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Digital Courtrooms: Forsaking Lawyers at the Price of Justice?

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About The Author

Samuel Cuthbert (Private Law Manager)

Sam read Philosophy at Durham University, followed by the GDL funded by the Lord Brougham Scholarship and a Hardwicke Scholarship from Lincoln's Inn. Sam is now spending a year, prior to undertaking the BPTC, to develop his legal interests in a paralegal capacity. His legal career is starting in a M&A paralegal role at a large Viennese firm. He is a passionate speaker and has his sights set firmly on a career at the bar.

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He who cannot put his thoughts on ice should not enter into the heat of dispute.

- Friedrich Nietzsche

With proposals for the heat of legal dispute to be relocated just a click away, this adage is more applicable than ever before. In the midst of the Lord Chancellor’s dismantling of the justice system, there is a hastened need for procedural reform in dispute resolution. Court fees continue to rise, and the number of litigants-in-person has rocketed following cuts under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). As a result, the courts are under unprecedented strain. Justice, and access to it, is suffering. However the Civil Justice Council, chaired by Lord Dyson MR, has published a report contending that moving a good deal of the legal process online will allay these difficulties. Such proposals would mark a profound change. Hannah Larsen detailed a number of these in her excellent article for this journal, and in the wake of the recent report I look to develop these.

The recent Dimbleby lecture saw Baroness Lane Fox extolling the virtues of an online world of public services, and the Civil Justice Council’s proposals adopt a similar approach with their potential to facilitate increased access to justice. However, the proposals may also pave the way for a culling of the legal profession. As a result, legal practitioners may find themselves torn between the ideology of their vocation – accessible and wide-reaching provision of justice - and the reality that there may no longer be space for them and their colleagues in an increasingly digitalized process.

The Procedural Aspect

The official report highlights that such changes would only apply to ‘low value claims’ where the government are concerned that the court procedure is ‘too costly, too slow, and too complex, especially for litigants in person.’ Claims up to £25,000 would be eligible for Online Dispute Resolution (ODR). Up to two thirds of civil claims would qualify, thus providing some idea of the magnitude of the proposals in question. The system for these claims would be known as HM Online Court (HMOC) and would comprise of three tiers.

The first of these would evaluate the grievances in question, and look to educate litigants as to their rights before engaging with prospective remedies. The report indicates that ‘this will be a form of information and diagnostic service and will be available at no cost to court users. This part of HMOC will be shared with or will work alongside the many other valuable online legal services that are currently available to help users with their legal problems.’

If a case is unresolved following evaluation at tier one, the second tier provides a facilitation stage. The report indicates that manning this stage will be ‘trained and experienced facilitators, working online, who can review papers and statements from parties, and then help them by mediating, advising, or encouraging them to negotiate.’ Inspired by the system implemented by the financial ombudsman (which filters out 90% of its cases before reaching the ombudsman), the approach here will be inquisitorial rather than adversarial, with a small fee attached to it. The report is unclear as to whether these facilitators will be legal practitioners or individuals newly trained for the task. Although, with ODR leaving less work available for lawyers, filling the facilitation stage with some of those practitioners may help mitigate the otherwise negative effects on the legal profession.

The proposals for this stage look to emulate the ‘eBay model’ which, the report claims, is used to resolve 60 million disputes between eBay users annually. Richard Susskind, chief IT advisor to the Lord Chief Justice and co-author of the report, contended in a Radio 4 interview that eBay disputes ‘are minor differences, but so are the very many differences in our civil courts system’. The legal ombudsman indicated how this system might work in a legal capacity:

The case study of eBay shows how disputes between buyers and sellers can be resolved by a semi-automated system which is able to resolve the vast majority of cases by providing options for settlement and encouraging parties to reach a view for themselves.

Critics at this stage may allude to the specific sale and purchase context in which the eBay model functions and insist that legal challenges are scarcely so simple. However, the cases which cannot be settled at stage two for this reason progress to the final of the three tiers which incorporates judicial participation. The proposal is that members of the judiciary would settle disputes on the basis of electronic pleadings and paper submissions, with telephone conferencing employed in support.

Digitalisation: Deft or Dumb?

There are a number of potential advantages to this digitalisation, one of the most persuasive being economic. In his exceptionally insightful essay in the Santa Clara Law Review, Hang highlights the great cost attached to litigation, particularly when one considers that legal representation is often not wholly necessary and that ODR removes the requirement for it altogether. Lord Dyson, keen to champion this benefit, pedalled a similar rhetoric in the foreword of the report claiming that ODR’s ‘aim is to broaden access to justice and resolve disputes more easily, quickly and cheaply.’

There are several arguments supporting his contention that ODR would streamline the justice system to allow individuals with grievances to achieve remedies more easily. The system would allow litigants to reach a resolution in their own time, tracking and making electronic submissions when convenient within the time limits set by the parties, and those manning tiers one and two. The notion of litigation in one’s own time is an appealing one, in removing the need to navigate court administration or attend conferences with legal representatives, the process would be more convenient and much quicker provided that the system was simple enough to allow it to be.

The worry emanating from this supposed advantage, however, is that it may result in increasing levels of litigiousness owing to increased access to remedial action and much lower fees. Although, that is not to say that the system would be free; court fees would be imposed at a level so as to ‘discourage vexatious use’ of HMOC. It is notable that the exact figure is elusive in the report, given that the success of such proposals would turn on ensuring the correct threshold is set to balance discouraging trivial claims with increasing access to remedies for legitimate grievances. Importantly, a complete streamlining of the justice system would require guaranteed Internet access, however the most recent census, suggested that only 80% of people have such access at home.

