Online Courts – a Case Study in the Digital Transformation of Public Services

By

EVENT TRANSCRIPT: Online Courts – a Case Study in the Digital Transformation of Public Services

DATE: 1pm-2pm, 4 February 2020

VENUE: Millbank Tower, 21-24 Millbank, Westminster, SW1P 4RS, United Kingdom

SPEAKER: Professor Richard Susskind OBE

EVENT CHAIR: Dr Rakib Ehsan

 

Dr Rakib Ehsan: Ladies and gentleman, if we can make a start, firstly, thank you for making it to today’s event. Well, I’m delighted to be sat next to this very distinguished gentleman indeed and we’ll be talking about his book, the Online Courts and the Future of Justice. A rather..It has definitely captured my interests. So, you all will be able to buy the book at the end of the event for 19 quid, which is…

Professor Richard Susskind OBE: A bargain, a bargain.

Dr Rakib Ehsan: which I think it’s an actual bargain, it’s not even 20 pounds so I think that, you know, I definitely think I could take up that offer. So, let me just introduce the man next to me, professor Richard Susskind OBE, he’s a technology advisor to the Lord Chief Justice of England and Wales, president of the Society for Computers and Law and Chair of the advisory board of the Oxford Internet Institute. He’s the author of numerous best-selling books, including the Future of the Professions, Tomorrow’s Lawyers and one of those… Was one of those books actually with a fellow D. Susskind?

Professor Richard Susskind OBE: Yeah, he’s my son.

Dr Rakib Ehsan: So excellent father son partnership there. So his work has been translated into more than 15 languages and he has been invited to speak in over 60 countries. In the mid-1980s he wrote his doctorate in Artificial Intelligence and Law at Oxford University and now holds professorships at Oxford University, University College London, Gresham College and the University of Strathclyde. Richard is also a fellow of the British Computer Society and of the Royal Society of Edinburgh. So without further ado we will now move on to professor Susskind’s presentation. Thank you.

