The COVID-19 pandemic has changed the way the world operates. Travel restrictions, mask mandates and stay-at-home orders have forced us to rethink how we do business. The legal profession has not been immune to these changes.
Many procedures that had required in-person contact has been moved online. Attorney and legal technology expert Richard Susskind joined American Bar Association Immediate Past President Judy Perry Martinez to discuss the future of online courts and more at the program “Online Courts and the Future of Justice” during the ABA virtual 2020 Annual Meeting in August.
Susskind, an expert on legal technology for more than 30 years, has authored many books on the topic including “The Future of Law” and “The End of Lawyers? Rethinking the Nature of Legal Services.” He is also a professor and an independent adviser to major professional firms and national governments, specializing in the future of professional service.
“The biggest impediment to legal services delivery is lawyers themselves,” Susskind said. He added that this is unintentional and insisted that lawyers are not trying to limit access to justice. He just believes that they are “deeply entrenched” in their ways and that it is hard to change.
He said the legal system “costs too much, takes too long, and is unintelligible unless you’re a lawyer.” What needs to change is the “mindset” of lawyers. He pointed out that the delivery of justice is “stratified” where certain members of the legal profession only serve certain types of clients. He called it “a point of shame” that so many people cannot get access to justice, citing a study by the Organization for Economic Cooperation and Development that says fewer than half of people have realistic access.
But Susskind sees the COVID-19 pandemic as a “massive, unscheduled experiment” for new processes in the delivery of legal services, which gives people a chance to see what works well and what doesn’t. Court procedures were forced to adapt and move to a digital platform. The alternative — the possibility that no one would have access to justice — was what Susskind described as “a scary moment.”
He pointed out how the move to Zoom calls and online meetings exposed people a bit. Lawyers and judges had no tech support and were alone in their basements trying to manage new technologies. Susskind described it as “humbling and character building, and a bit of a leveler.” But he said the forced pilot program has helped people develop new skills and efficiencies.
Susskind’s website, Remote Courts Worldwide, monitors and reports on court processes around the world. It notes how 56 countries have adapted to new digital processes due to the pandemic, whether they are video, phone or email.
Going forward, Susskind believes law schools should help new lawyers become comfortable with delivering services in a digital age. He said that among practicing attorneys, older ones are more open to the new processes and that younger lawyers tend to be more conservative.
Susskind warned against the impulse to “just drop the current process into Zoom.” He said the real power of technology should be to enable lawyers to meet their fundamental objectives by using it to deliver court service differently and not simply to automate how they currently conduct business.
“If you had to start with a blank sheet of paper and engineer a justice system from scratch … would you build an artifice that was very different from the one that was designed?” Susskind asked. He stressed the importance of concentrating on the goal more than the process.
Susskind also said that people don’t want lawyers — they want justice. So, lawyers should look at ways to make technology provide it.
Martinez and Susskind also discussed regulatory reform for law practice. Susskind believes consumers of legal services should have more options and that regulations should be loosened. He said that Great Britain relaxed regulations in 2011 and the move did not result in disaster.
“Lawyers should thrive because they bring value,” he said. “Not because they regulate others out.”
Susskind believes court rules and procedures should be simplified and tools should be available on the front end of the process to negotiate and solve problems rather than litigate them. He calls it “dispute containment” rather than dispute resolution. “Better to have a fence atop a cliff rather than an ambulance at the bottom,” he said.
Susskind pointed to Canada’s Civil Resolution Tribunal in British Columbia as “the poster child in the world of online courts.” He said that it is an easy-to-use platform for pro se litigants and has a very high degree of user satisfaction.
While Susskind wants the legal profession to move forward, he is not advocating all-digital court proceedings after the pandemic. In-person trials, especially for serious crimes, are important, he said. And while he does not want to go back to “the old ways,” he also does not believe that a massive transformation can be done overnight. It should be achieved incrementally.