The Online Court Debate
I have been under some attack in the comment section of the online version of the Law Society Gazette. By all means read the exchanges in full, especially to those to whom I have responded, and no doubt it will have advanced since I made this post, but this second post by myself sums up my views.
"Paul (Bennett), you say "online works only within limited parameters. "
Doesn't everything in the law? Currently the most limiting of all parameters, so far as access by the public to justice is concerned, is the cost of the current norms of justice. The Lord Chief Justice said this week that civil justice is now ‘unaffordable to most’. We, as a profession as a whole, should be ashamed of that fact and actively working for change. As with most other areas of service, technology is key to such change. ODR finally moves justice away from being accessible to all 'like the Ritz Hotel ', as Justice Mathews said over 100 years ago, (which was once overcome but returned following the destruction of Legal Aid) but to being accessible to all 'like a Travelodge'.
Paul, you also say, "I have used ODR as a mediator a couple of times, I think it's great and should be more widely available but please acknowledge the limitations rather than dismiss concerns which have merit." That's great that you have helped pioneer online mediation and I apologise if I am wrong , but I imagine you mean you used web/video conferencing or email or a chatroom/forum. If so then, forgive me, but that is not where ODR has now moved to. It offers far more than just a medium for discussion.
For example, ODR systems enable the public to better understand their position and prospects (there are systems operating now by Modria.com - who I advise- with buttons such as 'Do I Have A Strong Case') as well as help with framing their cases and argument and even to the point of brainstorming mutual solutions. All this is done without professional/management cost but that does not obviate the benefit of a lawyer who, through case framing/argument structuring functionality, can get a 'heads up' much more quickly than by sitting down in an office with the client and writing down a statement at professional hourly rates. ODR can help unbundle much case/client prep work and thereby significantly increase the numbers of clients able to then pay for the reduced time of a lawyer to contribute his professional, rather than his/his firm's secretarial/management, skill.
There is also the parameter of variation in lawyer skills/experience/knowledge. Current (not the 'decades away' of Stephen Larcombe) developments using IBM Watson technology (see my blog) help create consistency in advice. Back to Travelodge again but imagine having a MiniMe (as in the Travelodge TV ads) who would, in seconds, give you quality, focused, research on case law, even better, on the statistical analysis of outcomes, agreed and imposed, in tens of thousands of anonymised and unreported, but similar, cases. Suddenly you can offer the benefit of empirical knowledge of the court, judge, and litigants in general, to your knowledge of text book law. You will still be needed for your professional judgment by those who can afford you. Importantly the numbers of those who will be able to afford you will be massively increased, not just by the reduction in your time and fee, but by the much greater numbers of people able to access the Online Court in the first place.
Stephen says " Equally we must also be sensitive to the fact that for many clients legal issues are finely nuanced, incapable of remote analysis by computer algorithms" I agree (although in popular culture the public have come to see such nuances as self-serving creations of lawyers as in the oft mocked phrase of the caricature lawyer ''On the one hand you have a good case but on the other hand.....") You can spend a lot of time trying to identify and understand the nuance. Technology helps clear the fog and better present the nuance to both client and lawyer.
Just as with the power looms that the Luddites marched against, whilst the numbers of employees creating garments by hand may have been reduced by the technology, the market exploded opening up much wider employment opportunities in the industry. Lets not put up protective barriers. You can criticise ODR proponents as myself as living too much on the horizon, or Michael Gove as being too politically motivated, but surely you have to give more consideration before shouting off against the views of vastly more experienced guardians of the law as the Lord Chief Justice and the Master of the Rolls. "