gamification to get employees to work harder, preferring the carrot over the stick.

Currently Uber is using gamification to incentivize its drivers. Using psychology to make drivers take on more riders. Or using psychology to make its drivers go to certain areas at certain times.

In the New York Times article, “How Uber Uses Psychological Tricks to Push Its Drivers’ Buttons”,  they say:

The secretive ride-hailing giant Uber rarely discusses internal matters in public. But in March, facing crises on multiple fronts, top officials convened a call for reporters to insist that Uber was changing its culture and would no longer tolerate “brilliant jerks.”

Uber’s innovations reflect the changing ways companies are managing workers amid the rise of the freelance-based “gig economy.” Its drivers are officially independent business owners rather than traditional employees with set schedules. This allows Uber to minimize labor costs, but means it cannot compel drivers to show up at a specific place and time. And this lack of control can wreak havoc on a service whose goal is to seamlessly transport passengers whenever and wherever they want.

Uber helps solve this fundamental problem by using psychological inducements and other techniques unearthed by social science to influence when, where and how long drivers work. It’s a quest for a perfectly efficient system: a balance between rider demand and driver supply at the lowest cost to passengers and the company.

Employing hundreds of social scientists and data scientists, Uber has experimented with video game techniques, graphics and noncash rewards of little value that can prod drivers into working longer and harder — and sometimes at hours and locations that are less lucrative for them.

In sum, Tomorrow’s Law Firm will look different than the firms of today. They will be meaner, leaner, and smarter.

(Views are my own and do not reflect the views of any organization.)

Can Algorithms Save the Courts?

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Algorithms are behind the most sophisticated kidney exchange programs in the world. In Canada, the Canadian Blood Services has built a national Living Donor Paired Exchange Registry. The Registry helps incompatible living donors receive a kidney transplant.

Pairs are matched by comparing the medical information from all pairs in the database and by identifying pairs that might be able to exchange donors. The Registry may also identify a series of pairs that could exchange kidneys in a chain like fashion.

As you can imagine pairing kidney donors can become quite complicated. Algorithms help untangle the madness. Algorithms are a process or set of rules to be followed in problem-solving operations.

We are constantly bemoaning the lack of resources funneled to the judiciary. Perhaps algorithms can be created and applied to stretch the limited resources of our courts, from matching judges to courtrooms, cases to judges, etc. in an efficient way. And also by creating algorithms to decide simple disputes that are regularly before the courts and tribunals.

For example, common interlocutory motions or types of small claims can be solved by using algorithms.  Ideally, the algorithms would be run by computers, reducing the amount of resources required in the long run.

(Views expressed in this blog are my own and do not reflect the views of any organization.)

Suing Apple over FaceTime

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In December 2014, a young child died in a car accident. The culprit: allegedly a distracted driver. The driver was on FaceTime.

The parents of the child are suing Apple for the iPhone’s design. The parents allege that Apple was negligent for not warning users that FaceTime was dangerous “when used or misused in a reasonably foreseeable manner” and by not including technology in the cell phone to disable certain functions while driving.

Does Apple have an obligation to warn users? It is already legislated in most jurisdictions to not use your cellphone while driving. If people need to be warned by Apple about the dangers of FaceTiming and driving, perhaps those drivers shouldn’t be driving in the first place.

The more interesting argument is the technology argument. Is it careless for Apple to not institute features that disable cellphone functions while driving? What is the standard of care to be applied to Apple?

In the statement of claim, the plaintiffs state that the Apple should know or should have known that drivers would be distracted by the features on their iPhones. And that Apple breached its duty of care by failing to use reasonable care in the design and manufacture of the phone by not using the lock-out technology.

This is a novel argument. I predict that Apple will move to strike the claim before filing a defence.

But if Apple is unsuccessful, would this open the floodgates? When Apple / Google / Samsung etc. makes products, what duty of care do they have to their users? Do they have a duty of care to lock-out users while driving? Do they have an obligation to build products that ensure privacy by design? Particularly so that Apps don’t steal data? Is failing to prevent Apps from stealing your data negligent?

Moving Forward: From Ink Quills to Electronic Documents

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This weekend I attended the Ontario Bar Association Annual General Meeting  (AGM) as a Provincial Council Member. The AGM brought together lawyers from across the province, from different practice areas, and from different career stages. This led to invigorating discussions about the future of our profession.

A significant topic was the Law Practice Program (an alternative program to the traditional articling program in law firms). The Law Society of Upper Canada recently released a report commenting on the viability of the Law Practice Program. As a reason for possibly scrapping the program, it was stated that graduates of the Law Practice Program are seen as second tier to traditional articling graduates.

