The Future of Our Courts: Online Courts

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“The Future Has Arrived — It’s Just Not Evenly Distributed Yet.” – William Gibson

In “Online Courts and the Future of Justice”, Richard Susskind proclaims that our courts are moving towards radical change. Conceived in the dark ages and modified in the 19th century, our courts are now overwhelmed by paper and archaic processes. The operations of our courts seem increasingly out of place in our digital society.

Susskind predicts that we will see court services delivered in a blend of physical, virtual, and online courts. The 2020s will be a period of redeployment of lawyers and judges. By 2030, our courts will be transformed by technologies, many of which are yet to be invented.

Access to justice requires that we work towards transformation of our courts. There is a growing number of self-represented litigants and even more people that opt-out of using our courts altogether. Whether that be due to money, inconvenience of using the courts, or the complicated processes that seem decipherable only to lawyers, people feel excluded by the court system.

Susskind writes that online services can bridge the gulf between people knowing the law and enforcing their rights. These services can take the form of virtual hearings or online courts.

In virtual hearings, some or all of the participants participate by video. This includes the judge, lawyers, court clerks, and clients. Events happen contemporaneously.

In online courts, the evidence, arguments, and judicial decisions are submitted through an online platform. There is no oral hearing. Events do not happen contemporaneously. The process is akin to an email chain.

Susskind champions the use of online courts for low-value claims, which tend to be dominated by a small number of life events. The adversarial system can still be protected in this forum. At the heart of the adversarial system is not the oral hearing but that arguments are presented by both sides to an impartial adjudicator, whose decision is backed by the coercive power of the state.

Susskind sees online courts providing a far wider range of services beyond the adjudication of claims. Additional services include:

  • tools to help the users to understand their rights, duties, and options available to them;
  • facilities that assist in marshalling evidence and formulating arguments; and
  • systems that promote alternative dispute resolution.

These tools would incorporate animations, cartoons, videos, flowcharts, and other visual guides.

The first generation of online courts would involve humans delivering decisions through an online platform. In the second generation of online courts, artificial intelligence would be used to adjudicate and contain claims.

Artificial intelligence systems would help users categorize their problem, understand the applicable law, guide them through available remedies, and facilitate settlement by letting users know the likely outcome of the case.

The tasks of building online courts include redesigning the underlying processes, drafting new rules of procedures, consultation on new services, piloting new services, procurement, system development, adjusting services, training, and roll-out.

Presently, the Civil Resolution Tribunal in British Columbia is the most advanced online court in the world. Launched in 2016, the tribunal resolves claims under $5,000, condominium disputes of any amount, and motor vehicle cases up to $50,000.

  • There is a tool that helps users understand their legal position, using a rule based expert system called Solution Explorer.
  • Then there is an online negotiation facility that allows users to try and reach an agreement informally between themselves.
  • Finally, there is an adjudication process.
  • All CRT forms can be submitted in paper or online. However, only 1-2% of people choose to do so in paper.

In the book the Future of the Professions, Richard Susskind and Daniel Susskind write that “Many professionals seem to have lost sight of the reasons why we have personal interaction in the first place. It is a feature of the one-to-one nature of the traditional approach. As a consequence of its longstanding presence, it has gained an aura of indispensability. But we have to remember its origins – only as a feature … of sharing practical expertise. If, however, we can find better ways of sharing that expertise that require less personal interaction, then we should not defend this interaction for its own sake.”

Susskind encourages designers to think of the outcome that litigants want. Litigants do not want courts, judges, or lawyers. “They want to not have a problem at all. They want their disputes resolved with finality…Outcome thinking leads us to worry far less about perpetuating old processes and methods than whether reforms will bring about better results.”

Controversially, Susskind proclaims that “we should dilute the adversarial process if it enables us to deliver court services more widely, more quickly, at a lower cost, in a less combative way, and in a form that is intelligible to lay users.”

(Views are my own and do not reflect the views of any organization. This post was originally published on slaw.ca. heatherdouglaslaw.com)

Blockchain Regulation and Governance Course

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Blockchain and distributed ledger technology are considered by experts to be the biggest technological change since the invention of the internet. Since ancient times money has been the domain of governments. Because digital currencies such as Bitcoin are not created by governments as a central authority, and are being increasingly used to transfer wealth, regulators struggle on how to categorize such digital assets.

