Professor Richard Susskind Discusses Online Courts

Episode Notes

Transcript

The Digital Edge

Professor Richard Susskind Discusses Online Courts

05/18/2020

Intro: Welcome to The Digital Edge with Sharon Nelson and Jim Calloway, your hosts, both legal technologists, authors and lecturers invite industry professionals to discuss a new topic related to lawyers and technology. You are listening to Legal Talk Network.

Sharon D. Nelson: Welcome to the 149th edition of The Digital Edge: Lawyers And Technology. We are glad to have you with us. I am Sharon Nelson, President of Sensei Enterprises, an information technology, cybersecurity, and digital forensics firm in Fairfax, Virginia.

Jim Calloway: And I am Jim Calloway, Director of the Oklahoma Bar Association’s Management Assistance Program. Today our topic is ‘Professor Richard Susskind Discusses Online Courts’.

Sharon D. Nelson: Before we get started, we would like to thank our sponsors.

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We are very pleased to have as our guest, Prof. Richard Susskind. Richard has worked on technology for lawyers since 1981. He holds Professorships at Oxford, London and Strathclyde Universities and has been Strategy and Technology Adviser for the Lord Chief Justice of England since 1998.

He is President of the Society for Computers and Law and Chair of the Advisory Board of the Oxford Internet Institute. He has written 10 books, including his bestsellers ‘The End of Lawyers’, ‘The Future of the Professions’, and ‘Tomorrow’s Lawyers’.

Thanks for joining us today, Richard.

Richard Susskind: Thank you for inviting me on, Jim and Sharon. It’s been a — I don’t know how long it’s been actually, but it seems like yesterday since last we spoke.

Sharon D. Nelson: Yes, I think it’s been several years. Richard, I had the enormous pleasure of listening to your book talk for Harvard Law School on April the 23rd. That was one of my really fun moments of being quarantined at home; not so many fun moments at home. You’ve been thinking and writing about the future of the legal profession for a very long time, and I have ordered your new book, ‘Online Courts in the Future of Justice’, a month ago; but with the pandemic, it still has not arrived, unfortunately.

So tell us, just to begin, what made you turn your attention to online courts in particular?

Richard Susskind: Well, I’ve been interested as you know in the way in which technology could improve and change the way that lawyers and the courts work for many, many years. In fact, Jim, you mentioned in 1981 I started — I was an undergraduate in Scotland, in Glasgow University at the time, I got interested in law and technology then and it was work in the courts that first attracted me to the field. It seemed to me then, as now, that the courts were fairly inefficient to the antiquated organizations and there must be scope for using technology differently.

So over the years, although I think I’m better known for a work that I’ve done on the impact of technology on practicing lawyers, but I’ve been in the background, again, as you mentioned, Jim, since the 90s, I have been an Adviser of the Judiciary in England on how technology might be used in the courts.

All for me came to a little bit of ahead in 2014 when a body called the Civil Justice Council in England, and it’s a body that advises the government and the judiciary on modernization of the civil justice system. And they asked me if I’d put together a team to look into the potential of online dispute resolution for lower volume civil claims in England and Wales.

As many jurisdictions in England and Wales, a great deal of our system is devoted to settling relatively low volume disputes. And I think the thought amongst those who essentially asked me to set up this group was that some of these low volume disputes might be diverted out of the court system and resolves using some kind of ODR (Online Dispute Resolution). On that view ODR is a kind of electronic ADR, Electronic Mediation, Electronic Neutral Evaluation and so forth.

(00:05:09)

And we reported in 2015 and our report’s fundamental recommendation in a way was that the idea of diverting low volume civil disputes out of the court system was misconceived. If there were decent technologies available, as we thought they were for resolving disputes online, surely we argued these should be part of the court system rather than part of an alternative to the court system. And that led us to recommend the introduction in England and Wales of online course, and we’ll get into the details when they meet in second.