Professor Richard Susskind OBE: Thank you very much, good afternoon. I’m here to talk to you about online courts. And I’ve subtitled a case study in the transformation of public services through reasons that will become apparent in two or three minutes. I’m here to speak to you for about half an hour and then we’ll have an opportunity for a conversation. Six things I thought we might talk about, one was the problem that led me to write this book in the first place. Secondly the mind-set I think you may usefully have in thinking about the future of courts and actually the future of public institutions generally. I want to introduce what I call the first generation of online courts in the first instance, then take a little deep tour to the world of AI which will allow me to then talk about the second generation of online courts and finally just conclude by suggesting you that we not only have a local challenge here but we have a global challenge. So the problem is that this is indeed a global challenge but only 46% of people live under the protection of the law in our world, of realistic access to lawyers and courts. In some jurisdictions there’s staging backlogs as to say in Brazil for example, there’s a backlog in their courts system of a hundred million cases. In India we have thirty million cases. But even in justice systems and court systems and jurisdictions around the world that take a pride in their legal systems and may call themselves advanced. The reality is for most consumers, for most citizens who have everyday problems, relatively low value, civil disputes. In most countries the process costs too much, takes too long is unintelligible unless you are lawyer and somehow it seems to me at least, the whole process is out of step with the internet society, digital society. Almost a hundred years ago a Celebrated US judge, judge (inaudible), he said there’s a litigant I should dread a lawsuit beyond almost anything short of sickness and deaf. I’m not sure if things have changed that much since then. And here’s a reality that rarely the lawyers in this country for example recommend litigation of the courts to the friends and families. Most people will suggest you try to avoid litigation at all costs. So that’s the problem, the problem is that in a way our system doesn’t scale, with wonderful courts for very large scale disputes, but if you want to set a hundreds or thousands or millions of disputes you need something, it seems to me, that’s designed rather differently. So how do we think will the future, if we’re suggesting that our court system is fundamentally broken and indeed needs to be replaced by something new. It’s the mind-set I always follow relates to the stories about Black and Decker, one of the leading manufacturers of the power tools and apparently when they recruit new executives, they take they sit down in the room (inaudible). This is what we sell, isn’t it? I’d say of course, that’s what we sell. We are Black and Decker; we were always the leading manufacturers of power tools. The truth is with some satisfactions that’s not actually what we sell, because that’s not really what our customers want. This is what our customers want. And it’s your job to find ever more creative and imaginative, competitive ways of giving our customers what they want. And I think it’s a great lesson actually for every one of us in our everyday lives and our careers, but certainly for the court system. But in thinking ahead, I’d like to say that we shouldn’t be only thinking about this power mentality, thinking how do the courts work today and how can we make it cheaper, quicker, better. We should be taking a fundamental step back in asking what’s the basic value that our court systems deliver to society. And in a digital society, might we deliver that value in an entirely new way. In other words, let’s not obsess to much about how we currently deliver our court service, think instead what the purposes and outcomes of that court service are and whether we may achieve these in new ways. And this relates to another distinction by way of mind-set that I want you to think about which led to the subtitle of the talk. The distinction between automation and transformation. Automations what many people have in mind, when they think about technology, they look at the courts that applied technology you take some kind of process, activity, task you systematise it, computerise it, streamline, optimise all this kind of words. But fundamentally what’s going on here is not a change to the underlying activity. It’s an automation. And none of this is what most of people have in mind when they think of technology, look at the courts, they applied technology to make administration work a little more effectively to manage the documents more efficiently and so forth. I’m not really talking about that. I’m talking about transformation and that’s the use of technology in my terms at least the use of technology to allow you to do things that previously weren’t possible. So the whole idea of online courts simply was not possible before the World Wide Web was invented. But given the invention of this remarkable facility it allows us an entirely new way of resolving disputes. And what I find very interesting is that in public discourse there’s a great deal of talk about the transformation of public service using digital technology. But what’s interesting I think is when you are actually given illustration of the transformation, which the presentation of my book is indeed I think, people get very nervous, they say why, I didn’t think of any of that in that radical way, I didn’t really, turns out, want transformation at all, but I really want this automation. And so, I think what policy makers, politicians, most people working within public service when they think of technology are still on the automation mind-set. The transformation which I’m discussing here, except is challenging, is fundamentally different, it raises new issues, but if we’re speaking of a transformation we should be genuine and say that it will look very little like what we had in the past and that’s in the nature of the beast. Let me take you back to 1996 when I wrote the book called The Future of Law, I was predicting then that the dominant way that the lawyers and clients will communicate will be by email, doesn’t sound like a great prediction now, but at the time the Law Society of England and Wales said I shouldn’t be allowed to speak in public and that I would bring the legal profession into disrepute. And I say that today because a lot of people react to the idea of online courts in the same way that they reacted to email 24 years ago. But we are at a time of fundamental change. A time technologically speaking of greater, more rapid technological progress in humanities ever witnessed. Seems to me unprobable, unlikely, that we will just simply allow our major societal institutions like courts to run as they have always been with a little bit of technology grafted on top. No, I think we can do something far better and I call it online courts. Let me talk with the first generation. Although I wrote and thought about online courts in the early 90s in fact, it became a focal point of my own research and advisory work in 2014 and 2015 when I was asked by the Civil Justice Council to prepare a report on the possibility of using online dispute resolution for low value civil