At the AGM, many individuals argued that the perception that graduates of the Law Practice Program are second tier is nonsense. This is because the program offers standardization and acts as a check on the unregulated nature of articling in private practice. Furthermore, traditional articling is rife with problems, which arise from its inherent structure. The problems mentioned echoed the sentiments written by Professor Adam Dodek in his 2013 article “The Ethics of Articling“.

It seems to me that the recommendation that the Law Practice Program be scrapped and that articling be shortened is a move by the Law Society to inch towards an American style practice of qualifying lawyers (i.e. no articles, tough bar exam).

Another topic of discussion was the modernization of the court system. This year the President of the Ontario Bar Association David Sterns plans to keep the Attorney General’s “feet to the fire” and shine a light on changes to the court infrastructure. As someone who frequently writes about electronic filing, I welcome this goal.

To end, I would like to echo Colin Stevenson’s (Chair of the Policy & Public Affairs Standing Committee) eloquent statement that “while we are bound by history, we need to be firm on progress.”

 

 

 

 

Law Firms: Look to Your Left, Look to Your Right

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The old saying to law students: “look to your left, look to your right, because one of you won’t be here by the end of the year” is untrue. So law students need not fret. But law firms, they should.

Today most law firms look to the firm down the street for their largest competition. But in a few years time, the real threat won’t be that law firm down the street. It will be some technology company that will encroach on an aspect of their work.

Currently, this looming threat is sitting in his parents’ basement or sitting in his university dorm room, working on the next big thing. The best example of this next top threat is DoNotPay. DoNotPay is a free artificial intelligence lawyer, designed by 19-year-old second year Standford University student Joshua Browder. DoNotPay helps users contest parking tickets in an easy to use chat-like interface. So far, the program has successfully contested 160,000 parking tickets across London and New York for free.

“The program first works out whether an appeal is possible through a series of simple questions, such as were there clearly visible parking signs, and then guides users through the appeals process. The results speak for themselves. In the 21 months since the free service was launched in London and now New York, Browder says DoNotPay has taken on 250,000 cases and won 160,000, giving it a success rate of 64% appealing over $4m of parking tickets.” (The Guardian)

The process for appealing fines is relatively formulaic and therefore perfectly suitable for applying artificial intelligence. Meaning that customers can receive accurate advice without paying high fees to lawyers.

Challenging parking tickets is just the beginning. And I can’t wait to see what’s in store.

Law Imitates Technology: Technology Imitates Law

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There’s been much talk about technology imitating the work of lawyers, making some lawyers redundant. But we often neglect discussing how technology will shape the content of our laws.

Laws often reflect the times that they are made in. For example, I recently read a case where it was said in 1958 (quoting a decision from 1900) that “It has long been the law that if a wife is separated from her husband without his consent, and while separate is guilty of adultery, the adulterer is liable to the husband… [for the] injury to the husband by the defilement of his wife, the invasion of his exclusive right to marital intercourse, and the consequences resulting therefrom.”

But just as it would be absurd to apply this law today, it would be absurd to ignore the advances in technology. Technology has radically changed human behaviour and with it the substance of our laws. We are just starting to see the beginning of these changes.

For example, under the Arthur Wishart Act (legislation that protects franchisees), Ontario is considering allowing the use of email. Currently, franchisors can only give key documents to potential franchisees through registered mail or in person. The government is considering enabling franchisors to provide those documents through email.

I predict that changes like these are just the beginning and will go well beyond approving the use of email. We will see legislation on drones, legislation on 3D printing, legislation on artificial intelligence, and so on. We will see the content of our civil procedure change. Rules on serving documents will change. And even more excitedly, the processes for determining routine motions, like motions for answers to undertakings, third party productions, extending time for service will become redundant as technology will shift the role of the traditional master or judge.

 

 

 

Paper Filing: For Shame!

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In Ontario, our courts love paper. Maybe the judges and the staff loved the 1990s. I certainly did. But some things are better left in that decade, like the annoying toy Furby and paper filing.

This past week, I had to file two motion records with the court. Unfortunately, I was cutting it close to the deadline. Both motion records had to be filed the day they were due. In other jurisdictions, at a click of mouse, I could file the material from my office. But instead, in Ontario litigants have to wait in line to file the material with the court. And what happens if you’ve waited there all day, just to be told at 4:00pm that something is deficient and the court won’t accept it? You are out of luck.

This is unacceptable!

In 2016, entire industries are being disrupted by the Internet. Taxi cabs, the food industry, the music industry, just to name a few. So why does our court think that they are invincible? Why do they insist on paper filing? Are they just trying to keep legions of people employed, whose jobs depend on moving paper around the court system?

In Israel, the courts have implemented the Next Generation Court System. It has five basic features: an electronic file, the judge’s workspace, task assignment, calendar, and e-filing. Under this system, the public has access to publicly available court documents, while the litigants and judges have access to the entire court file through smart cards and passwords.

