The Hearing: Episode 65 – Special *US Election* Episode

In this special US election installment of the Hearing Podcast, Sanaz Asgharzadeh, former big law firm attorney now heading her own practice, Atlas Law Firm, speak with me about the election.

With the caveat that at the time of recording a victor had not yet been chosen, and with the votes continuing to be counted in several swing states, Sanaz describes the current mood of the US as it waits to find out who will emerge victorious. Sanaz talks about her background as an Iranian immigrant in the US and how it shaped her interests in the law and political process. She takes us on a deep dive of the US electoral college system and discusses the potential for post-election litigation and what impact it could have on the outcome.

Sanaz also takes us through hypothetical scenarios involving the incumbent that might once have seemed unlikely, but in these unprecedented times are worthy of consideration. Finally, she discusses the importance of counting all of the ballots and the need for transparency in these efforts.

Listen now on SoundCloud

Teaching Law With Technology Prize 2020

While the judges deliberated, I gave professors, students, lawyers, and technologists in the UK a glimpse of the technological innovations coming in the near and longer terms and sense of what this could mean for legal advisers.

Blog: https://blogs.thomsonreuters.com/legal-uk/2020/10/12/linda-chaddertons-legally-bound-wins-the-teaching-law-with-technology-prize-2020/ 

Podcast: The Hearing – Ron Levine – General Counsel – Herrick, Feinstein LLP

In this week’s episode, we showcase a conversation with Ron Levine, General Counsel at Herrick, Feinstein LLP.

Ron, a graduate of Princeton University and Harvard Law School, speaks as a thoughtful realist, proponent for good, and a practitioner of what he preaches. He bears witness as a 40-year litigator, discussing the fascinating dealings of what happens behind the class action suit scenes, describing a lack of transparency, and what he would do to improve the system.

Ron dives into the importance of technology, as a crusader for others in the field. Specifically, in the eDiscovery space he stresses the importance of tools, AI, and being smart about (of all things) the use of email.

He also discusses what the future of litigation might look like with prediction modelling and big data.

Listen on Apple:

https://podcasts.apple.com/gb/podcast/ep-62-ron-levine-herrick-feinstein-llp/id1389813956?i=1000493632731

Listen on Google: https://podcasts.google.com/feed/aHR0cHM6Ly9wb3J0YWwtYXBpLnRoaXNpc2Rpc3RvcnRlZC5jb20veG1sL3RoZS1oZWFyaW5n/episode/aHR0cDovL2F1ZGlvLnRoaXNpc2Rpc3RvcnRlZC5jb20vcmVwb3NpdG9yeS9hdWRpby9lcGlzb2Rlcy9FcDYyX1Jvbl9MZXZpbmVfbWl4ZG93bi0xNjAxNjYwNDM3Njk4NzMzMTY5LU16RXhPVE10TlRVeE5UUTNNRFE9Lm1wMw?sa=X&ved=0CAUQkfYCahcKEwiotKvnlqTsAhUAAAAAHQAAAAAQCA

ILTA-ON goes on: Biggest legal tech conference of the year presses onward

Originally published on the Legal Executive Institute.

By Joseph Raczynski

In a year like no other, the most prominent legal technology conference recently wrapped their weeklong virtual event as the International Legal Technology Association (ILTA) morphed its annual ILTACON event into ILTA>ON.

After initially vacillating on a hybrid in-person and virtual event, before ILTA decided to go with a fully virtual event with more than 100 sessions and various virtual activities. According to the site, ILTA>ON (as it was known) had roughly 3,800 attendees and vendors compared to past years of around 5,000 — a very respectable haul given the circumstances.

As with the 12 other ILTA conferences in which I have partaken in the past, each day begins with a keynote speaker. One of the highlights from the daily keynotes was the first day presentation by Stephen Carver, a professor at Cranfield University in the U.K., titled Leadership Under Stress: Exploring Project Failure at NASA, which dissected the 1986 space shuttle Challenger disaster.