claims in this country. I was asked to put together a team of experts, some technologists, some lawyers, some public servants and we came up with this report that we published in February 2015 and that was the first time that this country, let anyone, was advocating that we change our court system pretty fundamentally, yet some of our cases don’t need people assembling and physical court rooms and do not need the presentation of all the evidence. This is, I should say not for all cases, a couple of times a day, but in the first instance anyway and for fairly low value disputes. Later on you’ll see the great splendour in front of you, the book I’ve written on the subject so I really wanted to delve in a greater detail because I was surprised that this strength of feeling that some people had about these ideas, some were remarkably enthusiastic and others were against it. So I’ve been spending some time thinking through the issues both for and against. So the fundamental question I ask and this again goes back to the question of mind-set is court a service replaced. Do you really need physically to assemble in some old building to resolve your differences? Or in a digital society might we find other ways of managing to resolve our disagreements. That’s the fundamental premise. And at its highest level I see online courts are two things – online judging and the extended court. The idea of online judging, remember this is the first generation. The first generation of online courts will have online judges, that’s human judges deciding cases but receiving the evidence and our arguments electronically rather than receiving them through our argument in a physical court room. And they respond electronically with their decisions. They will have some kind of online dialogue with the parties, they don’t assemble in one place. And for many cases I’m assured by judges, again low value cases, it’s both proportional and sensible that the cases often dispose this kind of way. So human judges receiving evidence and argument, you can almost imagine it by emails and attachments, sort of very primitive level. Analysing, prompting, engaging in some kind of discussion, probably far less formal than traditional courts with the parties who come to some kind of decision. Some kind of quick, efficient, fair decision, is the idea. That’s the first premise, online judging. The second is the extended court. Traditionally we thought of courts, understandably, as places where judges issued binding authoritative determinations. But in a digital society, particularly one in which public legal is available to very very few, I take the view our court system should do more. I take the view we should be providing people online with some kind of tools to help them understand their rights and obligations. To help them understand the options available to them. To help them assemble their arguments and organise their evidence and even to provide alternative methods of resolving their disputes alternative to human judges. Not as an alternative outside the court system but as part of the court system itself. So they’re the fundamental components of the first generation of online courts. Judges working online, court service providing far greater assistance to court users. Now little more detail just to capture ten points. The first generation in a nutshell, I express in this way. It’s for low value civil disputes primarily, a simplified public court service, the idea is not that you graph technology on to the old complex system. The master of the rules are lord Dyson at a time when we launched our report in 2015, said that any system that’s got a 2 thousand page user manual has a problem, and he’s referring to the Civil Justice System of England and Wales, such as the vastness of the body of rules that’s way more than that nowadays. So we’re thinking of a simplified set of rules, a simplified process. Using online techniques not as something that’s layered on top of the manual system but as an integral part of the new system. And this will be a service that’ll be affordable, a service that’ll be quick, a service that will be understandable and intelligible to non-lawyers, enabling therefore non-lawyers to conduct their own cases, providing them with tools to assess and formulate their claims, evidence and arguments as I say submitted online, but in the first instance. Not all cases will go immediately to judges, they go to people called case officers, who can often look at cases and see immediately that this is the case that might more sensibly be sorted out by some kind of negotiation or mediation. Or might be able to indicate the likelihood or the prospect of success if it is overwhelmingly, statistically in favour of one party rather than another. This is controversial stuff but the idea is you have these individuals who can help court users without necessarily going to the time expense straight going to judges. When judges are involved, the process is a syncrines. A synclines process in a technical terms is a process where those who’re communicating need to be present at the same time. So, if we speak on the telephone that’s a syncrines process we are about at the same time. If you have a meeting that’s syncrines process, sending an email or sending a text is just a synchronise. You don’t need to be there when the other person’s communicating and likewise when you respond, you don’t need to be there. So it’s a different type of process with the judges. And although I say, finally, in my list of ten, that this is mainly for civil disputes, I believe it’s applicable in principle in family disputes, tribunal disputes, disputes of all the government, and criminal cases. Although I do expect, except in the last category, the criminal does throw up some very specific issues, and certainly for serious crime and that’s certainly not (inaudible) that we don’t meet in the courtroom, I think it’s important that there’s a public denunciation of behaviour that is doomed to be seriously wrong. So that’s the first generation in a nutshell, but it’s a big move. What I’m saying is we will over time shift away from the assumption that all disputes before the courts should be held in a physical space to the reverse. I think maybe within a decade the default setting will shift. Cases will be conducted online unless there are compelling reasons to assemble in the courtroom. And my feeling is once court users see the benefits of this technique and systems, very quickly we will be asking of so many other disputes, why don’t we do it in this way too. The benefits are clear – increased access, far greater access to a lower cost process, fewer cases will actually reach the judges some will be resolved online, some will be resolved by the case officers. It will cost less, it will lose much of the physical stay that costs so much to the taxpayer. But for litigants, for court users, and least for some, this would provide to resolution where today many people who have at least on the face of plausible claims do know where the courts system’s too forbidding, too expensive, they do not understand the process, it doesn’t happen. So here’s a new root, that people can actually have to justice. But even for people who today are in the court system, for today’s self-represented parties, it’s terribly difficult to represent yourself in a court. Sure it’s more convenient, less costly, less