The Spanish Flu to Covid-19: How this Pandemic is Pushing Courts to Modernize

Episode Notes

Transcript

Law Technology Now

The Spanish Flu to Covid-19: How this Pandemic is Pushing Courts to Modernize

08/05/2020

[Music]

Daniel Linna: Hello, this is Dan Linna. Welcome to Law Technology Now on the Legal Talk Network. My guest today is Supreme Court Chief Justice Bridget Mary McCormack. Justice McCormack joined the Michigan Supreme Court in January 2013 and became Chief Justice in January 2019.

Before her election to the Court in November 2012, she was a Law Professor and Associate Dean at the University of Michigan Law School. Justice McCormack, welcome to the show.

Justice Bridget Mary McCormack: Thanks for having me, Dan.

Daniel Linna: Well, before we get started, we want to thank our sponsors.

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So Justice McCormack, let’s just right in and can you tell me how are things on the Michigan Supreme Court now with the pandemic that we’re dealing with?

Justice Bridget Mary McCormack: Well, like everybody else, we are doing basically everything differently not just in the Supreme Court itself, but we have constitutional oversight of all the courts of the state. Michigan has 242 Trial Courts that hear about three million cases a year and so we have had to do an awful lot of work transforming what we do and how we do it. I say a lot that I had to become a technologist and an entrepreneur in the last four months, which has been pretty interesting.

Daniel Linna: How much of a delay was there before the Supreme Court could kind be up and functioning again and then same thing with the Trial Courts?

Justice Bridget Mary McCormack: Yeah, Michigan had a bit of a head start I think on many other states. In our administrative oversight role we had purchased Zoom licenses for all the Trial Judges almost a year ago, maybe a little more than a year ago, not because we were precedent and saw a pandemic coming, but rather because we saw some upsides to being able to do some hearings remotely. Michigan is a enormous State, it’s got a whole other big part of it across the bridge, and it seemed to us that figuring out how to do some things remotely would be a good way to serve the public.

So we had a bit of a head start there. The judges all had the hardware and the software to be able to do remote proceedings, but obviously we had to do a lot of training and support and some bench cards and all kinds of sort of services to make it — to support the judges who had never use those Zoom licenses quite yet.

In the Supreme Court itself it was actually somewhat easy. I think appellate courts in some ways have the easiest time with this transformation. I mean, we — we don’t have witnesses who come testify, we don’t take evidence, we literally sit and listen to arguments and ask questions and the remote platform frankly works just fine for that.

So we did cancel our April case call in the courtroom, but then we started hearing those cases by Zoom within a week after the canceled case calls. We didn’t really lose much time. We’ve been able to work remotely pretty easily.

The Trial Courts had a bigger lift, I mean they have lots of self-represented litigants. They do things like take evidence and hear testimony and it was a more complicated transition and they had to figure out how to make sure the public still had access, so we have them live streaming to YouTube, but there were — you know it’s a heavier lift for them, but I would say Michigan’s made a — the Michigan Trial courts have made a pretty incredible transition. It’s remarkable to me what amount of change has taken place in the last four months, it’s sort of more than in the last two decades I think, and it’s pretty, pretty remarkable to watch.

Daniel Linna: And so trials now are happening, and what do those look like and I’d like to find out I guess are there certain things that haven’t kind of comeback yet and you’re not sure when those might?

Justice Bridget Mary McCormack: Yeah, jury trials are the hardest nut to crack. The remote platform can work for jury trials. In fact, we did a pilot criminal jury trial, it was a pilot, it wasn’t a real case. We had a staff member at the Supreme Court playing a criminal defendant, but we had a real prosecutor, real defense lawyer, real judge, and we recruited respective jurors, staff members, families and law students, and we did it so we could figure out the tech piece of it all for the lawyers, litigants and judges who want to be able to use the platform for trials going forward.

But as I am sure you are well aware there are some big hurdles, at least in criminal cases in particular, there may well be some criminal defendants and there are lawyers who are willing and interested in proceeding on a remote platform, but there are constitutional guarantees which are going to make it not something we are going to require if that one unless they want to.

(00:04:59)

Civil cases on the other hand and summary jury trials, which is really an ADR process but looks like a trial can work on a platform and it might make sense for some cases to choose that.

