Many Universities, in particular those around London, host free legal events and talks aimed at broadening and developing commercial awareness for students and professionals. The majority of the talks which I have attended I have found through Eventbrite. This February, I attended many talks at UCL, one of which was given by Richard Susskind and a panel on the topic of “Case for Online Courts”.
Richard Susskind has recently obtained a well-deserved spotlight among the law student community during a period of what can be argued as an unstable and uncertain legal industry with his simple but innovative solutions. If you have not heard Susskind, he has advised many law firms and accountancy firms and his main area of expertise is the future of professional services, in particular IT and technology, changing how lawyers work.
Susskind began by stating that the case for online courts should not be a technological one, but one which is moral. Emerging technologies, Susskind believes, may hold the potential to increase the access to justice and that ‘we’ should be obliged to experiment. He continued with something that I feel many students, and also those working in the legal industry, can relate to as a ‘thought for the future’: we don’t tend to ask what the specific difficulties are that we are facing or take a step back to work out how we are going to try to solve them. I believe this could be a valid reason why many lawyers and students may be concerned about online dispute resolution (ODR) because, as a sector as a whole, we don’t take a step back to consider how the changes will be implemented and how it will benefit clients. However, it is key to point out that technology will make the law more accessible to those who may have not already be able to access to it, an aspect widely debated by the panel.
“A good justice system should do more than resolve” – Richard Susskind
ODR is no new feat for the legal industry. First introduced in 1996, it is nearly as old as many law students like myself! So could ODR be more welcomed and accepted because our generation are happy to use technology to resolve nearly all of our problems? eBay was one of the first companies to use ODR for disputes between its users and arguably has been a success which has handled over 60 million disputes thus far, something that you can read more about in our previously published article here. Susskind regarded eBay as a precedent for low value dispute resolution.
The legal profession as a whole has not widely accepted the concept of ODR. Take the Bar for example. This sector of the legal industry has not changed dramatically for over 100 years. However, section 57(c) of the Crime and Disorder Act (CDA) 1998 permits Magistrate’s to conduct preliminary hearings before the court via a live link from a police station. Furthermore, the Leveson Review of Efficiency of Criminal Proceedings had made some recommendations for procedures within the Crown Court which runs in parallel with the Crown Court Digital Case System (DCS) initiative, allowing case materials being uploaded to a digital court file (with authorisation by defence firms) with the intention to take over paper files. This does suggest that technologies are being used to a certain extent in criminal cases, but not to an innovative level which Susskind believes technologies should be used, especially for civil matters. Furthermore, ODR may not attract barristers due to their fears over losing work to an online system and how they deal with bundles in court when putting forward their case. Susskind stated that the introduction of ODR may cause “loss of majesty” at the Bar, referring to fears that this concept may remove and dumb down authority and courts, their relevance and their effectiveness. With s 57(c) of the CDA 1998 and the introduction of DCS, it could be seen this mitigates against Susskind’s argument of effectiveness, as these directives show that technology is slowly being encouraged and implemented to help aid effectiveness within the lower courts for criminal cases.
Susskind recommended that ODR should contain a set of simplified rules and common procedures, ultimately making the law more accessible to the everyday citizen. Susskind emphasised it may not benefit low value cases as it can be hard to anticipate the administration, disclosure and time involved, which may mean that some cases of this kind would not suit the first instance being carried out by ODR. With many large value cases, there can be more complexity, involving a lot more time and administration; therefore it would not be possible to sufficiently undertake higher value matters using ODR. That said, ODR can be advantageous as it can help to reduce the cost of legal proceedings for clients whilst also help aid the speed of court proceedings.
Personally, I feel that ODR may miss out certain key attributes in dispute cases by having a generalised structure of set of rules: no matter how low value the case, there will always be a dependency on the documents associated, which may include evidence and disclosure weightier or more complex than what it seems on the outset, therefore with this suggested method of simplified rules and common procedures of using ODR for certain low value cases, it could make it harder to find possible remedies for clients which are not time consuming. In addition, I feel that ODR, with small and large value cases, may mean that clients for many civil disputes are less inclined to take legal action as some clients may prefer to have face-to-face interaction with a lawyer who can guide and advise them through the process.
In addition to the rules and common procedures outlined, Susskind also pitched 3 aspects that 21st century ODR should include:
Physical, face-to-face contact;
Virtual, aka resolving a dispute over a platform such as Skype; and
Online, which would be a less direct or personal approach for claimants.
This method would still include many of the same skills and processes that are undertaken when administering and dealing with matters. The key mitigating factor to Susskind’s argument was that, in each characteristic, elements of opening a matter such as administration and filing would mainly, in each of the 3 aspects, be undertaken online.
The question was put forward of: why should we change? Especially with low value disputes concerned. Susskind’s key argument was to reduce the cost for prospective clients. I would also expand on this, as it will enable wider scope for more low value matters within the court system. However, Susskind’s 3 characteristics could make the court system seem more complex. Conversely, where low-value disputes are concerned, the present system may mean that legal fees are higher than the damages payable to the successful claimant. Additionally, the process is very slow and out of step with today’s society so ODR would simplify and speed up the process of bringing forward legal proceedings resulting in a faster justice system in the long term.
What is key to point out, widely emphasised during the talk, was that ODR would not be introduced in one fell swoop, but instead would be introduced gradually and improved via feedback. Therefore, the legal backlash towards the proposals could reduce as it gradually becomes introduced.
What became apparent during this talk is that the historic legal industry needs to begin to grow and change by implementing new fast-paced innovatively technology, using it to our advantage and to the benefit of clients. Not only will it help ease access to justice and legal advice for those who may not have it, like Richard Susskind suggests, but it will make the law accessible to the layman and not just someone legally educated.
“Increasing access to justice, to promote the rule of law” – Richard Susskind
If you are interested in watching the talk in full click here