formidable, speedier, more understandable. And it might even be for people who represented today, we use lawyers that would prefer this process. This is not a pipe dream. I’ve not generated this from nowhere, there are already examples in England and Wales, in British Columbia, China, Singapore, Australia, United States. The best example I think is in the civil resolution tribunal in British Columbia. But we are seeing evidence in online judging, we’re seeing the evidence of extended courts actually delivering value in my book, I provide for most of these case studies, essentially statistics on the level user satisfaction, which are generally high. But I accept this as a controversial stuff judges without court rooms, justice without lawyers it goes to the heart of the legal profession and of the judiciary. So it’s not uncontroversial. It’s a whole set of objections that I fully understand, people level up the idea of online courts. Some will say it’s an economy class service, others will say surely this is only going to be available to those who can afford the proper service, to assemble in the courtroom. Others say there’s a problem of open justice you no longer build a witness in action. Still others claim that the trial won’t be fair unless you can call participants in the AI and you’re all together surely this is not a fair trial. And of course there’s a question of digital exclusion. All those people who don’t have access to technology will be deprived of access to justice. A different line of argument is that having these systems available might encourage people to be more litigious. It will be easier to raise and pursue actions. And then the legal philosophers come up with a whole bundle of important concerns. Does this not somehow affect the separation of powers, so court system is not just delivering judgements but is also helping parties, this is a new development, traditionally in England or Wales we have an adversarial approach, quite unlikely European continental system of the inquisitorial approach, and we’re not diminishing or diluting the adversarial approach in my model. Or what about litigants with the representation as a concept, should we surely every litigant should be entitled to representation. The common law system itself, the mechanism by which the laws develop might be prejudiced. And finally people say well hang on a second, this is a public sector technology project. Most of this fails so why do you have any confidence in this at all. That’s a full swift of objections, I’m not going to answer them today but it won’t come as a surprise to you to hear that I believe I tackle them all effectively in my book. There are serious objections and I spent about a quarter of it looking at them. This is fundamentally important that I essentially put people at their ease and identify where it is that their perhaps objections are misconceived and where it is perhaps that the balance or the emphasis is wrong. The generality though, I think, most of the critics were lawyers tend to look at lawyers at online courts through legal spectacles as it were, rather than the eyes of the non-legal users. And the more time I spend with non-lawyers I think it’s surely for low value cases just makes sense. And so we have to be careful we don’t evaluate online courts using old categories. More importantly I think, in the name of justice, cause very often people will say to me that it’s a real justice issue here, justice will be denied somehow by online courts. So the name of that, I think the critics lost the opportunity to reduce injustice and not for a second think this will produce a perfect system. But I think it will reduce many of the manifest injustices we find in our current system. But it is interesting that the heading of justice that both opponents and proponents of online courts both rely on arguments relating to justice. I thought that this is weird that in my background I used to teach legal philosophy so I started thinking about this again and identified in both philosophical and public discourse and these seven different ways which determine how justice is used but I won’t detain you with this today I just want you to know that thinking has been done. I do make the observation that often people are making claims of justice they are talking about different types of justice. Some people for example are saying that there’s a problem of distributive justice, which is basically saying this system, this court system is accessible to very few. If the resolution of disputes by the state is a public good, then it’s distributively unjust that it’s so, it’s available on such a limited basis. On the other hand people will say that there’s an open justice issue here that what characterises our justice system is the ability for anyone to walk down the street and to see justice in action. And what I try to do in this book is to way different claims for and against using a technique that is more, I think, prevalent in management theory than legal theory I suggest that actually the yellow line depicting here online courts, the red line depicting traditional courts actually will see a net, a clear net increase to justice under the 7 headings I’ve referred to with the introduction of online courts. Let me take that little (inaudible) to AI now. I wrote my PhD in Artificial Intelligence and law in the 1980s in Oxford so it’s been very much part of my life thinking about the AI. And just to set this up I want to say with some strength that I think almost all the short term predictions being made about the AI generally hugely overstate its impact. However, and actually more importantly, I think most of the long term predictions usually understate this impact. Well, AI changed society, changed the courts, changed the professions over the next couple of years not at all. By 2030, yeah, I think we will see very significant changes, where an increasingly capable systems will be taking on more and more tasks. Many of which should start with human beings which in essence to me defines what’s going to be a very exciting decade, the one that’s just began. A decade of probably a greater change than we’ve seen in the history of humanity because of technology. And in that context then I’ve been interested in the AI in law and how it may change the way the lawyers work. My original project once I’ve finished my PhD, I called it the world’s first commercial AI system for lawyers. I always like this little quotation, it’s from a piece of legislation called the Latent Damage Act 1986 which has this page not entirely familiar. Being no more familiar with this than I. “Section two of this act shall not apply to an action to which this section applies. English is my first language and I don’t understand what that means. It was part of a piece of legislation related to law limitations introduced this very very complex new set of provisions that no one’s understanding. And the leading expert in this area who has chaired a law school in Oxford, he’s been one of my examiners say why don’t we use techniques you developed for your PhD to develop a system that can answer very simple legal question which is when can I no longer raise my inaction into court because too much time has passed. And I understand that this is a complicated question but it’s unbelievably difficult or was at the time because of this legislation. So we developed this system, that