So we wanted to make sure that we could give judges, lawyers, litigants the kind of information and support they would need if they want to proceed that way. But short of that, short of jury trials and maybe criminal jury trials in particular, the platform otherwise works for just about everything we do.

So it may well be that there are some complicated evidentiary hearings I could imagine, a Daubert hearing or with complicated scientific testimony being more complicated but not impossible.

So a whole lot of work is happening. I know judges who are basically current on their dockets, the only things that they haven’t been able to do are some of those jury trials.

Daniel Linna: Well, let’s dig into the due process kind of question there a little bit, because I know that there’s been — I mean let’s start with thinking about, with civil matters and there being concerns raised about due process and online courts and like just thinking about tenants facing evictions for example. What kind of safeguards our courts are you seeing courts put in place to ensure that those tenants have due process?

Justice Bridget Mary McCormack: Obviously, this is all a work in progress and I like to say one of the things — one of the changes that I think is the most beneficial and one of the brightest upsides is we’re having to try things and figure out if they work and then change them when they don’t work well, and so I don’t — I don’t know the answers yet to how all of this will turn out, but to those concerns we have seen not just in Michigan, but in other states that are doing remote proceedings in some of the civil cases where people are self-represented, we are seeing higher rates of participation. So folks who wouldn’t show up in a courthouse or courtroom when they are served with an eviction notice are showing up on Zoom, and as you well know showing up is sort of the first stage of due process, it’s hard to — it’s hard to get much process if you don’t participate.

So we’re having higher rates of participation and we can connect people with information and services in a remote context that it’s a lot harder to do in courthouses. I could actually see an increase in the kind of process we can offer folks.

One of the other potential upsides is lawyers who would have had a hard time committing a lot of pro bono time to say an eviction case, because they would have had to drive, park, go into the courthouse, it’s a lot of time away from their other practice, now can see their way to lots more participation, especially if they can just Zoom in for just to the court hearing which is the part where the litigants need the most, they might be able to show up for a number of those.

So yes, we have to be mindful of the ways in which the remote platform could be a disadvantage to litigants. We also have to be mindful of the ways it might be a great big advantage to the litigants.

Daniel Linna: Yeah, I love that thinking, because I think so often we are just looking at the disadvantages and not thinking about the status quo and going into a court right now and looking like what landlord-tenant cases look like and thinking well, wait a second, that we think is like the apex of due process.

Justice Bridget Mary McCormack: Exactly. It’s not like we are nailing it now, so you know what if this efficiency allows us an opportunity to do a whole lot better. That’s the way I am seeing it so far.

Daniel Linna: One of the things I know that people have concerns about is the digital divide and so if someone doesn’t have high speed internet access, I mean what kind of things are courts doing to kind of address situations like that where someone may not have reliable internet for example?

Justice Bridget Mary McCormack: Yeah, obviously, that’s one of the things we are all on the lookout for and figuring out both how to make sure we can increase access, so partnering with other institutions that are looking for increase access like schools. To the extent the schools are going to be able to get funding for access in parts of your jurisdiction that don’t currently have it, the courts should be partnering with the schools, no doubt, right. This is like a no-brainer.

But we also have to figure out access points for people who might not have smartphones. It’s not a lot of people, we know, we actually – have that data, but there is one group that doesn’t had a smartphone, doesn’t have computers and you want to make sure that they have access points, and traditionally we had kiosks in courthouses for our self-help resources, and you could easily have those kiosks include iPads, but it’s probably not good enough to have them in courthouses, I think you want to have them in libraries, which is one place we are expanding to in Michigan and then other places in the community. I mean, I serve on for the National Center of State Courts, I’m co-chairing the post-pandemic technology, something, something, something committee. I don’t lose track of the name, but in Texas I believe and Florida, they are finding that food trucks is a great place for iPads with portals, like places where people are going to be in the community anyway, places where it’s easy for them to get, are places where we need portals.

(00:10:09)

I had a conversation a couple of weeks ago with the Detroit YMCA Executive Director, and she said, YMCA is all throughout the State, having a portal for people to access courts and the YMCA might be, like a perfectly sensible place to do it.

