Richard Susskind – How Technology Will Change Justice

Episode Notes

Transcript

Law Technology Now

Richard Susskind – How Technology Will Change Justice

01/08/2020

 

Ralph Baxter: Welcome to Law Technology Now. I am Ralph Baxter and I will be your co-host today. This is my third episode of the show.

 

Our guest today is the world renowned advisor, author and speaker on technology and the law, Richard Susskind, and appropriately we are recording this episode in London.

 

Before we get started I want to thank our sponsor. Thank you to our sponsor Headnote, helping law firms get paid 70% faster with their compliant e-payments and accounts receivables automation platform. Learn how to get paid quicker and more efficiently at headnote.com.

 

So I have known Richard Susskind for at least 20 years. He is without a doubt the world’s leading voice for the modernization of legal service, particularly changes that are enabled by technology.

 

In addition to his law degree, Richard has a PhD from Oxford in Computers and Law, and I think that’s material to having confidence in Richard’s recommendations about law and technology.

 

Richard has served as the Technology Adviser for the Lord Chief Justice of England and Wales since 1998. And he was recognized for his public service by being appointed to the Order of the British Empire several years ago. And quite relevant to this podcast, he has a new book which we will discuss, ‘Online Courts and the Future of Justice’.

 

Before we get into the book I would like to ask Richard a couple of questions that will help our listeners understand him better as a person.

 

So first Richard, how did it come to be that you focused on this intersection of law and technology?

 

Richard Susskind: Thank you Ralph and it’s great to be on your show. The history of all of this goes back to 1981. You have to imagine IBM had just invented the personal computer. I was a law student in Glasgow, Scotland and it occurred to me then that much of what lawyers did was extremely document and information intensive and I wondered whether or not this emerging phenomenon, the computer might have some impact.

 

And so I had the opportunity as a law student to write a dissertation on a chosen subject and I chose computers and the judicial process. That led me to the field of artificial intelligence and I discovered at that stage there were only 26 things written in the English language in the field of AI and law in the early 80s and I felt this would be a good area for further research. So as you mentioned, I then went to Oxford to do a PhD on more specifically the use of artificial intelligence and law.

 

Ralph Baxter: Well, it’s paid off and it’s been a benefit to all of us.

 

So since at least 1996 with your book, ‘The Future of Law’, you have been the most outspoken voice for the coming profound change in the way legal service is delivered. In fact, you have become kind of a shorthand for this subject, as Richard Susskind says, people refer.

 

So looking back now, as we are here in 2019, what report card would you give yourselves on those predictions?

 

Richard Susskind: I am always a little bit cautious about marking my own homework, but in 1996 in that book ‘The Future of Law’, I essentially made a 20 year prediction about transformations we might see in the way that law is practiced and in the way the justice is administered in the courts.

 

I think roughly speaking I got the direction of travel right probably five years out. I reckon my predictions in a couple of years, most of them will have come to be the case. But some of them in retrospect were rather frankly prosaic.

 

For example, in the mid-90s I was making a big thing of email saying that the dominant way that lawyers and clients would communicate in the future would be by email. The Law Society of England and Wales responded that I shouldn’t be allowed to speak in public and I was bringing the legal profession into disrepute.

 

I was also anticipating in the mid-90s the wider use of the web. I said the web would become the first port of call for lawyers and judges undertaking legal research. Lawyers and judges in turn said that I didn’t understand the practical and indeed the cultural significance of the law library.

 

(00:04:54)

 

And I say this because we shouldn’t forget how far we have come in two decades, some technologies that now seem remarkably straightforward are now mainstream. And so when I talk about more advanced technologies, I say for example of online courts, they are way more likely today than email was in 1996.

 

Ralph Baxter: You couldn’t be more right about keeping this all in context. It’s pretty common for people to think, well, we are really not making all that much progress. It’s also quite common for people to think that dramatic change is just around the corner, neither of which is right.

 

We are at an early stage of what will be profound change, but it’s still early, but it’s moving right along, and as you point out, some things that now seem commonplace, seemed like science fiction not too long ago.

 

Richard Susskind: I think that’s right. I think we should distinguish between automation though and transformation. The first 40 years of legal technology have been largely about grafting technology onto the traditional way we work. The difference we are going to see in the 20s is where the technology in a dominant way will come to replace rather than augment a lot of our old traditional legal practices.

 

Ralph Baxter: This is one of the fundamental points that Richard makes about the way technology and humans will work together in the future. The technology will in some cases do the work humans previously had done, and when it does it, it won’t do it in the same model, in the same way as the humans did it. It won’t imitate the humans, it will find its way, which if we play our cards right will be better.