was the front screen and I want you to know in 1988 that was cool. This was the days when the floppy disks genuinely were floppy and we put the system into five hundred floppy disks. This system was predicting that technology will change the way lawyers work. This technology will change the way the lawyers work. But the way to understand this form of the AI and this first generation AI, first wave of AI, called the expert systems essentially it was developed in a huge flow chart, a big decision tree of expert human beings. So we had a representation of leading experts, knowledge and interpretation of the series of law in a big decision tree. More than two million passed through that system. But that’s how you developed an AI system in the 80s. You explicitly called it in as it were particularly represented the knowledge as a body of rules. And then, as you will know and largely over the last decade, it’s been a very popular knowledge, we’ve got many kinds of systems emerged. Systems that learn from large amounts of data. So you don’t expressly code in the knowledge or represent the knowledge, the system will learn to identify the correlations, patterns, trends, even make predictions on the basis of its analysis of the huge amounts of data. The best way to understand this is perhaps how we learn a foreign language. When I was at school I learned French, by listing, learning by listing a list of words, we called it vocabulary and I learned the rules of grammar. And in the end it wasn’t great, I didn’t speak particularity well. Couple of people in my class, I remember, went to Paris over the summer and came back speaking pretty fluently. How did they do that? They never remember learning particular words, they don’t know the rules of grammar, what they did was they absorbed huge amounts of data and we have the ability to make sense of that data to allow us to speak the language. That’s an example of almost the second generation of AI in a human being. Learning from data rather than explicitly coding a system. And we are seeing similar things happening at law, Lex Machina for example, is a computer system that can predict the outcome of pattern disputes in the United States, that is said more accurately than any patent lawyer. Patent law again is using huge amounts of data of past cases to make predictions. Now, this can be done in various ways and I won’t trouble you with technical details but it’s a very significant development in my mind, that we are seeing a whole bundle of projects that were devoted to trying to predict court behaviour. In all of this I think very many people wouldn’t have thinking about second generation of AI of online courts get a little confused about AI. They think oh hang on, a judge, a lawyer, they are thinking people, their reason, a computer system can do that and therefore for AI there’s no place in the court system. And that’s to commit of what I call the AI fallacy. It’s the mistaken assumption that the only way to get systems to perform tasks at expert level or a higher is to replicate the thinking process as human species. That’s what we thought in the 80s. We thought US explicitly represented knowledge as a decision tree of trying to copy and paste the reasoning processes of a lawyer for example. But we now see it in entirely different ways of developing high performing systems. So Lex Machina has two hundred thousand records of past cases through the judge laws. Through the lawyer laws, law firm, the name of the party, the size of the client, the nature of the client, it suddenly turns out by using computational statistics rather than the legal method you can predict the outcome of a number of court cases more accurately than a lawyer. Doesn’t reason like (inaudible) No one thinks this is a good idea accidentally. No one is saying the way to get self-driving car is to develop robots who drive normal cars to copy how human beings work, ta would be farcical. It’s same with law, we shouldn’t be trying to replicate and copy the way lawyers work, we should be using the parallel of technology, group forced computing, ability to process huge amunts of data, clever algorithms to produce the outcomes that people want. And people want outcomes from courts, but I’m  not sure whether they want outcomes delivered in judicial ways, the (inaudible). So let’s then get to the second generation of online courts and that is when AI starts taking on some of the jobs. It’s not going to happen for a while but it’s worth thinking about it today. And this goes back to something I wrote about in my PhD, the computer judge, can we, ought we to have machines making judicial decisions. And I think there are three different questions packed away here. First of all, can a machine actually work like a judge, have we got that far in AI. Well, newer psychologically, newer physiologically, judges are a million miles from any current AI system. There’s no way in the foreseeable future, I’m saying never, but for a long time, but for the foreseeable future these machines are not working with judges. What about using AI maybe to deliver what judges deliver today, which is decision with reasons. And again, I’ve been involved with the AI law community for almost 40 years, we are not there yet, but that will happen I think within the next couple of decades. But what about today. Can the online courts deliver the outcomes the parties won, there’s lots of empirical research, parties don’t see what I really want as a person in a wig writing along a report I can’t understand and that’s not what people want. They want the dispute resolved cheaply, quickly, they want often an opportunity to express their reasons, they sometimes want and apology. There’s all bundle of outcomes but very rarely the court users express that in terms of legal paraphernalia. And so I ask this question: why can’t we have a prediction machines. Let me give you an illustration. Thinking remember of this system that we predicted the outcome of disputes more accurately than human lawyers. Bearing in mind this, (inaudible) is another great American judge, once said that the profices of what the courts will do in fact nothing more pretentious. And what I mean by the law, fantasting when you hear the lawyers speaking, they often say things like, when they are advising a client, well, no court will ever accept this or I wouldn’t accept the judge to say that. A lot of legal work is actually prediction of judicial behaviours, so it’s not altogether that fanciful to suggest that predictions are at heart of court and legal service. But my point is something more specific. That’s the idea of predictions as determinations. So think about Brazil again with its backlog of a 100 million cases. No one can convince me that these cases will ever get resolved by human judges, human lawyers and physical hearings, it’s never going to happen. These cases will go unresolved. So what about this as an alternative, you could say to the parties, in your type of case, we actually have a system that contains a huge amount of past data relating to the courts, decisions. And this system can make predictions about the likelihood of success or failure, about the likely outcome in your particular case. You could say to the parties, if the system predicts the outcome with the level of confidence maybe to the degree of 95%. Would you accept that as a binding determination of the court. And my