But a new form of public dispute resolution system delivered by the State as formal courts are not a private sector offering, and that’s what we essentially recommended in 2015. But my interest was really piqued then and it didn’t seem to me that we had done enough thinking, enough research about the long term implications of these systems and although the government and the judiciary, to some extent to my surprise, accepted almost all our recommendations, and we’re still in the middle of a £1 billion reform program, which has online course essentially at its heart, but I still felt there was more thinking needed to be done.

So I spent five years immersed in the fascinating subject that really addresses the question that I put to so many people 00:06:41 place. Do we really need physically to congregate together to resolve all our differences, or might there be new ways of delivering public dispute resolution? And what does this mean for justice? Is this going to be a service that meets people’s requirements for justice or somehow weakens these principles of justice?

So that’s why I spent five years writing on. The book came out in 2019, in November. And of course, the virus, the tragedy in which we’re living today was beyond mine and everyone’s contemplation and so it’s been a little bit of a happy coincidence for me as an author that the subject I addressed has now become very much a focal point not only of philosophical speculation about justice, but actually practical policymaking. How do we deliver a court service when physical courtrooms are shot?

Jim Calloway: Richard, I’ve had the pleasure to be our State Bar’s liaison to our Oklahoma Access to Justice Commission for a couple of years, and I thought I knew a lot about that topic. But when you research, you learn more things that you have stated before the world has a huge access to justice issue and studied statistics about that. Could you help our listeners understand or appreciate how much of an access to justice problem we actually have?

Richard Susskind: Yes, it’s remarkable when one delves in. The OECD has said that only 46% of people in our world have realistic access to lawyers and the court systems. In some court systems, in some jurisdictions, the backlogs are absolutely massive. In Brazil, for example, the backlog is 80 million cases, in India, 30 million cases, and during this Coronavirus crisis, we’re seeing an even larger build up of this backlog.

But even in advanced jurisdictions that are proud of their justice systems, the reality is, if I pick civil case as an example, to resolve a dispute for most people takes too long, costs too much. It seems unnecessarily combative. The process is only really intelligible to someone who is a lawyer, and somehow the whole thing seems rather arcane and out of place in a digital society.

So my premise for writing about and recommending online courts was not the virus or anything like that. It was the shameful situation that I think as all lawyers and judges and legal academics we have to face up to, and that’s that most people can actually gain access to the court systems that we hold out as being the public entities that resolves legal disputes.

Sharon D. Nelson: I remember reading a long time ago ‘The Future of Law’, and I have heard a podcast that you did with someone else and you talked about what you got right and what you got wrong. So I think there’s been some real change in what you’re thinking about the future of law. How would you describe that change, Richard?

Richard Susskind: Well, ‘The Future of Law’ was devoted largely to thinking about the future of legal practice and the future of law firms. And my book, ‘Online Courts and the Future of Justice’ is pretty similar only that relates to the court system.

(00:10:00)

I sometimes joke that I write the same book every four years, and it’s not entirely nonsensical because the underlying principles that have driven me about exploring the way in which technology can help us to deliver legal and court service better, that hasn’t changed. What changes is the underpinning technologies, and so the theme although I touched on this in 1996, much of what we were focusing upon there was automating the work of lawyers.

Although, I done my PhD in Oxford in the 80s in Artificial Intelligence, it wasn’t that much really about AI in my ‘96 book. I think we have seen since about 2011-2012, a huge upsurge of interest in what I prefer to call increasingly capable machines. Our systems are taking on more-and-more tasks, many of which historically were thought to be the exclusive province of human beings, and that’s been a major shift. The technology itself is coming on in leaps and bounds.

I should say though that the first generation of online courts that I have in mind is actually still human judges making decisions essentially without being in physical courtrooms. The second generation raises this whole question of Artificial Intelligence, might be that some binding decisions could emanate from a court system without they are having been a human agent involved in decision-making, could we have AI-based judges? Of course that’s hugely controversial. My answer to that is very qualified, but this wasn’t really a discussion we could meaningfully have in the mid 90s.

Jim Calloway: Richard, I know that you believe and we agree that we have largely grafted technology onto the way we traditionally practice law rather than letting technology evolve it, do you believe that it’s changing more now?