Daniel Linna: Yeah, well, that’s all great to hear. I know that I’ve had Shannon Salter on the show and I’ve talked to her plenty of times with the Civil Resolution Tribunal in British Columbia and they spent a lot of time thinking about this a bit. They built a lot of other alternative ways to participate but they found that not a lot of people are needed to use those channels. Of course, they need to be there, the fallbacks need to be there, but there are other ways in which people figure out a way to get the access they need.

Justice Bridget Mary McCormack: Yeah, I think that’s right. And I think you have to make sure that they’re available. But yeah, sometimes people are going to prefer their neighbor’s computer or smartphone to going to the library, which is fine, as long as people can access it.

Daniel Linna: Yeah. Well, and then some of this goes to — I actually saw an article where you said something about the equalizing nature of the Zoom box is even had that it might make it easier to participate.

Justice Bridget Mary McCormack: You know, I love the efficiencies we predicted, but we were surprised by some and this is one of them, so we — and don’t have robust data yet, but we are asking self-represented litigants about their experience and they overwhelmingly, and not only self-represented but all litigants, we are asking litigants and lawyers.

The litigants really like the Zoom platform and I think it has something to do with the equalizing nature of every Zoom box being the same side, like it empowers them to feel like they can speak their mind in a way because they’re the same size as the judge and the lawyers, and the lawyers on the other hand are far more resistant, they’re like I don’t like, that I can’t like muzzle my client when I need to muzzle, reach over my handovers out.

So it’s something interesting, but another category of litigant who has come alive on the Zoom platform are kids. I don’t know if you’ve heard this, but we hear over and over again from judges who are presiding over cases where there are kids who are witnesses or who are litigants and they are far more comfortable talking on an online platform. I guess that should have been predictable, but I’m basically a middle-aged, so  what do I know, but kids, courtrooms are intimidating, right, they are intimidating for everybody, they are even intimidating for lawyers and that sure is intimidating there.

Daniel Linna: Sure, right yeah.

Justice Bridget Mary McCormack: Yeah, so kid on the other hand, talking to her phone is like what she is used to doing, and so we have had judges say like these kids who have never said a word in the courtroom come alive on their phone. They want to show the judge their room, they want to tell the judge about their homework. They, some of these like unexpected upsides are pretty exciting to follow.

Daniel Linna: Well, so I want to talk a little bit about a piece that you wrote that was published on June 22 for The Hill and it began with this assessment of our justice system. The COVID-19 pandemic has laid bare the lack of technology and the archaic rules and processes embedded in our justice system.

As we think about a post pandemic world, even when we’re still in the thick of this crisis, every Federal Office, State Capitol, courthouse and mayor’s office should be asking, why is our system of justice held together with the threads of 20th century technology and 19th century processes. Not that it was really powerful. Can you talk a little bit about I mean, when you talk about technology from the 1900s and processes from the 1800s, I mean what do you thinking about are these obstacles that we need to overcome and move past?

Justice Bridget Mary McCormack: Yeah, I mean it might be easier to start with what are not the obstacles, but it’s just about everything we do in courtrooms today looks like it did during the Spanish Flu pandemic. It’s unbelievable, right, like what other industry basically looks exactly like it did a century ago and ours does.

So both the processes like that that everything is adversarial when a large portion of cases that are processed in courts don’t have a lawyer on one side of them, so that process makes very little sense that people have to wait to hear from the court about scheduling and they can’t get any reminders about payments or dates, but they can’t figure out when they can go to court and not miss work.

All of these things that any other industry has figured out how to serve the people it serves in ways to make it convenient, we just have been able to resist it. I always say there are — I think there are lots of reasons for that, some of them are cultural, some of them are historical, some of them are legal, you know right our business is one that adheres to what we did in the past. That kind of is our guiding principle in law, but as a result we really have missed out on a lot of updating that will provide better service to the public.

Daniel Linna: Well, one of the things I worry about is that, so there’s a lot of talk about that we’ve had all this change, it’s like in two weeks we have ten years of changes and things like that, but I mean you have pointed out as we think about a post-pandemic world, are there enough people doing thinking about that?