sense is that this is a possibility worth exploring. So everyone gets terribly nervous and upset about AI replacing judges. I’m not for a second suggesting, I say again, that the AI could think and reason like a judge or can produce decisions with reasons. But I’m suggesting we could reconceptualise our idea of abiding court determination based on high confidence predictions themselves based on past human decisions and that’s something I explore not at length in my book, it’s interesting usually discussions afterwards always focus on the second generation, always focus on algorithms and so forth. The heart of my suggestion today is actually human judges’ decisions online. But it’s actually worth looking ahead. There are of course of algorithms, large bodies of data, the well-rehearsed problems of capacity, as to say, most machine learning systems in fact, all really, kind of offer satisfactory explanations of why it is that they came to the decisions and secondly we worry about bias in past data and the bias that people will develop these systems. These are not truly a problem, but again, the problems to which they give rights have to be balanced against the problem of having a justice system that’s widely inaccessible. Let me finish my introduction, essentially, to this subject by discussing the global challenge, remind you that 46% of the people, only 46% of people in our world live under the protection of the law, remind you of this staggering backlogs, for example in Brazil and India. Let me add to that a couple of further interesting stats, that annually about a billion people were in severe need of basic justice care, that in many countries close to 30% don’t even take action, that’s The Hague Research Group in this area. And the UN showed the demand for regulating some of the civil cases largely unmet in most countries. So we have this inaccessibility by the lack of funds. There’s also a more fundamental question and that’s there is a gulf between people understanding their rights and enforcing these rights and I want just to explore this in conclusion, this gulf. So if you have a legal problem, maybe you can go online, do a little bit of research and come up with an answer. They might understand their rights. They equally might go online and not know what websites are reliable and they indeed may use websites that are unreliable. But let’s just say for the sake of argument that you can go online and you can perfectly understand your legal entitlements. Does that give you a remedy, does that mean someone’s passing money to you, does that mean you get compensation? No, because understanding your rights’ entitlements is a million miles from enforcing your rights and entitlements. So a lot of the initiatives we’ve seen in the last over the last few years on websites that help them understand their rights, public legal education so people are more aware of their entitlements, law students’ advice on the legal rights, consumer advice on the rights. None of that, it seems to me, gives you the bite teeth of actually being in the court system because how we’ve bridged the gap historically, between understanding your rights and enforcing your rights is by instructing lawyers who either threaten or do pursue court action, and in so doing you have the shadow of the coercive power state, the ability to, in the end even, imprison people, but certainly big financial awards and so forth. So historically, no amount it seems to me, of understanding the rights has actually given people the bite in the teeth of lawyers and courts who can help you enforce your rights. The trouble though, and this is what I’ve been saying today is that lawyers and courts are too costly, too slow, unintelligible and more. And my thesis therefore is that online courts can bridge that gap. And we’ve seen it in this country with Money Claims Online, which is a simple system that allows you to go online and make a money claim, you fill out a series of forms and from the court will be sent to the other side an official document. That often, of itself, makes people set up and take notice. They are now part of the state system for resolving disputes. There is as I say the shadow of the coercive powers of the state. And I believe that it is a promising development, that we can use online courts, not just to help people understand their rights but to help them enforce them as well. I think this is a global challenge and something I say in the final chapter is, we could use these techniques of online courts right across the world, particularly in emerging economies that are trying to develop new court systems. I don’t think it’s enough to simply obseve that though. I think we should be thinking about how we could perhaps develop some general purpose online courts. Tools, platforms that countries around the world can use without having to develop themselves. So that’s something I’m going to develop, devote some of my time to. Just a couple of final thoughts, I was asked a couple of years ago to give a talk to some neurosurgeons on the future of neurosurgery, I’ve written a book, as I’ve mentioned, with my son, on the future of the professions, so I was speaking to a lot of doctors. And the neurosurgeons asked me to be controversial. So my opening line was that patients don’t want neurosurgeons. Gasp in the audience. I said, patients want health, therefore in that particular type of health problem, I said, you’re undoubtedly the best and so deeply respected, but you are definitely the best answer. But looking forward, I’d say 50 years, I recon, it will be 70 years, it didn’t really matter, it’s just for the sake of argument, that we will surely look back and say that it was unbelievable we used to cut bodies open. Because the future of health care is actually about non-invasive problem solving rather than cutting bodies open. So this idea that you should be asking question what’s the future of neurosurgery maybe get the answer, robotic. Neurosurgery is to ask and answer the wrong question. Questions you should be asking is how in the future will we be resolving problems to which neurosurgeons today are the best answer. And that’s the same question we should be asking in law, about lawyers. Not what’s the future of lawyers or law firms but how in the future will we be solving problems to which lawyers and law firms are currently the best answer. And this is similar with the courts. The question isn’t what’s the future of courts, the question is, how in the future will we be providing state-based dispute resolution to solve the kinds of problems to which today our current court system do answer. And that leads me to a conclusion, and it’s fundamental that people don’t want courts, they want outcomes courts bring. I’ll go right back to the beginning of my few words of today, that people want the whole (inaudible) people aren’t committed to the current process, they want particular outcomes. And this is what the most fundamental challenge to those who are working within the system, that it’s hard to imagine that the market and society don’t want the mechanism that you currently have that underpins your work. And think I wonder if there’s different ways of resolving disputes and if you focus on outcomes which court users want then a whole new set of possibilities unfold. And my purpose today is just to give you a glimpse of what these might look like. Thank you.