 

One third personal idea about you, you have three adult children, all of whom interestingly are focused on technology in one way or another, but in very different settings than you. And you have one grandchild Rosa and you dedicated this new book we are about to talk about to Rosa. Why did you do that?

 

Richard Susskind: First of all, I love the little girl like nothing on earth, but secondly, it had allowed me to have a thought experiment, an interesting introduction to the book I think, where I speculate what Rosa might think in 20 years time when she picks up this book and she sees my handwritten dedication as well as the printed dedication, and I speculate that she will wonder why on earth her grandfather wasted so much time spending 350 pages arguing for the glaringly obvious, which is that at least some of the work of our courts should be conducted online.

 

Ralph Baxter: Obviously Rosa is young. Rosa is about one year old and so in 20 years time she will be 21.

 

Now, this new book is my favorite of Richard’s many books and I have liked them all. I think it’s remarkable, it’s thought-provoking, but in particular it’s focused on a particular objective, the creation of online courts in ways we are about to talk about.

 

And also in particular it delves into the fundamental issues that we all talk about, we all take for granted as though we know what they mean, access to justice, the rule of law, justice itself, in a way that helps the reader think more fundamentally about what we are trying to do here, because if we do that, if we think about what are we really trying to achieve, then we can do a better job of making the changes we are in the midst of making.

 

And so to me that’s a big part of why this book is so valuable. I encourage everybody who reads it to really pay attention to the first third of the book, which deals with those subjects.

 

So let’s start with a simple question, online courts and the future of justice, so what is an online court?

 

Richard Susskind: I have my own definition that hopefully is helpful. I think of two generations of online court. The first generation itself has two aspects. One is what I call online judging and that’s the idea that you will have human judges making decisions on the basis of evidence and arguments submitted to them electronically. No oral hearings, no physical get togethers.

 

I ask the question, is court a service or a place, do we really need physically to congregate to resolve our differences? And having trained and spoken to many judges over the years, it is absolutely clear that at least some cases can effectively, efficiently and justly be disposed of by judges receiving arguments and evidence in electronic form. You could imagine it as simple as an email and responding with their binding decisions in a similar form. So that’s the crude idea of online judging.

 

The second aspect is what I call the extended court and in some ways that’s more radical. I really ask here the question, in a digital society whether or not we might make our courts more useful, extend them beyond providing binding decisions by human judges?

 

(00:09:54)

 

And I link this to the problem we have everywhere of diminishing legal aid, the problem we have everywhere that people cannot really understand their entitlements without expert guidance. And so I suggest that a legitimate, indeed appropriate and useful way that our courts in the future could work is by offering online guidance, helping participants, court users to understand their rights for entitlements, helping them understand the options available to them, helping them prepare the arguments and evidence, also providing opportunities to resolve their differences using alternative methods, not as an alternative to the court system, but as part of the court system.

 

So it’s now possible in a digital world to offer an additional layer of help to court users in a way that simply wasn’t even conceivable before the development of the World Wide Web. So online judging on the one hand, the extended courts on the other and that’s the first generation.

 

The second generation is even more contentious. That’s when we can imagine at least that some of the decision making made by human beings and particularly by judges might be taken on by some form of artificial intelligence. Now, I don’t want to overstate this, I don’t want to say it’s imminent, but it did seem to me it’s a possibility worth debating and discussing and I gave an illustration of how this might work out.

 

Ralph Baxter: So in the book you propose a way that this — that introducing online courts might begin, can you talk a little bit about the stakes of disputes that might be subject to online courts at the beginning and what kinds of disputes they would be?

 

Richard Susskind: I anticipate in the first instance that the best suited cases for online treatment will be relatively low value civil disputes, perhaps some family disputes, some government or tribunal disputes as we call them in the UK. I am not suggesting yet, but I think the day will come that we jump in and use these techniques to resolve major commercial disputes or issues that raise fundamental questions of public policy or social controversy.

 

I am suggesting that the lion’s share of lower court work, which is dealing with relatively low value, everyday issues might be dealt with differently.

 

Ralph Baxter: And then from the experience any jurisdiction might have using online courts for such disputes, those jurisdictions could move on to such additional uses of online courts as might be warranted.

 

Richard Susskind: I think that’s right and consistent with what we have seen in the whole discipline of disruptive technologies, what we generally see is that these technologies take hold, as it were, at the lower end of the market and once they are in play people ask the question well, why couldn’t we use them here, there and everywhere. I think it’s important when you are introducing new technologies not to be too ambitious.

