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)

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.)

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.)

 

 

 

 

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.)

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.

Be Like Water

Technology is evolving at an exponential pace. With this growth, comes radical change in the way information is “captured, shared, and disseminated” (Richard Susskind).

Now that we are in the era of communication enabled by technology, lawyers must adapt and be like water.

Don’t get set into one form. Adapt it, and build your own. Let it grow, and be like water. Empty your mind, be formless, be shapeless – like water. Now, you put water in a cup, it becomes the cup; You put water into a bottle, it becomes the bottle; You put it in a teapot, it becomes the teapot. Now water can flow or it can crash. Be water, my friend. – Bruce Lee (martial arts icon)

Data Creation: Data Visualization

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It’s been said that “more data has been created in just the last two years than in the entire previous history of the human race, according to the Scandinavian research group SINTEF. ”

With the rise of literacy after the printing revolution and the emergence of the internet-based information society, more and more information is being created and retained in electronic format.

In lawsuits, “e-discovery [the exchange of information in electronic format] has become an uncontrollable burden”, as Justice Myers remarked in Saleh v Nebel, 2015 ONSC 3680 http://bit.ly/1d5ajNm.

A way to alleviate this burden would be to transfer textual data into visual data.  Humans decipher images far faster than interpreting texts, about 60,000 times faster. Steven Pinker, a linguist, states that humans think in images. That is why phrases that conjure up concrete images are far more memorable than abstract sayings. For example: “if the glove doesn’t fit, you must acquit”.

Visuals are so compelling that judges sometimes exclude photographs or videos as evidence in a trial “so as not to inflame the minds of the jurors” (Law of Evidence – Paciocco and Stuesser). After all, an image really is worth a thousand words.

As lawyers, we are inundated with documents and unfortunately mostly poorly written ones at that. I personally would welcome any tool that transforms huge amounts of text into images.