The current status of the (virtual) courts

Originally published on the Legal Executive Institute

By Joseph Raczynski

Likely the single most salient after-effect of the current pandemic on the legal landscape is its impact on the courts. Previously, the variance of their technological proficiency ranged from fundamentally unchanged over the last 100 years, to jurisdictions that embraced a technological bent forward over the last decade.

Indeed, because of the pandemic, the speed of change has been unparalleled, pushing courts from hopeful murmurs of being virtual in a decade’s time, to courts functioning virtually within two weeks.

The state of the courts

Recently I listened to a pair of judges on a recent ILTA webinar who embodied the technological divide seen in courts around the United States. In Maryland, Judge Paul W. Grimm, District Judge for the U.S. District Court for the District of Maryland, said the traditional rules of criminal procedure inhibited hearings. In the Court’s code, “the rules state that the defendant has a right to be in court, a right to be present.”

The Court’s interpretation, the defendant must be in court, physically. It took the Coronavirus Aid, Relief, and Economic Security Act (CARES) to give permission for the courts to adjust to less draconian dogma. On the civil side, it appears Maryland is slightly more progressive. If the individual defendant elects “to decline” to be present in the courtroom, the case then can proceed virtually. In Maryland, the rules are more restrictive for criminal cases than in other states.

In the state of Texas, conversely, courts were able to perform nearly all proceedings virtually. Judge Emily Miskel from the 470th District Court in Collin County, noted on the webinar that she has a very tech-forward Office of Court Administration. That office tested multiple remote hearing platforms, settling on Zoom for the entire state of Texas. Initially the state courts assumed utilization would center on emergencies, but it worked so satisfactorily, that they scaled to nearly all cases. Boosting the ability to conduct these hearings was their forward-leaning court management infrastructure. “Statewide electronic filings are all done online” and have been for years, Judge Miskel said.

Building on their demonstrated progressiveness, Texas conducted five pilot remote jury trials. Mary C. McQueen, President of the National Center for State Courts, recently noted that Judge Miskel had a court date with history on May 18, when she and Judge Keith Dean presided over the nation’s first-ever remote jury trial. Jurors connected via cell phones, computer tablets, and laptops. They appeared from their home offices, living rooms, and backyards. Judge

Technology & the new benefits

Overall, the country’s courts are on a wild disparity spectrum in their use of technology. In recent times I learned of one court that only takes bankruptcy filings via FAX, not email, website, mail, or in person. So, what is the road ahead for courts embracing technology?

Platforms

Secure court management platforms that allow courts to go digital with filings, decisions, case management, docketing, calendaring, and video capabilities are essential. Each one of these components are modular in nature, but strung together can create workflows for the court and all parties involved.

The digitization of data, enabling alerts, filings, and all other facets will create a foundation for the courts to function more seamlessly. There are many roles that adapted years ago tangentially or directly connected to the courts, like research, discovery, and depositions; but the biggest hurdle for most have been virtual video courtrooms that are enabled by and connected to a court management platform.

Video

Despite some early security stumbles, Zoom has proven to be the venue of choice of the courts for video meetings, which may be one of the most critical parts to the process. Microsoft Teams appears to be second choice for video interactions.

The State Bar of Texas polled all of their attorneys and asked for impressions of Zoom. According to Judge Miskel, 76% of the attorneys had used Zoom for legal work; 94% had no issues with their client using it; 93% found it to be positive or neutral for their hearings; 85% would recommend using it; and 73% felt it was effective in relation to the courts.

Some of the features that resonate for the judges and attorneys using Zoom are the breakout rooms, which allow for potential juror deliberation in a sealed room. For criminal cases, several judges require defendants be in rooms with cameras that pan and zoom to assure no coaching occurs. The ability to rename those appearing before the judge — their display names on Zoom — is a big feature. Additionally, there is language interpretation functionality, which can better serve more remote locations.

Access to Justice

These technologies have proven to offer greater access to justice, judges say. The courts have found that people with hourly jobs or non-flexible schedules, could join remotely more easily from their job. One judge mentioned recently that during a virtual child custody hearing, the mother joined from an empty church, which was adjacent to her retail store. The demands of her job would not have permitted her to be physically present in court.

Judges also found that defendants and plaintiffs are far more likely to engage because the familiarity of using video on their phones. It was less intimating than being physically present in court.

Speed of delivery

Another judge recently mentioned that the speed of delivery is now fantastically faster. Judges can make decisions rapidly without the need for as many hearings or elongated in-person processes.

Decentralized justice: Online dispute resolution

Online dispute resolution (ODR) is another path forward into the future of technology that impacts the courts. The next phase is starkly innovative. Legal tech company Kleros stated that in recent years, new approaches to dispute resolution have emerged, with contributions coming from such areas as blockchain, cryptography, ODR, game theory, and mechanism design. Fundamentally these opt-in systems seek to “leverage the willingness of peers to adjudicate disputes or, more generally, assess situations that require an impartial and fair outcome,” Kleros reported.

What is profoundly different is the idea of decentralized justice, the move toward decisions emanating from a network of randomly selected, lay peers.

The recent and fundamental changes to the courts is astonishing. What once was a dream for some and unfathomable to others, has been thrust into the light. Today, the United States has functioning virtual courts, hearing real cases. Though much of the infrastructure is tapped and patched together, it serves as a baseline for growth.

The eventual goal is a court management system, integrating secure ease of access, providing a platform for fair justice, and allowing coordination of cases for the masses — all virtually.

Part 3: Legal Geek’s Uncertain Decade: How does the US and the UK match-up in legal?

