Sounds Good, But What Are We Missing?

Today’s post is written by NSRLP Director Julie Macfarlane

COVID-19 may be the best lesson in a generation (though a brutal one) that we cannot always rely on the same old rules and practices, or we may find ourselves suddenly adrift from everything that is familiar and comfortable.

For example, the courts have always been a place, right? (In contrast to a “service” that does not require a physical presence, as Richard Susskind and others propose.) Moving courts now from being a place to being a service requires the deployment of technologies that, with a few important exceptions, the justice system has resisted for years.

In the “old normal”, lawyers show up at the courthouse at 10am for a hearing that might take place any time that morning, or even afternoon. Judges are accustomed to in-person hearings, and are largely unfamiliar with videoconferencing. Courts are only just beginning to accept e-filing; lining up to file paperwork in hard copy is both an ancient tradition and a modern practice. In a digital era, courts still insist on manually produced transcripts, the costs of which are passed on to litigants. And – a small point, but a telling one – the legal profession (and possibly the medical profession) appears to be keeping fax machine manufacturers in business. (Who else has a fax machine these days?)

But wait! Suddenly in the face of a pandemic there is video and teleconferencing of court hearings, e-filing and e-service, virtual affidavit witnessing, and more…

The good news

There is a lot of talk of not letting this crisis “go to waste” and seizing the opportunity for change. At NSRLP, we are also excited about the possibilities opening up, and the impetus for a real dialogue about making the justice system something that works for real people.

At first glance, there is significant cause for celebration for access to justice (A2J) advocates. A few obvious gains:

• Litigants who cannot get to the courthouse without an expensive journey, taking a day off work, getting a babysitter, etc., and litigants with disabilities who face significant physical obstacles accessing the courthouse, can now participate from home.
• It seems likely that using video or teleconference technology will save the time lawyers spend getting to and waiting at the courthouse.
• Ditto standing in line at the registry to file documents (which for SRLs may require multiple visits as they are tripped up by procedural complexities and impenetrable forms).
• All of which will likely mean a reduction in billing time associated with appearing (and waiting to appear) in court that lawyers pass on in costs to the client.

Many people organize their lives around technology these days – whether that is shopping online or working remotely or communicating via social media – and it seems past time that the justice system get with the program.

But hang on a minute.

Context, nuance, and different experiences

COVID-19 may hold a second lesson for us when it comes to changing the justice system.

When it does embrace change, the legal profession tends to want to move rapidly to a new orthodoxy. I have seen this with successive waves of fashions around dispute resolution. Each, whether mediation, collaborative law, or holistic practice, has elevated a “purist” model (what in the late 1990s we used to jokingly call the “Marxist-Leninist theory of collaborative family law”).

Replacing one set of rules and traditions (for example, no videoconferencing) with another (mandatory videoconferencing) is not going to solve our A2J problem.

Rules mean more certainty and less ambiguity – for lawyers. For litigants and the clients of legal services it means one size fits all.

And one size does not, of course, fit all.

The more complex and challenging alternative course, which we must be ready to accept, is to look at the context in which different people will use new technologies in the justice system, and the nuances in their different experiences. When we try something new, it often turns out to have some unintended and unanticipated consequences. It will not have the same impact or implications for every group of users. New rules need to take context into account, and this requires user input, beta testing, stakeholder consultation, and more.

I was struck by a comment made recently by Van Jones, a CNN commentator, about medical advice to wear face masks during the pandemic. Jones pointed out that wearing a mask is not a racially neutral choice, because of racial stereotypes. A black man wearing (for instance) both a hoodie and a mask – both completely innocent, and the latter a sensible piece of attire in today’s circumstances – may ignite fear and create a misperception of danger for some white people. Another example is the current discussion in Quebec about wearing face masks when there is a law on the books that prohibits Muslim women from doing just that.

The relationship of our ugly racial stereotypes to the imposition of new rules is a sobering example of the need to remember context, nuance, and differential experiences.

Videoconferencing

The decision to move rapidly to a videoconferencing model in order to maintain some court services during the pandemic almost certainly has some very important A2J potential. But it is hardly a neutral decision. It has different consequences for different people.

Some unintended consequences that have been brought to my attention so far include:

• Some parties simply have less bandwidth and less reliable internet service than others (e.g. larger law firms can afford top-notch service). Some have limited data plans. Some have no internet capacity at all.
• Some parties are less confident with and accustomed to communicating through video technology, including dealing with time lags and taking turns speaking. Some SRLs may get drowned out by legal professionals who have more experience using this medium.
• Some individuals may be uncomfortable being seen in their own home, for a variety of different reasons.
• For others, finding a secure and quiet speaking spot from which to participate at home may be impossible.
• Individuals who have been subject to violence and abuse may be very afraid to show their faces on camera.
• Adding to this sense of vulnerability, the potential for participants or interlopers to record proceedings and then share them online is of concern, and not yet clearly understood or constrained. (There may be fixes, but first we have to recognize the problem.)

Flexibility, empathy, and data

These three values (as described in this recent blog) are going to be keyto taking our next steps after the pandemic. What is the “new normal” going to look like?

We need to figure out what we have to do with videoconferencing – and other new technologies that can change the courts from a place into a service – to protect everyone. There is lots of potential here for enhancing A2J, and maybe potential fixes for the concerns articulated above.

We need to remember two things:

• Defaults are dangerous. We have to be careful not to jump to new rules that make it stressful and difficult for individuals to ask for accommodations and “deviations” from the new normal. If we do that, we undermine any advances in A2J. We have to be empathetic in looking for and gathering information on different user experiences and the unanticipated and unintended consequences of using more technology to deliver justice.
• More technology is no guarantee of improved efficiency. Applying automation via technologies to already inefficient processes may simply make them more inefficient. Rather, we have to think about what is the purpose of the process (a hearing, a case management conference, a settlement conference, a pre-trial, etc.), and whether that process first needs to reworked to be more efficient and fairer (thanks to Darin Thompson and Bill Gates for this point).

Adaptability and flexibility are the hallmarks of a great system, but flexibility requires a lot of anticipation of what differential impacts might look like. This means gathering data as quickly as possible in order to understand the impact that different processes have on the most vulnerable people, while at the same time providing efficiencies and conveniences for everyone.

Supreme Court Justice Rosalie Abella said in the Globe and Mail last week, “It’s time to think about designing a whole new way to deliver justice to ordinary people with ordinary disputes and ordinary bank accounts”. I wholeheartedly agree. But let us not in our new zeal forget that there are many different “ordinary” experiences out there.