ILTA

Prof. Carver’s talk explored NASA’s failures in planning, procurement, leadership, and change management with the intent to help attendees apply the learning to law firm technology projects. “It’s all about a really small bunch of people not communicating and not learning from their mistakes,” Carver said, adding that sometimes from failure, you have to reimage the entire organization.

Another keynote highlight was provided by Jia Jiang, CEO and founder of Rejection Therapy, a social self-help game, who regaled participants with story after story of his own self-induced humiliation tests — done as experiments in 2012 — to overcome his own fear of rejection. His goal? To be rejected every day for 100 days.

Embarrassing examples included asking strangers on the street for $100 to see their reaction, requesting Krispy Kreme create him donuts in the shape and color of the Olympic rings, and asking a pilot at a rural airport if he could fly his plane, even though Jiang had no flying experience. His underlining theme — fear of rejection can hold you back. It is our natural tendency is to avoid rejection at all costs, which can be detrimental to our businesses, careers, and lives, he said. His goal was to teach the importance of becoming rejection-proof, the basic principles of turning a No into Yes, as well as how to get more Yes answers.

Lastly, another keynote speaker, Richard Punt, who leads legal strategy and market development at Thomson Reuters, offered his insights in a talk titled, After the Quake: Predictions for an Uncertain Legal Futurewhere he took the audience beyond the here and now to see what the future of the legal industry might look like.

Making a virtual event work

The monumental efforts of the ILTA community of volunteers fostered as close to an in-person event as possible. The numerous educational sessions were available via Zoom and ran the gamut from leadership, business development, company track updates, data science, knowledge management, legal services, legal operations, marketing, and finally finishing on the future of the legal tech space.

Intelligently sprinkled among sessions were activities and events facilitated in a networking fashion, with the Watercooler and Hallway as places to meet informally. People could simply jump into the Watercooler and connect with small groups, or one-on-ones via video. Often after a specific session, people were encouraged to meet with the speakers in the watercooler room. This compares to the often bum-rushing of speakers that occurs at typical live ILTACONs, post-session. Other events included wine tastings and comedy events.

Overall, the level of engagement and content delivered at ILTA>ON was impressive. Another highlight included a session that walked participants through how law firms can create workflow apps using a combination of web services and data to build a process on Microsoft Power Automate. In their example, participants learned how they could build a COVID-19 check-in app for firm employees. Another great set of sessions was on data science, unpacking internal data at firms and how it can be leveraged.

Finally, I had the privilege of being selected to report on how ILTA did on their Law Firm 2020 Predictions that were made seven years ago. With a Back to the Future movie theme in the background, I reviewed past predictions to see what came true and what industry sages got wrong with legal technology between 2013 and today. I also peered into the abyss of legal tech’s future over the next five years, before taking a 1.21 gigawatts ride and shooting into that future, focusing on technology in 2030, 2040, and into the Singularity.

It was a Great Scott! moment indeed.

LegalTech Report Card and Predictions 2020 to 2060 – ILTA Conference 2020

I had the privilege of being selected to report on how ILTA (International Legal Technology Association) did on their predictions from 2013 up to today, during their 2020 ILTA-ON Conference. Even more fun, predicting what technology and LegalTech will look like from 2020-2025, and then going out to 2060.

Remember back when we had ‘Law Firm 2020 predictions’? In the first part of my ILTA-ON presentation, we will go ‘Back to the Future’ reviewing past predictions to see what came true and what we got wrong. Then, we will blast into a journey of what LegalTech looks like in the next five years. Lastly, for those who get motion sickness, grab your Dramamine, because we will take a 1.21 gigawatts ride, shooting into the future. We will predict what the technological and legal landscape will look like in 2030, 2040, and into the Singularity! Great Scott!