Dr Rakib Ehsan: Thank you Richard for that incredibly informative presentation. So now we will be taking a few questions. We will just do this on one by one rolling basis. I’d kindly ask you if you could be quite sharp with your questions and if you can mention your name and if applicable your formal affiliation before asking. Thank you. Gentleman here.

Professor Richard Susskind OBE: Do we need this for…Otherwise it’s just for the people out there can’t hear, online.

Dr Rakib Ehsan: They won’t be able to hear.

Professor Richard Susskind OBE: Yeah. If you can just hold two seconds. I was going to throw it but… Maybe not.

Member of the audience 1: Thanks very much. Michael Latopin from the (inaudible). I’ve read Online Courts and the Future of Justice and I think it’s a fantastic contribution to what is, very important and special to the way we think about law and the way about the advantage for clients. And I suppose I had a question around the gulf that you outlined in the presentation. That there’s a huge degree of unmet legal and despite the fact that people are aware of their rights just not being able to receive remedies. There’s quite a lot of work going on at the moment I am part of advising associate general on public legal education. And we see probably the legal education as more of a complement for the transformation of the legal system rather than a neither or and I suppose that there’s a line in the book where I didn’t necessarily agree with what you described “distortedly public legal education” as not resolving these problems either.

Professor Richard Susskind OBE: Yeah, the distortedly part was that there’s not very much of it yet. There’s loads of talk about it but we can’t really see in this country, I’m not sure of any countries that we have widespread and successful public legal education. The criticism wasn’t of public legal education, it’s about how sparsely that education is actually in place. But I, my criticism, not in that phrase, but more generally is that I think it’s necessary but not sufficient that we’re publicly educated, even to the extent that people need to know that online courts are available, that’s, for certain kinds of cases, that would be a far more proper legal education. But as I try to depict both in words and graphically in the presentation that I think there is a gulf between being educated about legal issues and actually receiving compensation and securing remedy. And that’s what I’m trying to use online courts to bridge. So I wouldn’t want you for a second to think that I’m dismissing public legal education, I think there has been an insufficient investment in that which is my point, but I also don’t want you to think, as I’m afraid many people do think that the answer to the access to justice problems is public legal education. Because that gives you an understanding but it doesn’t give you enforcement.

Member of the audience 1: And I have one very very brief question in addition to that, which is another expression used in the book, that “the irrational rejection is the lawyer who is absolutely embedded in the current understanding of the system, he rejects any proposal for any technological process to improve that access to justice” and I wanted to speak up for that very briefly. I think that there are two things that lawyer is doing. They’re doing the very conservative notion of being (inaudible). But they’re also saying that the proposals for transformation may not be dealing with some of the pale experience throughout the legal aid and the legal need at present.

Professor Richard Susskind OBE: I, I take the point in a way but let me, irrational rejection as I may define is a dogmatic dismissal of a new technology with which the critique has no personal experience. There can be no tolerance in rational discourse for people saying, online courts are waste of time, you then asking, have you ever read about them, seen them or practically do you know what you’re talking about and them saying no. If you aren’t going to take the time, then I don’t think that that forms a credible part of the argument. If after for example reading my book people come back and say, I don’t think it’s going to be a fair trial or are worried about the transparency then we can have a debate. But what worries me is that the visceral is understandable as visceral reaction of many lawyers and judges, which is to reject the idea without doing the homework. And I’ll say again, our system is broken so the least we could do is give some serious thought to new ideas.

Dr Rakib Ehsan: Thank you. Gentleman over there.

Member of the audience 2: I think that the talk was amazing.

Professor Richard Susskind OBE: Thank you very much.

Member of the audience 2: (inaudible) But I’m just wondering, I’m training at the moment and I’ve seen instances where cases have settled just for (inaudible) report. Will online system eradicate that? Because I’ve experienced traffic online court system (inaudible) but with the online system I don’t think there’ll be an opportunity for…

Professor Richard Susskind OBE: No, no, I’ve, in the original model of civil justice country report in Lord Brix’s follow up to that where he supported and build on these ideas and in my book the common architecture is there is a level of the online court which will allow for an encourage informal settlement. So it really doesn’t go straight from problem to judge, I think it’s a terribly important point you raise, but I really want to emphasise that the standard architecture as I call it in the book there I propose expressly and importantly allows for that. So I can reassure you on that one.

Member of the audience 3: Hi, I’m Steve Nelswon (inaudible). My question is around capability.

Professor Richard Susskind OBE: Yeah.