 

So both as a matter of social necessity and as a matter of good technological practice, I say we start at this and I put in inverted commas lower end of the market, and I say this in inverted commas because of course even low value disputes for individual citizens can actually be fundamental to their lives.

 

Ralph Baxter: That’s right. And as you talk about — and that’s a very important idea, the stakes to the individual are high even if the dollar amounts or the sterling amounts aren’t so high.

 

And you talk in your book about keeping things proportional, expending resources in a way that makes sense in light of what the economic stakes of the matter are, which is an important part of this.

 

So you are talking about introducing online courts in a way that will be gradual, but on the other hand introducing online courts at all is quite a radical idea. Having courts that don’t have bricks and mortar, where everything is virtual or is online, what’s the case for making such a radical change in the way we organize our courts?

 

Richard Susskind: I think, because I agree that the case is quite compelling. According to the OECD only 46% of people on planet earth live under the protection of the law, that’s only 46% of realistic access to lawyers and courts. In some jurisdictions the backlogs are staggering.

 

If you take Brazil for example, they have 100 million cases in their court system, 30 million in India, but even in advanced jurisdictions and I will pick our own, in England and Wales, and we are proud of our system, the reality is that resolving disputes, particularly as I am discussing low value disputes, takes too long, costs too much, is a highly combative process, it’s unintelligible to anyone but lawyers and somehow seems out of step in a digital society.

 

(00:14:50)

 

Ralph Baxter: It seems compelling to me. In fact, you say in the book that when you really think about it, it’s self-evident that we need fundamental change. This is one of the ways that we can see that law has not kept pace with changes in the world that most businesses and even other professions have embraced.

 

Well, I want to drill down now on some of the specifics you have just mentioned. So one issue that’s implicated by what you have said is something we have come to think of as access to justice, and I think most of the time when people think about access to justice, they are thinking about the ability of people, and as you say the majority of people in the world really don’t have access to justice and even in the United States and in England and Wales it is true.

 

But when most people think about it, they think about finding their way to a courthouse and getting into litigation. In your book you expand on the idea and you come to what’s really — what really is required to achieve access to justice. Could you talk a little more about that?

 

Richard Susskind: Yes, and a little bit by way of background, when I was in Oxford, I was a tutor in jurisprudence and legal philosophy, so I have been immersed in the justice literature for many years and always been conscious that a lot of the discussions about justice according to the law and access to justice are rather shooting from the hip conversations as opposed to more rigorous studies, so I wanted to bring a little bit of rigor to it.

 

But secondly, what I was finding in relation to online courts was that people were invoking the concept of justice both to defend and to attack it. Some people were saying these kinds of technologies are affront to justice and others were saying this is the way we can increase access to justice. So at the very least it seemed to be we needed a more systematic analysis of some of the concepts of justice.

 

And one of the subdivisions that you are referring to was this idea that we should think beyond access to justice as about dispute resolution so that any, it seems to me, worthy justice system will not just provide the facilities for resolving disputes, but will also encourage disputes to be contained.

 

I am afraid that our current system, lawyers, judges, court procedures and so forth are often more inclined to escalate rather than contain disputes, and this is rarely in the interests of those who are in war, and it has become war, it’s become combat and I say we need to contain the disputes.

 

So as well as dispute resolution, access to justice should involve dispute containment, but I go even further than that. As I am often told when I am speaking to say chief executives of businesses, they want to avoid problems in the first place. I describe this as wanting a fence at the top of the cliff rather than an ambulance at the bottom, and so it seems to me we should extend from dispute resolution and dispute containment to dispute avoidance as well.

 

Ralph Baxter: Right. And you have a fourth idea, which is in a perfect world we achieve a system in which citizens and businesses are promoted to have legal health, to think about their legal issues in their lives and their businesses in a way that are truly proactive and reduce the incidence of the need for law to begin with.

 

Richard Susskind: Yes, I call this legal health promotion. I think most people think of the law as something that restricts or prohibits, but actually the law confers entitlements. It allows us to make wills. It allows you and I to enter into a contract with one another. It allows us to have security of employment. It seems to me that that’s a vital justice conferring role of law in society.

 

Ralph Baxter: So I think this part of the book is truly provocative for all of the people in the world who are working to increase access to justice and most of the time that’s for those of low and moderate income, the ones that are most vulnerable, don’t have the resources to go through the conventional cost and so on of legal service, but I think these ideas really apply to everyone.

 

Your discussion of dispute containment really is eye-opening. You point out that most judges and litigators discourage their friends and family from getting into litigation, which is true and it is remarkable for us to contemplate.

 

You also quote Learned Hand, who said that he dreads a lawsuit in his personal life for his family more than almost anything other than sickness and death.