Part 1 – Jump Ahead (9:17): Grading the Law Firm 2020 report from 2013: https://youtu.be/UgyDyBSJ3AA?t=558

Part 2 – Jump Ahead (22:55) Predictions for 2020-2025: https://youtu.be/UgyDyBSJ3AA?t=1377

Part 3 – Jump Ahead (40:17) Technology Predictions 2030, 2040, 2050, and 2060: https://youtu.be/UgyDyBSJ3AA?t=2419

Podcast: The Hearing – David Brown – Legal Director at Transgender Legal Defense & Education Fund

In this episode I am joined by David Brown, Legal Director of the Transgender Legal Defense and Education Fund (TLDEF). TLDEF is a transgender-led organisation fighting for transgender rights through litigation and other legal avenues.

Working with numerous law firms, David and his team bring lawsuits to demonstrate how statutes are unequal and discriminatory. David tells me how his family inspired him to want to fight injustice. And he explains how TLDEF strategically selects cases with the ultimate aim of moving the law and the equality agenda forward, while also ensuring they authentically represent transgender people’s lives.

David talks about the importance of finding commonalities when discussing transgender people and the discrimination they face. Like anyone, transgender people want a nice place to live, a steady job and access to healthcare. But in many parts of the world, such fundamentals of life are often denied.

David and I also discuss intersectionality, and how transgender people of color are even more likely to face discrimination due to greater distrust and fear.

Listen here:

Apple: https://podcasts.apple.com/gb/podcast/ep-59-david-brown-tldef/id1389813956?i=1000488977873

Google: https://podcasts.google.com/feed/aHR0cHM6Ly9wb3J0YWwtYXBpLnRoaXNpc2Rpc3RvcnRlZC5jb20veG1sL3RoZS1oZWFyaW5n/episode/aHR0cDovL2F1ZGlvLnRoaXNpc2Rpc3RvcnRlZC5jb20vcmVwb3NpdG9yeS9hdWRpby9lcGlzb2Rlcy9FcDU5X0RhdmlkX0Jyb3duX21peGRvd24tMTU5ODAxNDQ4NzYxODkwMzQyMS1NekE1TlRZdE5URXlOamswTnpBPS5tcDM?sa=X&ved=0CAQQ8qgGahcKEwjIzoqL_7PrAhUAAAAAHQAAAAAQAg

Part 2: APIs: The cardiovascular system of the legal platform

Originally published on the Legal Executive Institute.

By Joseph Raczynski

Previously, we discussed how platforms create an ecosystem or environment that allow people and businesses to interact and accomplish tasks and ultimately create a network that can connect and benefit the entire community.

Within this environment, of course, interoperability flourishes – pushing early adopters and innovators to think boldly about workflow and connectivity. How can connecting various applications help attorneys do their job better?

One core component enabling a successful platform to help lawyers be more efficient is the use of Application Programming Interfaces (APIs). These API services allow applications to call upon another computer server to retrieve information. For example, if you check the temperature on your phone and it instantly tells you, then what likely occurred is that your phone’s weather app, working on the phone’s platform or operating system, made a request called a post that asked for the temperature, then listened for a response called the get. Your phone then received this get — some small snippets of computer code in a format that the app could understand — and then displayed it on your phone.

How an API works: The App searches via a “post” and receives a “get” in the form of data from a remote server to display

Increasingly, we are seeing the legal community open large repositories of data so that applications on the platform can interact with it. The legal industry has know-how products that utilize APIs for both the search of that remote content as well as ingesting content into a firm repository. The latter, a data API, permits the legal know-how to be searchable using metadata or full text search.

In this way, a firm could leverage their universal search inside the firm to find answers from said remote data as well as their own internal repositories of information with APIs facilitating efficiency across the platform. Apps can connect with other apps and pass on information and usher in the ability for developers to build possibilities left only up to the imagination. No longer is software or data siloed, where people must swivel chair back-and-forth as the only path to solve problems and get answers.

Law firms can incorporate APIs into a platform that creates near infinite possibilities for more efficiency, access to data, and collaboration. For example, imagine that a law firm hopes to win a REIT (Real Estate Investment Trust) as its client. In this instance, the REIT owns and manages a collection of 100 office buildings around the US and the UK.

Promoting efficiencies in workflow

By using APIs throughout this process, we can see how the law firm can create efficiencies focusing on workflow and transactions. Let’s see how this process would work and how many APIs the law firms must employ.