Member of the audience 3: I’ve been trying to implement many of the changes that I’ve recognised from the past examples and failed. What do you think needs to change about the market. And you know the internal capability of the (inaudible).

Professor Richard Susskind OBE: Yeah. I don’t really want to comment on the current reform project which I think is very, we’ve got to inform those of you who don’t know, there’s a very substantial court reform project, investment of over a billion pounds, and a component of that is this. It’s 50 projects involved at least in that and one component is online courts. And generally, I’ve publicly said that I think the project is exciting but is always going to take much longer than everyone at the beginning predicted and I’ll stand by that. Fundamental mistake was made in almost all public sector technology projects, people are too ambitious in time scale, they begin to rush it, the trading, the support, the shortcut and so forth. But I think as a program that’s delivering some remarkable results already. So to give you one illustration, a little more concrete than I was in my presentation and I’m conscious of time, but as an example of the extended court it then defended divorces in this country historically the form’s very complex, filtered by lawyers, 40% of them returned as a reform incomplete by the courts. Instead, as part of the reform programme they’ve developed a system for non-lawyers to fill out the forms themselves. But the kind of form I’m more used to, you can’t get to page two unless you’ve filled page one properly and so forth. The return rate is now less than 1%. So I pick that up as a little jewel on an illustration that good things are happening in that project. But the scale is considerable, the timescales are tight. But the problem to which you alluded that’s why as I said to make it specific to England and Wales it’s a global challenge to land a technology project successfully and I suspect you have more personal experience than I have. But often it starts with procurement, it starts with pro procurement pro contracting from a legal point of view, unrealistic timescales, scope creep, expectations aren’t managed well, poor project management, insufficient training. All these things just cumulate and it is no coincidence that most technology projects in the public sector fail. Indeed, many projects in the private sector fail as well. And so, I say in the book, this doesn’t mean this is a call for doing these projects well rather than doing them not at all, but it is a huge challenge that is also I think an argument, and I think again that in England and Wales they are doing this, if you can be in the jargon more agile or modular, rather than having to rely on delivery of one revolutionally monolithic big bang system, then you will do yourself pride. But it’s not easy stuff. And I don’t know whether or not you were going to this with your question, but the other question I arise is that I deal with that a little bit in the book, a concern is that if the state can’t deliver these projects, you’ll see a private market for online dispute resolutions, maybe where you were going with your question. A private market of online dispute resolutions emerging. And part of me sees fantastic commercial opportunity there, part of me also sees this as a wonderful way for small businesses to resolve disputes far more easily. But in the book the concern I express is I think it’s a rule of law issue here. It is important for the rule of law that we have a satisfactory, relevant, independent judiciary. And if we find over time there’re hardly any cases that’re going to the judiciary, and in a sense private sector options have greater credibility then I think that can dilute the rule of law can affect widespread perception of the authority and abidingness of laws. So I do think it’s important that with a public court system that is fit for purpose. On the other hand it does seem to me and I get emails almost daily on this that the private sector warming up and saying actually we live in a world where there’s lots of disputes. And maybe there’s scope for large scale private sector dispute resolution. And maybe this is an area where there can be public private arrangements too. Did you want to build on that? Ok, thank you.

Dr Rakib Ehsan: Do we have any other?

Member of the audience 4: Just very short.

Dr Rakib Ehsan: Please could you just wait for the… Thank you so much.

Member of the audience 4: My name is Richard Galber. Is there any time limit to the length of time that an online case has been addressed that it can just stop backwards and forwards discussion developed and when would there be a limit on any new evidence being introduced after a while in discussion?

Professor Richard Susskind OBE: These are procedural questions and it differs from jurisdiction to jurisdiction. What we’ve been trying to do in the community around the world is put a very simple set of procedures but it would be absolutely fundamental, I have not seen any system that doesn’t have some kind of time limits. The whole idea is actually managing to progress these disputes and resolve them in a timely way. So simple rules of procedure rather than very complex rules of procedure. But you can imagine a litigator sitting here with you like hang on a second what happens as a dispute arises over the clarity of the rules relating to the extensions of time, for submissions of documents as it were. There’s going to be a whole bundle of satellite litigation arising from this and yes, I can see some of that but if we can resolve 95-90% of disputes using this and without getting ourselves caught up in procedural issues then we will be living in a better place.

Dr Rakib Ehsan: Ok, on that note I’m going to wrap up slightly early so, I know that Richard is in a bit of a rush, so if you fancy having a talk with him obviously, the purchasing of the books as well, just to kindly remind you that this it is in fact under 20 pounds, we are selling it at 19 pounds so please show your appreciation for today’s speaker Professor Richard Susskind.

Professor Richard Susskind OBE: Thank you very much. Thank you.

HJS



Lost your password?

Not a member? Please click here