 

Richard Susskind: I am glad you read that out rather than asking me if I could remember it, but yes, it is a wonderful quotation from as I recall 1926, but isn’t it remarkable that very few lawyers would encourage their family or their friends to use the court system to resolve their disputes. It’s a profound indication that the system is not fit for purpose.

 

(00:19:54)

 

Ralph Baxter: You are quite right Richard, there are realities in the way our legal system works that we all take for granted and we live with, those of us who do it every day, we live with, and then when you are confronted, as your quotations in the book do confront us with that reality, it gives us pause and it should. We can do better.

 

One of the things that is most striking to me about your discussion of online courts is these are not just devices or this would not be just a device, just a change to make things go faster or to make them more cost-effective. These are ideas that would make the system better. And when we get into the secondary part of access to justice and the idea of dispute containment, I think most people would regard that as a better system, still pursuing the objectives of the parties in a way that is fair and honest and all of that, but in a way that doesn’t necessarily escalate in the way that our current system does.

 

Richard Susskind: I think that’s vital, because many critics, perhaps not so much of online courts, but more of government investment in online courts say that it’s all about reducing costs, but that is really not my aim at all. I don’t want to increase costs, but for me it’s about widening access and reducing the anguish that people go through in trying to understand and enforce their entitlements.

 

Ralph Baxter: Right, and that’s absolutely clear in the book, it is so clear that that is so, that that’s your thought, your objective. But it’s also true more broadly about technology and the law and people have the same concern often when you raise the use of technology in almost any setting to advance the way we deliver legal service, that that means somehow reducing quality, reducing care, reducing concern for the interest of the parties, and it just isn’t so. If anything, if we use technology most intelligently and we combine it with process design, we will make things work better. So let’s take a break here for a word from our sponsors and we will be back.

 

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Ralph Baxter: Okay, we are back and we are here with Richard Susskind talking about his new book ‘Online Courts and the Future of Justice’. Before the break we were talking about some of the ways in which the changes could make our court system work even better in an online setting and I wanted to turn to something else you observed in the book.

 

You distinguished alternative ways we might incorporate technology. On the one hand, we might do it gradually, a little here and a little there to improve the way the courts work. On the other hand, we might do something that is transformational, going all the way to online courts, at least for some disputes in some settings and would you talk a little bit about why you advocate transformational change.

 

Richard Susskind: We have had several decades of grafting technology onto current systems and that’s given us essentially mess for less. The system itself is a bit messy and you take some of the cost out by using technology. The dilemma though that leads me to suggest transformation has another dimension and that is, I often say it’s hard to change the wheel in a moving car. The reality is you are running a court service, you can’t stop for a couple of years, introduce new systems and start up again. And we find this in the commercial private sector too. How do you bring about fundamental change and yet keep the business running?

 

And my answer metaphorically speaking is you have got to start a new car, an entirely new entity, and that attracts some business, some activity at a lower level in the early stages, but over time more and more work at it were is transferred from the old vehicle to the new vehicle.

 

And so I think to allow yourself not simply to graft technology on, but rather to build a system from the ground-up on the one hand and also to enable you to keep the existing system up and running, it makes sense to start afresh. And I think what you can anticipate is what I call incremental transformation, because you won’t have an overnight big bang change, but over time as I say, I think we will see more and more work gravitating towards this new model.

 

Ralph Baxter: Right, incremental in the sense that in a given jurisdiction the policymakers could identify some dimensions of the disputes that their system addresses and permits people to address and put those online with rules they design, for the objectives they are trying to achieve, see how it works and go from there, while leaving the other disputes to be resolved through the traditional system.

 

(00:25:06)

 

Richard Susskind: Couldn’t have put it better myself. I should be interviewing you.

 

Ralph Baxter: So I want to just drill down a little bit more on technology. One of the I think illuminating parts of the book is your discussion of how far technology has come in its capacity to contribute in the way that an online dispute resolution system would require. Can you talk a little bit about that, you distill four dimensions?

 

Richard Susskind: It’s interesting when you are living in a time of more rapid profound technological progress and change than humanity has ever witnessed, it doesn’t actually feel revolutionary, but be in no doubt, almost every day you hear of a new app system, technology breakthrough. So we are living in a time where I often say there is no finishing line.

 

But the four dimensions you refer to; one is this explosive exponential growth in the underpinning technologies, whether or not you are talking about processing power, the amount of data, hard disk capacity, memory bandwidth, the strides being made under each of these headings are mind-boggling.