Originally published on the Legal Executive Institute

By Joseph Raczynski

In the next decade legal knowledge will be a skill, not a practice. The assumption is that knowledge is table stakes, and technology is now the enabler buoyed by flourishing legal tech startups.

These industrious neophytes are marshaling services previously owned by the practice of law stewards, dramatically changing the legal landscape. Another avant-garde concept — that the current legal educational system is misfiring, proving to be generally antiquated and looking for relevance in to 2020s — is also ascendant.

These sentiments and a rousing discussion of how the legal profession operates around the world were debated on a recent global webinar. In the third of a four-part global webinar series, The Uncertain DecadeLegal Geek again brought Mark Cohen, CEO of Legal Mosaic, and Prof. Richard Susskind to hash out what necessary skills and education for legal professionals will be in the 2020s. They also provided some fireworks with insights into how the legal landscape differs between the United States and United Kingdom — all as the Fourth of July approaches. (You can read about the first webinar and the second webinar here.)

Legal skills & education

The practice of law has begun to shrink, said Cohen. Focusing on both the skills and education necessary to flourish in the 2020s, he mentioned that a fundamental shift to machines is underway, along with the increase use of pseudo-legal professions. These professions do not require law degrees, but can allow professionals to perform many components of the traditional lawyer. In fact, the UK has empowered this movement by creating a formalized rulebook that outlines six types of work for legal professionals; thus, opening the door to other work outside of the six that can be done by non-legal professionals.

Deloitte observed this change, stating that 40% of all legal tasks will be automated by 2030, said Cohen. “This is not the end of lawyers, rather a call to re-tune their skills by learning more about business, technology, emotional intelligence, and collaboration all in an effort to reimagine themselves focused on the customer,” he added.

Susskind agreed that machines are going to become increasing capable, leading to a future of automation, rather than human task. He outlined two divergent paths: one where humans compete against those computers; and another where humans help design those systems. He favored the latter, but understands many will align and fight for the former.

Cohen generally agreed. but with a caveat. The law is “a noble profession,” Cohen observed, adding that it has many paths, but if people expect the same passage as other generations, “it’s not going to happen.”

Law schools at a crossroads

Law schools are detached from the legal marketplace and therefore will not be the only group educating the legal industry going forward, Cohen claimed, adding that education is more a process than a place, and upskilling will be omnipresent for all parties. As lines blur among industries including data analytics, computer science, and lawyering, legal professionals must understand culture and the diversity of the legal ecosystem, by becoming more aware, embracing, and utilizing new cross-industry models. If not, lawyers will be marginalized.

This is the age of the customer, Cohen noted, and so, legal needs to be better aligned with them.

legal geek

Susskind agreed, saying that “nothing has changed in the last 30 years with most law school training.” All of this concerned him deeply, Susskind added, noting that we are not putting in place a pipeline of what we will need in the legal industry going forward.

Indeed, he surmised that if law school fail us, there will be other groups that fill the void, candidly purposing, “Why don’t we get the best person online and bottle that, compared to the our current model of sage on stage, who might just be average?”

Overall, Susskind and Cohen agreed on the education and skill tests for the future workforce, saying that both are integral to the business and they are dismayed by what they are seeing from universities at the moment.

UK v US — the legal landscape

Framing this conversation about the matchup of jurisdictions, Susskind suggested that we think about this in reference to technology and change, and ask, which side is better prepared? Susskind’s famous drivers of change include: more for less, new providers in the marketplace, technology, and the newest addition, COVID-19. Through that lens, he spoke about eight areas to determine who is better prepared, the US or UK.

  1. Leading law firms — In the 1980s and ’90s, the US was better positioned; however, in the 2020s the UK is leading the way by using better innovative technologies. There is an arms race among UK firms, which further push those firms toward advancement. UK wins.
  2. General counsel — Neither country is ahead. In fact, Susskind found that GCs are very conservative and are simply too busy to change, which is likely a result of many coming from the larger conservative law firms. Tie.
  3. Chief operating officers — These people are responsible for procurement and are typically committed to bringing about change. The theory is that they are well positioned to push law firms harder on costs and use of technology. Susskind said that the US is ahead of the UK by bringing all COOs together in better collaboration, and the US has more of them. US wins.
  4. Court rooms — This one is a challenge to compare because of jurisdictional variances. However, the UK government is bounds ahead of the US with redesigning the way disputes are resolved. UK wins.
  5. Regulators — The UK has liberalized many components of the legal system, especially compared to the US. This has brought about heavy use of alternative legal service providers (ALSPs) on a totally different landscape, including venture capital inflows in the UK. UK wins.
  6. ALSPs — In the UK, the Big 4 accounting firms are clearly ahead in utilization. That said, there is a larger presence in the US of ALSP organizations, which are probably more advanced in the US than in the UK and are used more in the US. US wins.
  7. Legal tech startups — There is an explosion in both countries, but the difference is that in the UK the emphasis is on service delivery to clients, and in the US, it is on tools for traditional lawyers. Tie.
  8. Law schools — Both countries are rather lackluster, and much more needs to be done according to Susskind. The UK is slightly less active on change, so the US is a bit better positioned. US wins.

And the Winner? It’s a draw, 3 to 3, with 2 ties.

At the end of the day, there is not a huge divide between the US and UK in the legal market, said Cohen, adding however, he is envious of the regulation in the UK, which has set up the legal industry there for success.

Both Susskind and Cohen suggested that in the coming years they anticipate a huge inflow of capital into the legal industry by private equity, which could further improve the position the UK.