Tuesday, 24 March 2015

Richard Susskind Lecture: The Future of Litigation and Dispute Resolution

Richard Susskind has been making predictions about the legal profession for some years now. However when you’re closely involved with the practice of law on a day to day basis, as many of us are, it is hard to see the dramatic changes that have taken place. This is especially true if you’re in one of the middling sort of law firms. The firms in the extreme size brackets have probably seen the most change; high street firms with funding issues and larger firms with the push for outsourcing, diversification and international growth. All of this has been well covered in the legal press so Susskind has turned his thoughts to the future of litigation, specifically.


He made no mention of the hefty court fee increase which has recently caused shock waves to ripple through firms' dispute resolution departments. I believe that this will have more of an impact on the way justice is accessed – or not – in the future. Unless the Law Society is successful in its judicial review, fee increases of up to 600% will prevent many people from bringing claims. However I wonder if the increase of fees is directly related to Susskind’s ‘clean slate’. By making the current legal system even more expensive and unworkable, the government can then institute its brave new world of eBay justice. Controversial...

Let me return to the beginning of his talk which he gave at the British Legal Technology Forum on 17 March 2015. He started by saying that the fragmenting or decomposition of the legal world started more than a decade ago. Many processes carried out by law firms, such as  document review, discovery, research, litigation support, disclosure, strategy, tactics, negotiation, and advocacy, can now be done by anyone. Lawyers’ input can be limited to the purely technical legal parts, whilst the routine tasks can be automated and outsourced to non-lawyers. He stressed that firms should be looking to multisourcing - the provisioning and blending of business and IT services – to increase the range of options to clients.

Next up was intelligent searching. He cited ‘Technology assisted review in e-discovery can be more effective and more efficient than exhaustive manual review’ which obviously makes his position quite clear. Why would you employ a legal associate to review emails, documents when the job can be done cheaply and efficiently by computers? He believes that by 2020 such technology will be mainstream in law firms.

Big data also has legal application. A company called Lex Machina mines US intellectual property litigation data ‘revealing insights never before available about judges, lawyers, parties, and patents, culled from millions of pages of IP litigation information’. By analysing this information they claim to predict the behaviour and potential outcome of the US Supreme Court. The system knows nothing about the law, but they say that it out performs humans in predicting outcomes. If it is so accurate, what is to prevent the implementation of a legal system based purely on statistical analysis, with the lightest of human touches to moderate?

In my view telepresence should be mandatory in all businesses, schools, universities, government, when distance makes face to face contact impossible. There is no reason why people should travel miles to take part in meetings, lectures or any other event where input is required. technology is making it possible to get a real sense of being in same room, as he said, telepresence is 'Skype on steroids'. Why should it not be used in courtrooms or other legal facilities? 

The CJC’s Advisory Group on ODR published its report in February 2015. Here you can find the report itself, as well as some background information on its genesis. Additionally, there are links to interviews with experts in the field of ODR, discussing its history, current application and future in helping people resolve their problems in civil law. The procedural rules governing the Court system runs to over 2000 pages, so Susskind suggests a change is needed.

By change he doesn't mean more tweaking around the edges but a wholesale starting from scratch. Court system automation isn't helpful because it's grafting expensive technology on to traditional methods of resolving disputes. So we need to innovate to make it affordable and accessible, something along the lines of Amazon dispute resolution. An online system is natural for generations of Internet users, would take away many ill-suited cases from courts, as well as offering access to meet a currently unmet legal need.

He stated that law firms currently have an incentive to escalate cases so they end up in the court system. But what consumers really need is dispute containment and dispute avoidance. If people could be brought together online using facilitators, this would diverting cases away from expensive judges. He cited existing services such as Resolver, Ebay, Online appeals for parking, Money claim online and says that as the technology improves this will become the normal way to resolve disputes.

He predicts that new technology will cause firms to fail, so they seriously need to rethink their business now and be prepared for the impact of IT. ODR will replace much court work within a decade. He summed up pithily : 'to predict the future you have to invent it'. And for the middling sort of law firms, it is crucial we start inventing as soon as possible; any later and it will be too late.

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