RICHARD SUSSKIND PROPOSES AN INCREMENTAL TRANSFORMATION OF OUR COURT SYSTEM. AND ENCOURAGES READERS TO THINK DEEPLY ABOUT WHAT CONSTITUTES “ACCESS TO JUSTICE” AND “JUSTICE” ITSELF, AS THEY CONSIDER THE FUTURE OF DISPUTE RESOLUTION.
In my introductory post on Legal Services Today, I said I planned to draw attention to people who are making a difference in the way legal services are delivered. I can think of no better example than Richard Susskind.
No one in the last two decades has contributed more to the discussion and examination of how legal services can be modernized than Richard. He is a prolific writer, having written numerous best-selling and ground-breaking books, and one of the most popular speakers in the world of law, having spoken in more than 50 countries. To both his writing and his speaking, Richard brings an uncommonly effective way of connecting with people: he is clear, concise, and entertaining. And, of course, he knows what he’s talking about.
Richard has been focused on the potential impact of technology on law since his undergraduate days. He went on to earn both a degree in law and a Ph.D. from Oxford in Computers and the Law, writing his doctoral thesis on AI and the law in the mid-1980’s.
Richard has become synonymous with technology and the law, and with predicting the future of legal services. While he has contributed enormously on both of these fronts, even more significant to me is Richard’s ability to call on all of us in law always to be mindful of what we seek to achieve for our clients. Richard calls this “outcome thinking,” often using colorful example’s to make his point. A drill company is not selling drills, he asserts, it is selling holes. The driver would rather have a guard rail that prevents her from driving off the cliff, than an ambulance to rescue her at the bottom.
Richard’s latest book is Online Courts and the Future of Justice. I think it is his best yet. Both because of its thought provoking examination of the fundamental objectives of legal service and because it presents pragmatic ideas for improving the quality and availability of dispute resolution.
Online Courts and the Future of Justice makes good reading for anyone interested in legal service. It is particularly valuable for policy makers struggling to deal with modern realities and see to it that everyone has access to justice.
The book details why our current court system needs fundamental reform (it is too slow, too expensive, too combative, and unintelligible; effectively failing to deliver access to justice to more than half of our people) and proposes a transformative new model. As always Richard presents comprehensive, competent data to support his thesis, and clear and sensible recommendations.
I can’t do justice to Richard’s full proposal for online courts in a blog post, but here is the basic idea: Technology today permits disputes to be resolved online. The time, expense, opacity and other challenges that the traditional bricks and mortar, labor intensive judicial model encounter are no longer necessary. Indeed, they are clearly out of step with the way the world now works. It is time for our courts to begin a transformational change to embrace what is possible today.
Richard proposes that policy makers start by carving out a category of disputes to be resolved online (ones with lower economic stakes), and then expand the model, as warranted, from there. He calls this an “incremental transformation,” make real change, but don’t try to do it all at once.
Richard devotes the first quarter of the book to an examination of bedrock issues that underpin our justice system. What exactly is “access to justice?” And what do we mean by “justice” under the law? I found some of the book’s greatest value in Richard’s discussion of these issues.
Richard observes that we commonly confuse access to a courtroom with access to justice. A person with a dispute is not concerned with how or where it is resolved; she just wants a fair and reasonable outcome. Richard suggests that we design a system that can do more than just resolve a dispute. A feature of his proposal he calls “extended courts” would help the parties “contain” the time and money required to resolve a dispute and, even better, help them avoid disputes altogether.
Richard distills seven elements that he says comprise true “justice,” reasoning that justice means more than getting fair decisions from a tribunal once you get there. It also means systems that are accessible to all, procedures that are fair as applied to all, costs that are proportional to the stakes, and more. Richard’s proposed new system is guided by these concepts.
Richard also makes important observations about the advance in technology’s capacity to participate in our justice system. Not only is it more and more powerful, in keeping the Moore’s law, it is more capable (able to do more tasks, including tasks traditionally done by humans), more pervasive (an ever present part of common life experience), and increasingly connecting people in ways that were not possible in the past. Taking stock of what technology enables in every other walk of life not only validates the potential viability of online courts, it makes declining to embrace technology more fundamentally in our courts indefensible.
Richard encourages his readers to engage in outcome thinking as they consider his suggestions for new ways of addressing disputes. What do we seek to achieve for the parties to disputes? How do we enable them to drill their holes? How do we provide them guardrails?
I highly recommend Online Courts and the Future of Justice.