Richard Susskind: Not nearly enough. This is for me the fundamental distinction in the world of technology between what I call automation on the one hand and transformation the other. Automation is when you take some kind of inefficient pre-existing process and apply technology to it and make it more streamlined, and improve and optimize it and so forth. But essentially, I think it’s fair to see what you are creating is mess for less. You’re taking often a messy process and taking some cost out of it or making slightly more efficient.

The real power of technology and contrast surely is to use it not to automate our past practices but to allow us to deliver services, to resolve problems that previously weren’t possible without technology.

So this is the joy of the online court. We couldn’t have had a discussion about online courts in say the late 80s because the worldwide web didn’t exist, that platform, that enabling technology did not allow us, for example, to have cases by videoconference or to have cases submitted and responded to by the Judge on the papers alone. So the exciting thing for me there is, we’re not simply, as you put it, grafting the technology onto the old process, we’re allowing new technologies to give rise to an entirely new way of resolving the problem.

And similarly in legal practice that’s always been my passion, don’t simply take the work of lawyers and substitute some of it by using some computer technology, ask yourself whether or not we can move away from the one-to-one consultative advisory model for delivering legal services, to some kind of perhaps one-to-many information service, an online legal service, that’s the excitement of technology.

And if you look at the history of technology right across the professions, the first 50 years have been about automation. They’ve been about using technology to streamline and optimize, support and improve our old ways of working.

Jim Calloway: Before we move on to our next segment, let’s take a quick commercial break.

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(00:15:08)

Sharon D. Nelson: Welcome back to The Digital Edge on the Legal Talk Network. Today our subject is ‘Professor Richard Susskind Discusses Online Courts’. Richard holds professorships at Oxford, London, and Strathclyde Universities and has been Strategy and Technology Adviser to the Lord Chief Justice of England since 1998. He has written 10 books, including ‘The End of Lawyers’, ‘The Future of the Professions’ and ‘Tomorrow’s Lawyers’.

Jim Calloway: Richard, when you mentioned some of these alternatives, particularly decisions rendered by artificial intelligence, I can feel the whole of bench and bar quaking in response to that. It’s no secret that a lot of lawyers and judges have been opposed to online courts for a long time. Why do you think that true?

Richard Susskind: Well, I think it’s precisely because they often think that what we all have in mind is some kind of robotic resolution of legal problems, but I stress again, I see these online courts evolving in two stages. One where it’s human judges making decisions, but they are not physically convening in a courtroom; and secondly, and later on there is this possibility of some of the decisions being made in radically different ways.

So I think there is a nervousness about increasingly capable machines, about artificial intelligence, but there is also I think, and this is not unhealthy, there is a deep-seated belief that the traditional way of delivering court service delivers just outcomes, that it’s appropriate, it’s good and it’s a fine and indispensable element of society, and I think with some justification lawyers and judges are hesitant about jettisoning some of the tradition.

I argue of course that because we have such severe access to justice problem, we have to think of different and new ways of delivering service. But I am not surprised that people are hesitant.

We also see the hesitancy in legal practice. I think longstanding practices are well entrenched, it’s the comfort zone of many lawyers and judges. It’s a way of working with which they are happier and of which they are proud. Many senior individuals don’t really feel ready fundamentally to retrain and enter the new digital world. And so to essentially revert to or want us to stay where we are is a natural human reaction. I don’t think it’s healthy for our society and for the economy and that’s why I push in the other direction, but I do understand why it is that people are hesitant.

What upsets me is what I call irrational rejectionism. That’s the dogmatic dismissal of technology with which the critic has no experience. So while I am comfortable enough when people bare their souls and say that it’s not easy in midstream to change the way you work and less comfortable when people are not prepared to at least look at the technology and see what it can do and deliver.

Sharon D. Nelson: It’s been my observation that lawyers and judges are thinking not just a little differently but a lot differently about online courts since the pandemic hit us. Do you agree with that, and if so, how do you think their thinking has changed recently?