 

And then there is the second factor I described where, and this is really a key feature of the book I wrote with my son Daniel on the Professions, where we see our machines are becoming increasingly capable, and that as human beings is something we have to come to terms with, cohabiting with increasingly capable systems, machines that can take on tasks increasingly at a higher level than human lawyers, for example, document review and litigation. Since 2011 we have known in terms of precision and recall that these systems can outperform junior lawyers and paralegals. And they are the worst they are ever going to be from now on, these systems are just going in one direction.

 

We are also finding these systems are increasingly pervasive and I don’t just mean the handhelds and the tablets that dominate our lives, but also the Internet of Things, the idea of chips embedded in everyday objects communicating with one another, chips already and will increasingly be embedded in human beings.

 

And finally, we as human beings are becoming increasingly connected with new ways of collaborating, cooperating and working with one another, from telepresence through to social media, the way in which we live, socialize and work is being transformed. And I say it seems entirely improbable and certainly undesirable that somehow the law and the court should be immune from these changes.

 

Ralph Baxter: So again, this set of observations is the kind of subject with which we are all familiar, but taking stock of it and what it means, and all the ways you just detailed, including specifically the increasing capability of the technology to do things that previously required humans and to do them better, I don’t think we can overstate this.

 

It isn’t always better and you have to code it right and get everything right, but it has the capacity to be better. Means that the technology now makes possible some ideas about how we might organize a system of justice that weren’t possible not very long ago, and as you say it’s only going to get better in the sense of its capability over time.

 

Richard Susskind: A simple and a complex example, online courts, the first generation, online judging and the extended courts simply would not have been possible before the early 90s when the World Wide Web was invented.

 

Looking at more advanced applications, the idea of systems that can predict the outcome of court behavior more accurately than lawyers and judges, that again would not have happened without advances we are seeing, recent advances in AI and machine learning. And so the technologies here are not simply, as I keep on saying, automated past practice, these technologies are allowing us to deliver services in entirely new ways.

 

Ralph Baxter: So time won’t permit us to get into all of the details of this book, but I encourage everyone who is listening to read the book. I think you will find extraordinary value on a lot of fronts, many of which are not at all about technology.

 

The discussion in this book of rule of law and what that means is truly illuminating. It was for me and I have thought about this since I was a first year law student long ago.

 

The discussion of what constitutes justice under the law is also powerful and the more each of us who is involved in legal service, either as clients and participants or as lawyers or others dispensing legal service or those who are educating lawyers or regulating lawyers thinks about these issues the better off we will be.

 

(00:30:02)

 

So Richard, let me close with this. You have written this book for anyone who wants to read it. Everyone in the world is touched by law, whether they know it or not. What can the people who are listening today and the readers of your book do in response to what you have written?

 

Richard Susskind: Very much depends where in the world they are located. I think in some areas of the world where the rule of law is sparse and courts are very rarely invoked and little to be trusted, I am suggesting we maybe think about a global initiative to have the more widespread introduction of online courts as a way of getting us from this 46% of people who have protection under the law to a far greater number.

 

But even in advanced jurisdictions, I think people have to be actively involved in bringing about changes. We are, and it’s a cliché of course, as lawyers and judges, we are a conservative bunch, but it does seem to me that we often are preoccupied with process, with the way we work rather than with outcomes, the service we deliver. And so what I am trying to encourage within advanced jurisdictions is an outcome focused approach to thinking about the future of courts.

 

We often say of neurosurgeons, that people don’t want neurosurgeons, they want health, I think it’s true of courts. People don’t want physical courtrooms and lawyers and judges and traditional process, there are a whole bundle of things they want, but they want an end of their dispute, and I think this is going to require a social movement to bring about the kind of change that’s necessary, and what’s at stake is so incredibly important that we increase access to justice for all.

 

Ralph Baxter: Well, thank you Richard. Thank you for joining us and spending this time talking about your new book.

 

To all of our listeners I want to say that I was truly moved by this book. Richard is synonymous with technology and the law and often we focus on the technology, the science of it, but it really at the end of the day is about the people of it, the people who are served by the system.

 

Early in the book I am going to quote here, Richard says, my case therefore is largely a moral case based on what I believe to be right and good, and then he says, all human beings should be accorded equal respect and dignity in context, meaning under the law. That’s what this book and these ideas really are about.

 

This program is about how the law works and how we can make it work better for everyone. And Richard, I can’t think of a better discussion we could have about how we can make it work better for everyone than the one we have just had. Thank you for joining us.

 

Richard Susskind: It has been my very great pleasure. Thank you Ralph.

 

Ralph Baxter: And thank all of you for listening. If you liked what you heard, please review this episode on Spotify or Apple or wherever you access your podcasts and until next time, this is Ralph Baxter for Law Technology Now.

 

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