It is predicted that 10% of the global GDP will be handled by blockchain by 2027. Starting this Fall on September 19th, The Chang School of Continuing Education part of Ryerson University, is offering a course on blockchain regulation and governance.

The course is being taught by Professor Timothy Storus. Timothy Storus is the former Head of Legal and Compliance Department, Chief Compliance Officer, and Chief Anti-Money Laundering Officer at the Bank of China (Canada).  He has held General Counsel positions at various banks and trust companies over the years.

The course is geared towards legal professionals, regulators, and people with an interest in technology, start-ups, and cryptocurrencies. For lawyers, understanding blockchain and the current law will help them advise clients on contracts, securities, and litigation. Examples of current commercial applications of all three typologies will be explored.

Each class will focus on a different aspect of blockchain technology, including:

  • the difference between crypto-currency and traditional money;
  • the uses of block chain technology;
  • utility tokens;
  • security tokens;
  • fraud, theft, and anti-money laundering efforts; and
  • smart contracts.

The course is taught over 12 weeks, from 6pm-9pm, on Thursday nights (starting September 19). To learn more about the course or to enrol click here.

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

Third Party Funding: Can AI Help?

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Recently Alan Freeman wrote about the use of artificial intelligence in third party funding of litigation, in his article “Intelligent Funding: Could AI Drive the Future of Litigation Finance”. Litigation funding, also known as third party funding, provides financing to plaintiffs and law firms to enable them to pursue their claims in return for a piece of the recovery.

For a court to approve a third party funding agreement, the party must show that (a) the agreement is necessary to provide access to justice, (b) that access to justice is facilitated by the third party funding agreement in a meaningful way, (c) the agreement is fair and reasonable by enabling access to justice while protecting the interests of the defendants, (d) the third party funder is not over-compensated, and (e) the third party funder is not interfering with the solicitor-client relationship, including the duty of loyalty.  Typically in class action law suits the third party funder takes about 10% or less of the recovery. (Houle v St. Jude Medical Inc., 2018 ONSC 6352 at paras 34, 63-64)

Through applying artificial intelligence to thousands of cases, third party funders may be able to better determine which cases to “bet” on. Freeman writes that by using artificial intelligence programs, like Blue J Legal, third party funders may be able to determine the likely outcome of a case. He further quotes Professor Alarie (also a founder of Blue J Legal) that using artificial intelligence programs may become common place for third party funders.

I also predict that predictive programs will become more prevalent in the law. However, as long as humans are the judges, artificial intelligence programs will have its limitations in predicting the outcome of cases. There are many influencing factors beyond precedent in deciding a case. The evidence that is admitted and how witnesses are perceived also play a major role in the outcome of the case.

Additionally, there are opportunities for artificial intelligence programs to make mistakes. In the New Yorker article The Hidden Costs of Automated Thinking, Jonathan Zittrain writes that machine learning systems (subset of artificial intelligence) can be tricked into making inaccurate judgments. “Seduced by the predictive power of such systems, we may stand down the human judges whom they promise to replace. But they will remain susceptible to hijacking—and we will have no easy process for validating the answers they continue to produce.”

(This article was originally posted on slaw.ca. Views are my own and do not reflect the views of any organization.)

Are the Big 4 Accounting Firms Poised to Dominate Law?

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In Tomorrow’s Lawyers, Richard Susskind predicts that the Big Four Accounting Firms would overtake law firms in the years to come. Susskind explains that the accounting firms were forced to deal with disruption earlier than law firms. In the course of adapting to the disruption, the large accounting firms became more streamlined and became more creative in packaging services. As a result, Susskind predicts that the accounting firms would first begin to dominate law firms by eating into more routine legal work.

Yet again, Susskind’s predictions were correct. It was recently announced that Ernst & Young would be buying a legal managed services business from Thomson Reuters, named Pangea3. The company focuses on document review, contract review, financial trade documentation, and regulatory change management.

As technology improves and more legal service providers enter the picture, it begs the question: “will lawyers be forced to end their monopoly on providing legal services?” I think so.

In the Vancouver Sun, Ian Mulgrew discusses this question, and quotes Profession Gillian Hadfield. Hadfield states that the solution to making justice more affordable is to change the regulations. Hadfield argues that law should be a team sport like medical care. Medical care is provided by a “wide variety of medical professionals: nurses, radiologic technologists, pharmacists. The law should be too.”