Richard Susskind: You are absolutely right there and it’s been forced of circumstances, necessity being the mother of invention as everyone is saying, but the reality is, if physical court buildings are short, then we have a stark choice. We either delay justice indefinitely or find different ways of delivering justice services.

Now, I want to stress that the most successful current technology in the crisis, which is essentially a form of video hearing is not precisely what I had in mind when I talked about online hearings. When I talked about online courts I am essentially talking about a process where there is no physical hearing but there is no video hearing either. There is not a hearing. What happens is the parties submit their evidence and arguments electronically, like an email in some ways and the judge on the basis of that evidence and arguments responds.

So it’s a paper hearing, it’s a written hearing, it’s an asynchronous process. The parties don’t need to be gathered together at one moment in time. Now, that is going on a bit, for example, the recent decision, the Supreme Court of Norway in a difficult criminal case, there was a paper hearing. But the fundamental shift in most jurisdictions has been from the physical courtroom to the hearing by Zoom or Skype or Microsoft Teams, that kind of use of technology.

(00:19:46)

And it’s too early to be definitive, but the anecdotal evidence and the semi-systematic evidence is suggesting for many judges and lawyers, it actually is working a lot better than they anticipated and the long-term impact of this I think is very clear. It’s not that we will simply continue using the systems in the current way, we will need to scale, we will need to industrialize, we will need to put all sorts of precautions and process in place indeed to industrialize this.

But the notion that many hearings that we are now seeing can be conducted effectively, efficiently and in accordance with justice across some kind of video link, the notion we would jettison these and go back to the unportable, inaccessible system seems to me to be unsustainable.

So this has fundamentally accelerated I think many of the modernizations that many of us had in mind. Above all else, I think it has open people’s minds, it’s open people’s minds to the idea that a court is not necessarily a physical place, that a service by judges can be delivered virtually, can be delivered using technology. And I think we will see a shift from people assuming that this was not possible to wondering where it is now applicable.

Jim Calloway: Richard, obviously we are not going to get to universal online courts or even widespread online courts overnight, how do you think the process might proceed, what are the first steps and kind of cases that might be suitable for online courts?

Richard Susskind: I think it’s wrong to think that we will ever only have online courts. I see a future where we will have a court service that delivers its service through a variety of channels. I have no doubt for complex cases and for cases that raise crucial questions of principle and in many other circumstances we will still think physical hearings are sometimes necessary. Sometimes maybe video hearings, maybe even audio hearings and also I hope a big move towards the paper or written hearings. But the court services I say will be a blend of these various channels.

And so what we need is our court services as never before to think strategically, to try and put together a vision; it may be 2025, it may be 2030 of what that kind of blended service might look like, identifying as you have raised a crucial issue, the cases for which these various technologies are best suited. Indeed, it’s more granular than that we need to go, because it’s not just individual cases, it’s parts of the cases.

We need to think which interim interlocutory hearings in England for example could best be done by video hearing rather than physical hearing.

So it needs a deep analysis of our current system, a breaking down of all the component parts and identification of the most relevant channels for each of these parts. That’s one approach, but to some extent that’s still automation.

I am more ambitious than this. I think we need to take a step back and ask what outcomes is it we are expecting of our court service.

I often tell the story of a talk I gave not long ago to a couple of thousand neurosurgeons and they asked me to be controversial, and the opening line was that, patients don’t want neurosurgeons, gasping audience; I said patients want health, and it’s your job not to ask the question what’s the future of neurosurgery, but to ask the question how in the future will we be solving problems to which neurosurgeons today are currently the best answer.

And when you think in health, the answer comes in noninvasive therapy, that the future will not be cutting bodies open, whether robotically or humanly, it will be noninvasive therapy.

We need that kind of mindset Jim when we are thinking of the future of our court service, not how do we automate our current processes, there will be a lot of that, but we also need to make that jump ahead and ask what’s the fundamental purpose of the court service we provide and in the future how can we deliver according to that purpose using existing and emerging technologies.

That’s sort of a mixture of automation and transformation, but to do this you have got to be engaged in what I call vision-based rather than legacy-based thinking. Legacy-based thinking is walking backwards into the future, it’s thinking what do we do today and how can we improve upon it a bit.