A further concern is the effects of removing the human contact from so much of the legal system. ODR can appear impersonal as it removes the requirement for parties to meet in a courtroom. However, Hang highlights that ‘because the parties cannot see each other, they will not be able to read those same emotional messages through body language as they could if they were in the same room together.’  This may inhibit the successes of mediation as parties are no longer forced to confront and manage their frustrations and emotions.

Moreover, ODR affords a much greater level of anonymity and that is not necessarily a positive thing. Online activity often makes individuals prone to acting more frequently or intensely than they otherwise might do; it is a behavioural trait known as ‘online disinhibition’. Removing legal practitioners from the process, and providing a platform upon which litigants may be less inclined to act as reasonably as they would if faced with a courtroom, makes the role of the software evaluating claims increasingly difficult. Further, an online forum may remove the gravitas currently afforded to the court system; it is conceivable that the perceived solemnity of how justice is served will dwindle if it is reduced to an exercise in little more than online form filling. In his paper on the effects of online activity, John Suler makes the point that ‘invisibility gives people the courage to go to places and do things that they otherwise wouldn’t’, whilst the asynchronicity of not having to engage in real time has been shown to ‘disinhibit’ individuals. Would the online format be so rigid as to provide no room for excessively unreasonable behaviour? If so, would that rigid format unhelpfully oversimplify the claims being made? The uncertainty is evident.

What about the Lawyers?

Most uncertain though, is the future of the legal profession in the wake of such fundamental change, particularly in civil claims and traditionally ‘litigation heavy’ areas. Professor Susskind, co-author of the report and seminal works Tomorrow’s Lawyer, and The End of Lawyers? Rethinking the Nature of Legal Services, writes ‘I expect instead that there will be significantly fewer lawyers providing traditional consultative advisory service; and I predict the emergence of new legal professionals with quite different roles in society.’ The digital threat is clear; there is no avoiding that with potentially two-thirds of all civil claims settling online, there simply won’t be the same amount of work for practitioners. But how insightful are Susskind’s gloomy predictions? Does this really mark the doomsday of the legal profession? (For more on Professor Susskind’s image of the future legal profession, see Chris Bridges’ previous article for KCTL on ‘Tomorrow’s Lawyers’).

Those hit especially hard, Susskind concedes, would be the civil barristers: ‘dispute avoidance and online dispute resolution will chip away at some of [...the work of barristers…] but I do not see these as eliminating advocacy entirely.’ There is certainly an argument to suggest that such fundamental change might be the answer to the problems facing the bar, as outlined in Lord Judges speech delivered in the Middle Temple: ‘if the Bar is to retain its reputation as the repository of advocacy at its best, harsh as it is to say so, those who are not good enough should not survive.’ Digitalising much of a barrister’s work would catalyse a professional Darwin-esque development, where only the very best advocates survive to work on the most complex cases, those that cannot be resolved through ODR.

More broadly, Lord Judge further contended that as far as advocacy goes ‘the old fashioned chambers structures must be reconsidered.’ The realisation of digital courtrooms may necessitate this for much of the civil bar too, with other specialist areas potentially following later. Fewer barristers doing more work remotely would not need to be bound by the traditional chambers structure, as the emphasis would change from requiring a physical presence to needing an online one. The argument may then follow that without the costs of chambers’ overheads there would be scope for more advocates to compete for the remaining work, catalysing the effects of this ‘only-the-best-survive’ philosophy.

A similar fate may befall litigation-based solicitors firms, who may suffer from smaller claims settling online. Whilst the new system would call for legal practitioners to man the facilitation stage at tier two, it is difficult to conceive that this would plug the deficit of available work that the system would create. This is where I perceive the sticking point to be; if ODR increases access to justice and legal remedies, then this realises the ideological ambitions which fuel some to pursue a legal career in the first place but it could also leave them without a job, or perhaps just create an incentive to focus on work away from litigation.

Consequentially, some may be inclined to write off Susskinds sweeping proposals as extreme, and perhaps a little too sci-fi to be taken seriously. I would agree. Michael Sterns provocative article directs us that we ought to heed Susskinds gloomy predictions because ‘like global warming, the accelerating commoditisation of legal work is here, is real, and won't go away.This global warming comparison is an insightful one, and not necessarily for the reasons Stern intends. He is right, global warming is here and real, yet the mining of fossil fuels has yet to cease because alternative sources of energy are not yet reliable enough. The same is true of the HMOC proposals; the internet is here and real, but we should be wary of instigating such radical change in the short space of time detailed in the report, i.e. ‘in widespread use in the 2020s’. The internet needs to prove its worth as a tool for achieving justice, through incremental increases in the volume and complexity of the cases settled through it. Only then is it worth considering the implications of a far smaller legal system in the context of a much more broadly accessible justice system.

The conclusion Susskind reaches asserts ‘that large latent markets of unmet need can be realized and satisfied by delivering professional guidance as commoditized online service.’ This is an exciting and philosophically appealing proposition, but the inference that such a proposition would squeeze the legal profession beyond recognition is not helpful. To ensure justice is achieved, the methods used to discern it need to be appropriate and reliable; I believe that incrementally and gradually increased use is the way in which this can be achieved.

That being so, the answer to the initial question as to forsaking lawyers for the price of justice is clear: ODR does not make the two tenets mutually exclusive and for the foreseeable future, the sensible approach would be for the two to come delivered as one.

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Tagged: Alternative Dispute Resolution (ADR), Courts, Dispute Resolution, Legal Business, Litigation

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