First, the firm’s new client initiation begins in the legal platform through an automated form that is linked to multiple APIs so that each process can talk to the other. Each potential client will need a conflicts check, done as a Legal Entity Identifier Service (that’s one API), which affirms the proper and standardized name of the REIT is used. Simultaneously, the firm may want to run an automated docket scan (the second API) for any recent litigation the client has been involved in; thus, producing a risk score as well as creating possible business for the firm’s litigation practice. If legal action is necessary, after the conflicts check, the firm can send all filings electronically to a court via another API (that’s three).

Each one of these steps may trigger alerts to support staff or lawyers, adding tasks to their caseload and resulting in the use of yet another API on the Legal Case Management side (API #4). Additionally, a legal project manager or partner can see a dashboard view of hours spent, tasks completed, and gates remaining, as each task or portion of a task moves through its stages (API #5).

Once the firm confirms the client, the firm’s next step is to review all 1,500 leases the REIT has with its tenants. The firm would bulk load these leases to its cloud-based repository so it could then tap into a hypothetically huge number of APIs to review or analyze. First, the firm’s review would focus on contract anomalies that could put the REIT at risk; then, the firm would apply a Contract Review API to the 1,500 documents which automagically looks for specific words or phrases with a set of predetermined flags for concern (API #6).

From there, the system would automatically send relevant documents to attorneys to review using a document review tool for analysis (API #7). Noting that real estate laws or tax codes change frequently in both the US and UK, additional alerting and vetting tools could analyze the language in the contracts citing new or changed regulations and flag those documents for review (API #8). Another process could identify contracts with end-of-lease terms that could trigger a reminder for lease-renewal to tenants. Updating terms, the documents would be sent to tenants, requesting their digital signature via another API (and that’s #9). As you see in this simple example, nine APIs were utilized for a single client on-boarding.

The next iterative and logical shift within legal tech is now surfacing. The legal platform, an outgrowth of a burgeoning tech infusion from start-ups around the globe, is being built. At the same time, clients are pushing for legal automation, which can be an innate part of a platform. Indeed, automation baked into a platform, enable by connectivity, and buoyed by APIs, is a potent mixture.

The interoperability of applications and data, bolstered by the ability for these platforms to operate on a containerized security mechanism, is paramount going forward. Underpinning all of this, of course, is the user experience. Will the platform enable users — lawyers, paralegals, firm administers, and technologists — to have an easy intuitive experience? Further, can those users interact with applications with ease, just like consumers experience on the Apple App Store or Google Play?

The promise is there, and the stars, they are finally aligning.

A legal tech boom, automation explosion, and a desire for interoperability & security pushes the legal platform forward

Part 1: What the heck is a legal platform and why does it matter now?

Originally published on the Legal Executive Institute.

By Joseph Raczynski

In the past, I’ve spoke about a possible tsunami of change within the legal industry. It is something I have been carefully watching for several years, but now I think the switch may about to be thrown.

During a recent discussion about legal tech startups, Prof. Richard Susskind mentioned that several years ago there were a few hundred start-ups in the legal space, now there are a few thousand. This is a catalyst for the idea of a legal platform. How does the industry integrate all of these disparate companies and their applications and have them work together? Well, solutions are formulating, but first we need to understand the concepts.

What is a platform?

Platforms have existed for ages and in many forms. Simply put, platforms create an ecosystem or environment that allow people and business to participate if they abide by rules and meet standards. Ultimately this confluence creates a network effect for the community. For example, Apple created a platform in which anyone that uses a standard code set could program their app and upload it to the Apple store for purchase. Many requirements are met before the app is available in the App Store, such as safety, performance, design, and legal commitments. The specificity is granular — an icon can only be a certain size, for example, and there is a 4,000-character limit for the app description.

Fundamentally, what this platform offers the consumer is a friendly, consistent, and reliable experience which is likely very secure. Both the developer knows what to expect, as the Apple platform dictates the rules, and the consumer has fair and reasonable expectations about their interaction when browsing, buying, and downloading an app on the platform.