(00:15:01)

Like are we really spending the time to imagine what could justice look like in 10 years, 20 years 50 years or we just kind of — I mean, I think even all the way up to now, I feel like we’re constantly mired in the — like what we do today and maybe just a little bit faster and cheaper and bolt some technology on, but who’s like re-imagining what these things could look like in the future.

Justice Bridget Mary McCormack: I agree with you. I mean, one of my — I have said this in so many different context, I always wanted to write a law review article called let’s do emergencies last. I have the title, I never got around writing it, but, but someday, because we are always figuring out and so this particular emergency has allowed us to do like to make some big steps forward that would have taken a lot longer, but it can’t be that we were just figuring out the technological equivalent of what we were doing in the courtroom.

We have an opportunity right now to start over from the ground up, and I do think there are some people thinking about it and talking about it. The National Center does have some talented people thinking and working on it, but we hope we have the buy-in and the will from the bench in the bar as we move through this pandemic. I think this pandemic will eventually be behind us, at least I hope. It would be terrible to just go back to where we were.

Daniel Linna: What do you think it takes to get buy-in from the bench in the bar? I mean, I think it seems like we’re making some progress, but I mean, what are the obstacles, what do we need to be doing more of to get more people on board with these ideas?

Justice Bridget Mary McCormack: Yeah. I mean, I think it’s an all hands on deck like moment for our profession. I mean, I think the law schools, the bar associations, the judicial associations all have to be all in on we have an opportunity that we wouldn’t have otherwise probably had, maybe not in my professional lifetime, I mean maybe we would have, it’s the damn windows of the world pushed us enough, but, but we do now and it really is going to take coordination and cooperation to push it forward.

I do think though, now that people have seen the benefits of just a taste of what we can do differently, that will help. I mean people are not going to, lawyers and litigants are not going to go back to wanting to drive to Detroit, find expensive parking, wait in line for a very long time to get into a courtroom, to wait in line for a very long time. I think that we have created some demand now that people understand what’s possible that is giving me some reason to be optimistic, although I will confess to being an optimist most of the time anyway.

Daniel Linna: Well, I think something you said earlier too, it’s so important about collecting data, surveying people, figuring out how to make this a quantitative measure, measuring the quality of different things and so often I think as lawyers we rely on rhetoric and these well, no way online could be better than in-person. Well, wait a second, let’s break this down and measure what do we care about, what are we trying to get and what are we getting when we do these things?

Justice Bridget Mary McCormack: Yeah, there is no doubt data is lacking in many Judicial Systems. It’s oftentimes a reason why we just throw up our arms and say oh, well, we can’t figure anything out because we don’t have the data. Well, all right, let’s start making sure we have the data, right, that could be like the first principle of what comes next, right, collecting data so we can measure what we’re doing, if it’s not as good we will know that.

Daniel Linna: Yeah.

Justice Bridget Mary McCormack: That’s one of the upsides of having data.

Daniel Linna: Right, right, right. Well, I want to talk a little bit more about criminal justice, the Online Dispute Resolution Program that you put in place, but before we continue our interview with Michigan Supreme Court Chief Justice Bridget Mary McCormack, we are going to take a quick break to hear a message from our sponsor.

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Daniel Linna: And we’re back. Thank you for joining us. We are with Michigan Supreme Court Chief Justice Bridget Mary McCormack. And so, Justice McCormack, we’ve been talking about increasing access to justice. We’ve spent a lot of time talking about Civil Justice in courts.

I think one of the things that caught my attention about your article in The Hill is that you were talking about criminal justice and a lot of times we talk innovation and technology, my observation has been that we haven’t tended to talk much about the way we can innovate and use technology and improve criminal justice systems.

(00:20:08)

But, I mean you have talked about this in your article saying we have a chance to rebuild the system from the ground up, let’s create a 21st century criminal justice system that is effective, transparent, efficient and fair. I mean where do you think the opportunities are that we could be thinking about using technology and improved processes specifically in criminal law?

Justice Bridget Mary McCormack: I think we’re all limited by our imagination that the criminal justice system is just as hot in the last century as the civil justice system is and there are tremendous opportunities for improving effectiveness and transparency and efficiency.