Hadfield further argues that “Any solution that makes a dent in the problem will also have to involve expanding the types of people and organizations that are authorized to provide legal help. … [I]t is a major mistake for the legal profession to focus exclusively on how to solve the access problem with more money — public or charitable money — and volunteer pro bono efforts alone.”

As the legal market faces more competition from technology and accounting firms, law societies will be forced to confront who and what types of organizations should be regulated.
(Views are my own and do not reflect the views of any organization. This article was originally posted on slaw.ca.)

Blockchain and the Judiciary

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In Blockchain Revolution: How the Technology Behind Bitcoin is Changing Money, Business, and the World, Don Tapscott and Alex Tapscott discuss the potential for blockchain in changing our world. Blockchain is a list of records (blocks) that are linked using cryptography. The list of records are permanent, open, and time stamped. The records are linked using algorithms that are almost impossible to break.

Don and Alex Tapscott write that blockchain could be used to transform our judiciary. For example, they cite the concept of CrowdJury. “CrowdJury looks to transform the justice system by putting several judicial processes online, using both crowdsourcing and the blockchain, including filing a charge or complaint, gathering and vetting of evidence, engaging citizens in open trials online and as online jurors, and issuing a verdict.” The analysis and decision making would be crowdsourced, which could lead to a more accurate outcome in a shorter time frame.

In the CrowdJury process, the process would begin by someone making a report online and inviting potential witnesses to provide evidence. The original complaint and the evidence would be cryptographically stored on the blockchain to ensure that it remained on record and was not tampered with. If the accused proceeded to a trial, then the trial and all the evidence would be broadcasted online in an open-court like model. The decision-making would then be made by a mass jury.

Although CrowdJury sounds problematic in many ways, I think blockchain could still be used in our current system to safely store information. Blockchain could be a safe way to create and maintain electronic court files and store evidence and exhibits.

(Originally posted on slaw.ca. Views are my own and do not represent the views of any organization.)

Predicting the Future of Legal Products

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Content might be king, but distribution is the kingdom. – Derek Thompson

In Hit Makers: The Science of Popularity in an Age of Distraction, Derek Thompson explains what makes a hit. He argues that consumers are looking to try new things but are also afraid of anything new. So the goal for making a hit new product is to make something that people will share with their audience.  The way to get there is to make something bold yet instantly comprehensible.

It needs to looks familiar yet be advance. It is a tug of war between the “love of the new versus the preference for the old”. The trick is to frame new ideas as tweaks of old ideas, “to make your audience see the familiarity behind the surprise.”

However, in creating these bold new products, inventors must calculate the odds of its success. In The Undoing Project, Michael Lewis explains that when people calculate the odds of something happening they are really making judgments about similarity. This becomes problematic when people rely too heavily on stories rooted in the past rather than on probabilities.

Amos Tversky and Daniel Kahneman explain this conundrum. “It is far easier for a Jew living in Paris in 1939 to construct a story that the German army will behave as it did in 1919 than invent a story in which it behaves as it did in 1941, no matter how persuasive the evidence might be that, this time, things are different.”

In sum, we must create familiar yet bold new products. But we must not let our memories of the past warp our imagination of the future.

 

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

The Ethics of Big Data in the Law

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A basic premise of our legal system is that you are innocent until proven guilty. But what if we could predict who would offend using Big Data?

At its core Big Data is about predictions. It’s about taking large data sets and applying math to infer probabilities.  In the Future of the Professions, Susskind predicts that Big Data will draw conclusions and offer advice as well as or better than a human expert.

But how should we respond to the dark side of Big Data? What if we could predict who would be litigious, who would re-offend criminally, or who would likely sexually abuse children? What if a company, like Google or Facebook, with its vast amount of data fired people based on Big Data, rather than on any wrongdoing? What if the Government placed potential abusers on a Watch List?

In Big Data Ethics, Neil Richards and Jonathan King provide some recommendations. They recommend establishing ethical principles and practices to guide government agencies, corporations, data brokers, information professionals, and individuals. However, principles will not be enough. We will also need laws to limit what we can do with data.

Big Datas predictions are just that: predictions. So to penalize someone before an event would set a dangerous precedent. It would gut the principle of “innocent until proved guilty”. It would place undue deference to a mathematical calculation.

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