The judge’s workspace displays all outstanding matters that require attention and includes court documents like pleadings, affidavits, and exhibits. The inclusion of court documents allows judges to search for a key term while writing or hearing testimony. The task assignment feature assigns each step in a proceeding to the appropriate person. The calendar feature allows judges to schedule matters without cumbersome hearings, like scheduling court. The e-filing of complaints and motions reduces the cost of storing and transmitting documents and enables people to access court documents from anywhere. Further access from anywhere helps judges too. The ability to view all materials digitally during trial or at home shortens proceedings and the time needed to write decisions.

Other jurisdictions have entered the new millennium. And so should we. Our government should be ashamed of the lack of resources invested in our judicial system.

How to Stop Our Civil Courts from Atrophying

“To stand by as civil courts continue to atrophy risks jeopardizing the health of our democracy, our economy, and our private law… [W]e must change our ways and work to re-invigorate our public civil courts.” Justice David M. Brown of the Ontario Court of Appeal in “Commercial Litigation in the Next 10 Years: A Call for Reform”

Currently, our courts are hemorrhaging civil cases. Instead of disputes being heard by judges, they are being heard by private arbitrators or tribunals. Oftentimes the reason for this diversion is cost. People proclaim that it is simply too slow and too costly to use our judicial system.

The atrophying of our civil courts means that our democracy pays the price. Democracy only thrives when everyone, including small businesses and individuals, have meaningful access to an independent court. This is because public dispute resolution maintains order in our society and ensures that our laws keep pace with the times. By doing so, it supports the public’s faith our governmental structure.

Tribunals are not a good enough substitute to our courts. Partly because tribunals, as creatures of statute, can be abolished at any time, including at a political whim.

In “A Call for Reform”, Justice Brown offers several strategies for stopping the reduction of our civil courts. In particular, he cites adopting a “Front-End-Assignment-of-Trial Dates” System. Trial dates would be assigned upon the close or deemed close of pleadings. And once assigned, these dates would be carved in stone. I would go one step one further. I would say these trial dates should be assigned upon the issuance of the Statement of Claim and then set in stone.

Forcing people to adhere to a strict timeline incentivizes lawyers to work quickly and not let their cases languish. To incentivize lawyers, Justice Brown recommends that parties be mandated to disclose the documents that they intend to rely upon at trial when they file their claim or defence. By forcing lawyers to think about the trial, we can begin to chip away at the culture that sees the skilled civil barrister as the “motions specialist, [rather than] the final hearing expert”.

To change the order of production and to assign court dates at the beginning of a lawsuit, we need to adopt technology in our courtrooms. “[L]et the light shine in, dispel the ghosts of the past, and have the Bench, Bar and provincial government move ahead to modernise our court technology systems.” Hopefully in doing so, we will move our culture from one that praises the motion specialist over the civil trial lawyer.

The Medium is the Message: The transformation of legal services

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In “Legal Practice and Legal Delivery: An Important Distinction”, Mark Cohen argues that technology has transformed the delivery of legal services but not the practice of law. He defines delivery as “how services are rendered” and practice as “what lawyers do and how they do it”.

The delivery of legal services is a play with many actors…The days of law firms having a stranglehold over legal delivery have given way to the rise of in-house lawyers and departments, legal service companies, and technology companies “productizing” tasks that were once delivered as services. Again, it is not legal practice that is changing but the structure from which those services are being delivered.

Although I agree with Cohen’s argument that technology is changing how legal services are provided, I disagree with Cohen’s assertion that the practice of law remains the same. The practice of law is the provision of legal services.

In Bergen & Associates Incorporated v. Sherman, 2014 ONSC 7213, Justice Myers states that:

The provision of legal services includes the application of legal principles and legal judgment with regard to the circumstances or objectives of a client, negotiating the legal interests, rights or responsibilities of a client, giving advice concerning such legal interests, rights or responsibilities, and drafting documents affecting such legal interests, rights, or responsibilities.

Delivery cannot be divorced from practice. The rendering of legal services is the practice of law. The medium is the message!

Why is technology changing the practice of law?

At its core, the law is information-based. And lawyers are in the middle of an information revolution. Technology is changing how much law we have, how complex it is, how regularly it changes, and who is able to advise on it. This is causing the work of lawyers to change. As we transition from a print-based industrial society to an Internet-based information society, “the future of legal services belongs to those with the ability to think creatively”. (Richard Susskind, Tomorrow’s Lawyers)

Why does it matter that the delivery of legal services is the practice of law?

As new technology companies introduce new legal “products”, they will adopt the arguments of Uber. They will argue that they are a technology company delivering a product and not a company practicing law. This argument must be revealed for what it is. A weak technical argument made to avoid liability for the unauthorized practice of law.

Instead of forcing new technology companies to operate outside the law, we should begin regulating them. Their ascent into the world of legal services has just begun.