So for example, a lot of criminal adjudication is misdemeanor and traffic offenses. In fact, many jurisdictions including Michigan have seen their County Jail populations triple in the last few decades, even though crime is at a 50 year low. Not state prison, now I’m not talking about state prison, I am talking about county jails. And what’s driving those County Jail populations are misdemeanors and traffic offenses.

And if all of a sudden we could move to online hearings, online payments, online reminders about payments and hearings, just like your dentist sends you a text reminder, it turns out we now know that the single thing most likely to predict whether someone comes back to court is not whether they have a job or whether they have ties to the community, it’s whether they get a text reminder, it’s that simple. That’s not complicated technology. I mean the Michigan Supreme Court’s own information technology group built that technology to give to our district courts and they all want it.

Being able to dial into hearing so you don’t have to take a day from work. I was on the phone just recently with a Judge in Grand Rapids, Michigan who just finished taking a misdemeanor plea from a criminal defendant who is at his job in Ohio in the break room on his iPhone, took responsibility for the charge, was delighted to be sentenced and was incredibly grateful that he didn’t have to take a day off from his job, which he didn’t have and drive from Ohio to Kent County Michigan, move on with his life.

There are lots of ways to ensure accountability in a modern system, right, that’s what the criminal justice process is about. In fact, we probably could do a lot more of it by giving people the tools to be able to take responsibility remotely without having to find childcare, took days off from work, find parking, find transportation in some cases.

There is no reason why we can’t bring the system to people where they are. Of course, not for every case, right, if somebody’s is in custody or it’s a very serious case, those cases are probably going to proceed in courtrooms eventually, but frankly if we take care of some of the traffic and misdemeanor cases in these alternative platforms, you need room and time for the court and the court staff to handle the serious cases in the courtroom, right. It also allows us to sort of make smart decisions about how we’re going to use our court time, which is good for everybody.

Daniel Linna: Yeah, and I agree there, I think there’s so many opportunities to think about how to use improve processes and technology. I think it’s so important to think about the processes and redesign, reengineering as well.

A topic that’s related to this is there’s a lot of concern as there should be — we should be thinking about when we change processes, when we use technology that bias could creep in or maybe even we could, it might exacerbate existing bias or discrimination in systems. I mean what kind of things, you mentioned your article, I think you mentioned some of the things that we got to think about effective, we got to be measuring effectiveness when we put these changes in place, we need transparency, efficiency, fairness thinking about that.

How do you kind of square that just to make sure that, that we are thinking about that as we continue to use technology, the ways in which, just to ensure I guess that we’re addressing that, that we don’t in some way introduce even to exacerbate different biases in the current system?

Justice Bridget Mary McCormack: I mean, I know there are people who know a lot more about this than I do, but obviously you can bake implicit biases into all kinds of processes, right, not only technological processes, you can also bake implicit biases into all of the other processes that govern what we do in courts, like court rules and norms and traditions and just like you were saying before, measured against what, I mean do you think right now we have no implicit biases built into what we do in courtrooms, I don’t think so. I think we do.

And so yeah, let’s make sure that as we build a justice system for the next century we are mindful of the ways in which you can bake biases right into technology and be open sourced and transparent, and again, collect the data to be able to figure out whether you have a problem there, right, let’s not be afraid of collecting data and finding out where we went wrong and fixing it. We can do that.

(00:25:04)

Daniel Linna: Yeah, and well and that’s — that’s among the many areas where there’s been some really interesting work happening is more and more research looking at different courts, administrative agencies, looking at decision making and getting a little bit more light shed on kind of how decisions are made and what factors, what variables might have an impact.

I mean to that point we’ve got — it’s really amazing how little transparency and access we have to court data in this country and we know about the problems with PACER and the expense of getting it, but then even for many state courts, you’ve got those same sort of barriers or it might not even really be available in many states at all. I mean, how do we get more attention paid to that and provide more access to data for researchers, but also for entrepreneurs who may want to develop tools that could be helpful in court systems?

Justice Bridget Mary McCormack: It’s a huge issue and it’s one that is even more complicated in States like Michigan where we don’t have a unified court system. So, you know states that have a unified court system have a slightly easier time building a system with open access to court information and data.