Legal Platform

One of the major benefits of a platform is interoperability. The concept that tools or apps can interact on the platform by exchanging information or leveraging other software, services, or even hardware. For example, if I grant permission, my bank app on my phone can interact with my phone’s camera to snap a picture of a check I want to deposit. My grocery app can interact with my GPS, alerting me to a 50% off deal on organic Ethiopian coffee as I pass the store. Information sharing, by permission, among interconnected applications creates efficiency and workflow, which as we will describe later, matters in the legal industry.

History of legal platforms

In 2018 the legal platform took flight. The concept or perhaps the term, while not new to most industries, was new to legal. Picture a world where hundreds, and now thousands of emerging companies exist around the globe. They all have their own code bases, built on a multitude of computer languages, and all vie to gain the attention of big and small law firms across both the business and practice of law. Many of these start-ups, competing against a host of known players in the legal space, have flooded the market like a new gold rush.

How does a law firm deal with a huge variety of applications, especially in regard to installation, compliance, and security of each one of these apps?

The initial focus from the first platform created was on a concept in the software and application world called, containerization. (Essentially, though, we are describing standardization, with an emphasis on security.)

Law firms had been hit especially hard over the last five years, with hackers focused on exploiting intellectual property or other data behind law firm firewalls. The explosion of new applications on these myriad of codebases further complicates security. Ask any firm applications and IT specialist. When a new vendor plug-in for Microsoft Word is purchased by the firm, IT must test that plugin i) to see if it works on their version of Word; ii) to test to see if it will interfere with 30 other plugins already imbedded in Word; and iii) to see if it interferes with any other applications at the firm. This is a massive pain point and source of cost for organizations. Some firms I have met with have a six- to twelve-month window to rollout a single plugin, primarily as a result of necessary testing.

Other legal platforms have tossed their hat into the ring, too. Some organizations across the legal landscape are uniquely positioned to not only create a platform, but hypothetically, to have hundreds of legal applications play on top of the platform from its inception. The surprising twist we are seeing transpire, which is consistent with all maturing industries, is a play to be inclusive of all competitors on a single instance. In this world of platforms, walled gardens can exist, but fully, truly open platforms are even more powerful. When organizations build a space where everyone can play, it tears down borders and enables customers to take full advantage.

Indeed, the perfect platform has no walls, and all players — companies from across the legal technology landscape — can put their applications on the platform, even the competitors of those that create the legal platform.

Once the legal platform is leveraged, you can see in the graphic above that tools can be integrated based on the organizational inclination. While most law firms tend to be Microsoft shops, there are a few global consulting agencies, such as the Big 4 accounting firms, that are using the G-Suite by Google.

In this new realm, all options are viable and permissible, allowing each organization to choose its own adventure or mixture of products and services to best serve its clients or customers. While the legal platform in its relative infancy, there are currently several organizations already competing in this space.

The platform experience

To access a platform, users logs into their computer using their Active Directory (AD) credentials — normally, their Windows login information. Once verified, users land on a customized page that knows them professionally, for example, as an IP litigator partner, working on five cases for three clients. Then the platforms gives users access to a bevy of resources. All of this information is serviced up to them, including how many hours they have billed, current awareness about their clients, their latest docket filings, and perhaps even a dashboard view into all of the ongoing engaged matters from their associates.

Or, does a partner need an app to review some new discovery that just came to light? She can go to the Legal Platform App Store, see which approved eDiscovery applications have been approved and vetted by the firm, and immediately download it for use.

It is integrating activity streams, teams, search, documents, billing dashboards, and the interconnectivity of applications that can create workflow and enhance productivity and efficiency, all in a secure cloud-based platform.

In this next part of this series, we will examine application programming interfaces (APIs) — the cardiovascular system of the platform infrastructure.

Part 4: Legal Geek’s Uncertain Decade – The future of legal technology & digital transformation

Originally published on the Legal Executive Institute.

By Joseph Raczynski

By 2030 we will see significant lawyer work being done by machines. As exponential growth of technology consumes to world, the legal industry is especially appetizing. As a result, legal services will be fundamentally different than today in terms of both job function and the way legal services are provided.