Vision-based thinking is having this clearer, exciting, easily communicated vision of how it is a court system might work in the future and then the question is how do we get there from here.

Jim Calloway: That’s fascinating. Before we move on to our next segment let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to The Digital Edge on the Legal Talk Network. Today our subject is ‘Professor Richard Susskind Discusses Online Courts’.

Richard holds professorships at Oxford, London and Strathclyde Universities and has written 10 books including ‘The End of Lawyers’, ‘The Future of the Professions’ and ‘Tomorrow’s Lawyers’.

Richard, one of the more controversial aspects of your book, maybe the most, is the idea that artificial intelligence ultimately might be used rather than human judges. Would you explain how that might work and why we shouldn’t be afraid of it?

Richard Susskind: I can certainly explain why or how it might work; I am not sure I can explain why we might not be afraid of it. But let me explain or warn in the first instance that there is a lot of nonsense talked about AI. I believe that most of the short-term predictions being made about artificial intelligence in law and artificial intelligence generally overstate its impact; however, I believe most of the long-term predictions understate its impact.

But in relation to law and judges and AI, I think we have got three separate kinds of questions we might ask. We might ask can a computer, can a machine undertake judicial work in the way that a human judge does? And the answer to that we can immediately say neuropsychologically, neurophysiologically is an emphatic no, we are nowhere near that.

You might say second though, what about a machine that can provide decisions with reasons in the same way as the output of a judge is a decision with a reason? Now, here, although there has been marvelous work done in the field of artificial intelligence and law, I would say we are also a great distance away from having systems that are sufficiently sophisticated that could offer decisions with reasons as some kind of replacement for a human judge. So I think we can reject that as a practical option for the next couple of decades at least.

But there is a third option and here we should look at the work that’s being done in the prediction of judicial decisions. You will know that our systems now, of which they are said that they can predict the outcome of the decisions of courts more accurately than human lawyers. Now, these systems are getting better and better.

So in the book I say, it’s not really advocating this, I am just simply raising this as a possibility. Imagine if these systems really do continue to improve and can predict the outcome of courts on a very high level.

And let’s go to Brazil, where as I mentioned earlier, their backlog of cases extends to 80 million. So imagine saying to someone who has a case within the court system, you are 80 million from the queue, it’s very unlikely that your problem will be solved ever by human lawyers and judges in physical courtrooms, but in your case we have all the past decisions for your kind of problem in a system and this system better than any lawyer can predict the likely outcome of your case.

So you could say to both parties, in your case if this system predicted an outcome say with a confidence level of greater than 98%, would you be willing to accept that as the equivalent of a binding decision of a human judge in the court service? And it seems to me for the sake of moving on, for the sake of having a resolution at least some people might opt for that. And that’s where I think within the conceivable future we could have AI undertaking in a sense some kind of judicial work. But I say this very guardedly and very cautiously. I don’t want for a second to be quoted as saying that judges are going to be replaced by AI, but I can conceive of how it is that we can use the power of technology to allow us to deliver through a public dispute resolution service a binding resolution using AI technology.

Sharon D. Nelson: Well, I think it’s true that both Jim and I agree with you and also Jim and I would really like to thank you for joining us today Richard. This has been a very strange crazy time for all of us, but it has advanced the practice of law considerably which is amazing. And I love listening to you talk, you are so intellectually stimulating and I could listen to that accent forever. So thank you for being with us.

Richard Susskind: So I was going to say something humorous about my accent, let me just say instead, thank you very much. As always that’s been a great pleasure.

Sharon D. Nelson: And that does it for this edition of The Digital Edge: Lawyers and Technology. And remember you can subscribe to all the editions of this podcast at legaltalknetwork.com or on Apple Podcasts. And if you enjoyed our podcast, please rate us in Apple Podcasts.

Jim Calloway: Thanks for joining us. Goodbye Ms. Sharon.

Sharon D. Nelson: Happy trails cowboy.

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