In Michigan with our non-unified court system we are a year and a half into the process of building a statewide e-filing system and with so many different courts, with so many different funding units and therefore different case management systems building one unified sort of technological spine to connect all of those systems is a huge lift. It’s just an enormous lift.

But it feels to me like even if it takes longer to do it in a way that will allow open and remote access to data we have to do that, like without the ability for not just researchers or entrepreneurs, but the public, to be able to access court data remotely for free, I will think of it as a failure.

I have a talented team of information technologists working on this project and we had this conversation, we could probably do it faster if we didn’t have to do that part, and I said no, no way man. We got it, without that we will really limit the kinds of things we can do better in the next couple of decades. So it’s a critical piece of the puzzle. And you need people leading your court systems with an eye towards it honestly, you really do.

Daniel Linna: How might we get more coordination across jurisdictions on some of these questions? I mean, I guess, I don’t really know all the places where judges might get together and talk about these kind of things. I’d like to get more academics involved in some of these questions. We are doing a project here at Northwestern, we got people in computer science and law and across the campus looking at PACER data and not just extracting it, but figure out ways to build platforms to make it easier for lay people to understand what’s going on in the courts, but I mean, like, where do you go when you want to talk with this, with your colleagues and other states and how might we bring together have more convening so we can share best practices and help move this forward?

Justice Bridget Mary McCormack: Yeah. I mean the National Center for State Courts is probably the most important organization working on that, and they’ve been working on it a lot. The Conference of Chief Justices works in conjunction with the National Center and the Conference of Court Administrators, we actually have our meetings next week and I’ll be presenting on a lot of these topics to chief justices around the country next week and in our technology working groups we have academics, you should be there, I should probably put you on there, Dan, but we do have J.J. Prescott from Michigan and –

Daniel Linna: Oh yeah.

Justice Bridget Mary McCormack: And Margaret Hagan from Stanford, so because I do think it’s important that we have not just the chiefs and the Court Administrators but the academics, so we are thinking about this all in the same room. Like I said it has to be all hands on deck kind of moment for us.

Daniel Linna: So we have been talking about a lot about technology and data, but I know that you also wrote another recent article, I know why you’re so busy now, I see all this writing you’ve been doing and speaking, but so, you, in this article with David Angstrom, he’s a Stanford Law School Professor, you talk not only about technology but rethinking who can provide legal services and new technologies.

I know that the something that got press recently was Washington had this limited license legal technician, you know, sort of designation that you had individuals who could get one year of legal training and then provide certain legal services. I think Utah has that now and California is looking at it, but then Washington got rid of that. I mean what were you thinking about when you wrote this, I mean that’s even just a narrow piece of this, but who should we be thinking, who are the people we should be thinking about, who other individuals, other than just full JD lawyers who provide legal services and people can develop technologies.

Justice Bridget Mary McCormack: Yeah, I mean, so we’re just not enough, right. Lawyers are not enough. In Michigan eight out of 10 people with civil legal needs can’t afford lawyers. So I don’t see why it should be that complicated that we have to think about who else might be able to provide some kinds of legal services and we have a lot of smart lawyers and law professors and judges who I think if we put our minds to it could figure out some answers to those questions.

(00:30:08)

There are like you said Utah is experimenting with some of this. I don’t know the back story on why Washington State walked its rule back, but it feels to me like again in this moment where we have this opportunity to rethink what we do from the ground up, we should really come to term should the fact that we were not nailing access to justice before the pandemic hit. We just learned, right. So, and we are not going to – we are not going to have lawyers to cover all those cases.

But don’t we want people to have information and assistance so that when they do go to our courts, they feel heard, they feel like they got a fair outcome, right. I mean it’s sort of, in my view this is like a public confidence in government is increased if we can figure out how to make sure people have some help.

I always tell my — like friends in the other branches, more people interact every single day with the courts in your branches all year so you really have us to thank for growing trust in government when we can do that, right. So I really think this is about public confidence in what the courts do and thinking about who can provide legal services is our obligation given the access to justice probably have.

Daniel Linna: Yeah, all I mean, we have all this talk in our profession about how important the rule of law is, but you had so many people are totally disconnected from our courts and what law.

Justice Bridget Mary McCormack: Exactly.

