Harvard Law School has clearly cottoned on to the value of Richard Susskind. Earlier this year, they gave him a virtual book launch for Online Courts and the Future of Justice. And apparently got a world wide audience of over 1,000. On Friday, its Center on the Legal Profession had him back again to front a discussion of Online Courts. His presentation was largely based on an article that Harvard also published and, if you are interested enough to read down to here, then you should probably consult it directly. The webinar lasted three and a half hours. So there was time for a number of themes. These included how online courts might maintain the court’s traditional gravitas of the courts and maintain the trust of parties as well as the particular challenges of digital advocacy. But, for this column, we are concerned with just two linked radical suggestions from an interesting discussion that was a fitting tribute to Massachusetts Chief Justice Gants in whose memory the webinar was held.
Richard Susskind has always articulated his ideas with a radical edge that sometimes gets lost in their championing by those whose prime interest is cost reduction. He is concerned with using digital courts to expand access to justice. As he puts his case in the Harvard article, ‘whatever explanation is preferred, the unvarnished reality is that most people on our planet cannot afford to enforce their legal entitlements in public courts … I wanted … to generate the sense of urgency that theorists tell us is necessary if substantial change is to be achieved. This was not my first call. For almost 40 years, I have been making the case for transformation. Perhaps the access-to-justice problem has not been regarded as urgent precisely because it is so prevalent and long-standing. It has been handled as a chronic ailment deserving of inquiries and commissions rather than an acute problem requiring immediate care.’
The most radical element in his argument is for acknowledgement of what Professor Susskind calls the ‘legitimate secondary function’ of the courts. Court procedures need, he argues, a ‘front end’, explicitly basing his argument on the example of the Solution Explorer of what is now the grandmother of online courts, British Columbia’s Civil Resolution Tribunal.
The ambition of this call should not be missed. It amounts to arguing that the courts should take on a role that they have never traditionally accepted: ‘The idea here is that, in a digital society in which most people have internet access, our courts should provide services beyond their primary function of delivering authoritative, binding adjudications, backed by the coercive power of the state. The[se] … include decision trees and diagnostic systems that can help court users, especially those who are self-represented, to understand their entitlements and obligations; guides that help identify the options for resolution that are open to users; tools that can help nonlawyers organize their evidence and formulate their arguments; facilities to encourage and support parties to settle their differences on their own; case officers who can actively offer mediation and other services in the spirit of alternative dispute resolution (ADR), not as a private-sector offering but as an integral part of the public court service.’
One of the fascinating aspects of Richard Susskind’s modus operandi is that you can chart the development of his ideas in succeeding versions of their texts. Thus, there is not much in his latest paper which was not in the last book and much in that which you can see in earlier ones. But, Professor Susskind does not like to stand still. He likes to modify his argument as it goes. Thus, he has previously argued that such front ends should be provided by the state and ‘embedded within public court systems’. But, he now sees that these could be ‘made available by private-sector entities that can see there is a market opportunity here, or perhaps by charitable or educational bodies that want to help tackle the access-to-justice problem’. He even reveals his personal involvement in one such private frontend developed by Lawtech UK.
Those of us concerned with access to justice need to engage with this argument. There is no doubt that Professor Susskind is one of our great allies. He has the ear of the powerful – in academia, the judiciary and government. We should adopt wholeheartedly his inclusive approach to dispute resolution. And we can surely applaud any private determination system that can divert commercial claims from the public courts. But, we should not allow any weakening of the force of his argument that the public courts have a ‘legitimate secondary’ duty to provide public access as well as public resolution of disputes. We need to hold Professor Susskind to his basic argument – the courts have a duty in relation to the provision of access to justice just as much as they have a duty to provide access to themselves. For all that they may lay off this responsibility to others.
Harvard gave the Brits a rather good day in allowing Sir Geoffrey Vos, the incoming Master of the Rolls, to make a presentation as well with a complementary radical edge. He argued (as summarised in my contemporaneous note) that ‘we need a fresh approach that takes account of existing circumstances such as the ready availability of the internet, the massive accumulation of data and the widening availability of systems for processing that data’. His most interesting point was that, in consequence, ‘existing procedures cannot simply go online. Our objective should be to identify the issue in dispute by the quickest route’.
We need new procedures to supersede the old established, ponderous and digressive ones established by written proceedings. We need systems that pull out the key legal and factual issues but respected three parameters – the continuity of judicial integrity, public confidence and the quality of justice. Work this through and see the potential implications. It presumably suggests that ponderous written pleadings may be replaceable by a whole new way of identifying key arguments more appropriate for machine use. So, for example, you might be required to input your case by way of answers to standard questions rather than at your own discretion. Interesting and, for lawyers, as radical as Professor Susskind’s assertion of the legitimate secondary role of the courts.
Zoom webinars are an art form which Harvard’s head of the Center on the Legal Profession, Professor David Wilkins, has clearly grasped. You need to vary the pace; you need a variety of interesting speakers. Above all, you need good content. This one delivered and the core of a radical agenda in digitalising the courts internally and externally was set out. There was the odd unexplained detail. It was never quite clear why Professor Wilkins moderated the whole thing from in front of a sideways version of the Lamborgini symbol. But no doubt it signified something about an old institution’s response to modernity.