Daniel Linna: Well, I think a related project that you have going on in Michigan is that My Resolve is that the way you’re pronouncing it, MI-Resolve, this is the online dispute resolution platform. Can you tell us a little bit about it?

Justice Bridget Mary McCormack: Yeah, I’m calling it My Resolve, but it’s MI-Resolve, and it is an online dispute resolution platform that is now available everywhere in the state. We actually launched it last spring in 17 counties. We partner with the Community Dispute Resolution Centers so that people who use the platform can use a mediator if they want. They don’t have to if they don’t want. They can use it for a case that’s already in court or one they’re thinking of filing. It is completely free. It’s asynchronous so you can log onto your smartphone at the moment it’s convenient for you to do that and see where the negotiation or mediation is going.

And if you come to a resolution that’s satisfying to you, the platform takes that resolution and turns it into a court forum and files it with the court for you. So you can resolve your dispute completely remotely. You never have to go to court and you never have to pay a dollar. When the pandemic hit our goals for getting the program into all 83 of Michigan’s counties set up a bit, and instead of taking most of this year my team and our vendor partner worked really feverishly take to get the platform up and running throughout the state and it now is running statewide. I think we are the first state in the country to offer statewide online dispute resolution.

Daniel Linna: That’s great, and I mentioned the Civil Resolution Tribunal in British Columbia. I think one of the things that — they had some early success, they are piloting it and now they have exclusive jurisdiction over a wide range of different types of claims including I think it’s automobile injuries up to it, maybe $50,000.00. But I mean, when do you foresee MI-Resolve having exclusive jurisdiction over certain disputes?

Justice Bridget Mary McCormack: Right now, it’s optional and you can in fact use the platform and if you aren’t satisfied with where your negotiation or mediation goes, you can still go to court. So it’s fully discretionary at this point, but I could imagine for certain categories of cases, it making a whole lot of sense for that to be the place where those are resolved. That’s going to be question that will require some buy-in from lots of stakeholders of course, but I do think that running the platform for now and gathering the data from people who use it, will help us with that conversation.

Like we said, like when I was talking about the ways in which we could move a lot of criminal adjudication online, if we used an online dispute resolution platform as the place where certain categories of cases all originated, it would again allow us to save our court time and court staff time and judge time and lawyer time for the cases that really need all of that. So it’s just another way to be smart about using the resources we have.

Daniel Linna: That all sounds great. So we’re coming to the close of the program here, but I did want to ask you a couple of questions about law schools and lawyers who are preparing for the future, their career. You spent over a decade as a law professor at the University of Michigan, you founded the Innocence Project there. I mean, how do you think legal education needs to change to help accelerate innovation and technology adoption in practice and in legal institutions?

Justice Bridget Mary McCormack: Yeah, I mean, I love law schools. I taught at the University of Michigan for a long time. I still do. I also taught at Yale Law School for two years. I had a great experience at my Yale Law School, I sort of feel like, I am a — part of my DNA is very tied to law school academia, but they’re a lot like courts, they look a lot like they did a hundred years ago, right.

(00:35:11)

I mean the first-year curriculum basically looks like it did forever ago and when law schools have programs in entrepreneurship or design thinking or technology, it’s usually like an add-on rate. It’s like over there in the other building on the side. I think this is a moment where law schools like the rest of the practice probably should be thinking about redesigning from the ground up.

So why not teach all of our law students the ways technology can serve all the core competencies, right. And every other, in every other industry people don’t get to like get the way technology affects the core competencies, why should they in law school? So I don’t know. I think the law school that I love, the law schools that I love and all the rest of them are going to have to rethink how they train students.

Daniel Linna: Are there any specific skills that you think that is becoming may be more apparent now that that law students or junior lawyers need to know these things for the longer arc of their career?

Justice Bridget Mary McCormack: I mean, you know, you probably would know better than I do, but I don’t — if I were going to law school this fall, I’d want to learn a lot more about data sets, I would want to learn a lot more about AI and I would want to understand coding at least at a sort of a level that made me fluent in talking to the technologist. I don’t think law school should become engineering school, but I would want to be able to have a conversation with an engineer and have it be one that I understood. So I would — I think I would want to learn some skills that I did not learn in law school.

Daniel Linna: Well, one last thing I want to ask you about then is that, so there’s been a little bit of — well, there’s been a growing concern about how states are handling licensing for our recent graduates. I’m hearing this from a lot of my students here at Northwestern who are taking the bar or were scheduled to take the bar in a lot of different states. Some states have gone with diploma privilege. Can you just tell us what’s happening in Michigan and maybe I’d love to hear your thoughts on kind of what you see happening around the country and maybe the kind of new thinking we need in this space, to think about how we license our lawyers?

Justice Bridget Mary McCormack: Michigan actually is one of very few states that’s not yet a UBE state, a Unified Bar Exam state, which in my view put us just my view, I am not speaking for my colleagues, put us at a disadvantage and put our law grads and new lawyers at a disadvantage. We were moving towards UBE. It actually turned out to be of tremendous opportunity right now because it allowed us to make a decision about how to administer this summer exam safely before the NCBE was able to figure out what they were going to do.

So we moved to a one-day online only test, a number of months ago, which I think was a relief to the to the Michigan law grads who were planning to take the Michigan Bar and it turns out now to look even smarter than we probably knew in May, because it does feel like a pretty complicated time to try and administer an in-person bar exam.

So I have a lot of concern for the law grads who are facing that and it is probably long past time that we rethink how we license and regulate lawyers. It’s a — I think in, just like in the courts, this pandemic has revealed some of the shortcomings of that process and it’s one of those that you always do it a certain way, so you keep doing it a certain way and you don’t stop and think like that, is this really the best way for us to make sure that people are — the pubic is protected and if not, what updates might make sense, and I guess I am sort of optimistic again. Here I go that maybe this has given us an opportunity that we think about what is it we’re looking to do in that process. And is this really the best way or are there other ways to think about it. So I think there’s some reckoning, reckoning to come.

Daniel Linna: Yeah. Well, you know, I think one of the questions then has cut, that’s come up around this is even further in the states where there’s been a movement online, there is worry that, and I’ve heard people say we’re not really working from home, we are sheltering in place and like trying to do what we can from home.

Justice Bridget Mary McCormack: Yeah.

Daniel Linna: And of course, I think there’s some concern that that this may have a disproportionate effect on students who are trying to take a bar exam and that’s been I think the growing push for Diploma Privilege. I don’t know if there’s been much discussion in Michigan about that.

Justice Bridget Mary McCormack: Yeah, you know, we have not had much in Michigan. I think just — I think we’re — the format and the one-day Michigan only questions I think people felt like, it was a pretty good option. So it hasn’t been an ongoing discussion, but I definitely open for business for rethinking how we license and regulate lawyers.

(00:40:04)

Daniel Linna: Well, that’s a great segue. I mean, I have loved having you as a guest and I’d love to for you to share with folks. I think they can get in contact with you and I know one place is on Twitter, where you have a robust discussion with the public.

Justice Bridget Mary McCormack: Yeah. Follow me on Twitter. I’m @BridgetMaryMc, and I am actively involved in conversations there and that’s probably the best way to follow my work and find the rest of me.

Daniel Linna: And there’s a growing number of other judges. I think I’ve seen over the last couple of years were getting engaged in conversation on Twitter, and I think it’s really great. I mean for those who are interested in directly what the courts are doing, but then also just for the public generally just like you talked about in Zoom that it can be kind of leveling the playing field, but like see elected officials and judges on Twitter interacting with the public is a really great service for us all.

Justice Bridget Mary McCormack: I completely agree. I’m a big believer in judges engaging with the people we serve and so it’s hard to do that in person when you serve a whole big state. So this is a way for me to keep the public informed about what we’re up to and what we’re doing. It’s the Public’s Court after all.

Daniel Linna: Well, thank you very much for joining us today, Justice McCormack.

Justice Bridget Mary McCormack: Thanks for having me. It’s so fun.

Daniel Linna: This has been another edition of Law Technology Now on the Legal Talk Network. Please take a minute to subscribe and rate us in Apple Podcasts and Google Podcasts. You can find me on Twitter @DanLinna.

Please follow me, re-tweet links this episode and join the legal innovation and technology discussion online. And join us next time for another edition of Law Technology Now. I’m Dan Linna, signing off.

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