In the final of a four-part global webinar series, The Uncertain DecadeLegal Geek brought us bold concepts and vision about the future of the legal industry, bringing together two of the most respected names in the legal industry — Mark Cohen, CEO of Legal Mosaic; and Prof. Richard Susskind — to delve into the how digital transformation impacts the legal function and then peer into the future of legal technology.

The future of legal technology

Machines will dominate the industry, Susskind offered, starting the discussion of what he termed, The First 60 Years, where the legal industry was marked by a time of automation from 1960 to today. While that continues, he emphasized the pivot will be from automation to transformation in the future.

Underscoring this concept, he cited various examples of technology’s progress, including memory chips becoming cheaper yet larger in capacity, and a “huggie bot” that can read human feelings and offer a hug based on perceived emotions of sadness, joy, or comfort.

Concluding with this thought and pushed by exponential growth, Susskind suggested we will see an increasingly capable, pervasive, and connected world pushing legal to change.digital transformation

Richard Susskind’s future legal tech

While Susskind raised the concept of virtual reality in legal — something he said likely will have a significant impact in five to ten years — he also introduced a tantalizing concept called embedded law. That’s the idea of placing legal components into everything, Susskind described, drilling into this futuristic idea by discussing how at various times, the law could be baked into the process by being coded into workflow or documentation. Extrapolating out from that, Susskind predicted the legal industry could see algorithms helping to curate current legal guidance. and in turn, the possibility of decisions or recommended advice, also called augmented intelligence. (I would suggest that blockchain may play a significant role in this, especially in the area of smart contracts.)

It is really about the systems going forward not the lawyer, Susskind said, as Cohen peppered him with questions. Lawyers not close to retirement will have to re-engineer themselves, he explained, adding that at the core of this thought process “is how can lawyers deliver the outcomes that clients want.”

With his polite Scottish accent, Susskind further explained that people have been confusing “our services with how we get there and how we have always worked.” While the industry has been about automation for the past several decades, transformation is what will take hold going forward, he noted.

Indeed, law firms have been so keenly focused on the plumbing technology (e.g., accounting, computers, and connections) for the back office that they have missed the boat on technologies to deliver legal advice to their clients and identify dis-intermediaries in the business.digital transformation

Richard Susskind’s future machines

In concluding his vision of the future of legal technology, Susskind said we need to “put the fence at the top of the cliff rather than the ambulance at the bottom” — meaning, we should utilize technology to improve the customer experience by providing preventative guidance and information technology.

For example, he said, several law firms have rethought their office lobby to make it more welcoming as a reception area, sharpening a focus on user-centered design and design-thinking enabled by technology. That will be the future, Susskind noted.

Getting practical with digital transformation

Historically, digital transformation has been under discussion in other industries for years, and now, the legal industry is catching up. Indeed, Cohen cited studies by Gartner that show this is the most important function for businesses, immediately followed by finding talent to provide outcomes for new ways of delivering services to clients.

Cohen further defined digital transformation as being “about customers, by finding new ways of gaining access, ensuring customer satisfaction, and not about the latest technology.” Technology is simply an enabler or tool, Cohen explained, adding that data, on the other hand, is monumental.

Lawyers have traditionally used their gut, which will no longer work, he noted, mentioning that findings from McKinsey & Co. show that those organizations that have performed a digital transformation are “23-times more likely to acquire customers, 6% more likely to retain customers, and 19-times more likely to be profitable.” Digital transformation also has an impact on diversity, collaboration, and the organization’s ability to culturally adapt, he said, adding that the industry needs to do a much better job of being inclusive of every group — lawyers, technologists, data analysts, and people of various backgrounds, genders, and ethnicities.

“Others out there can do what lawyers are doing right now,” Cohen said. “Lawyers must become aware of digital transformation and either adapt to it or be marginalized.” Unfortunately, again citing a Gartner survey, a very small percentage of the legal industry is ready for change, he added. The industry must be open to new paradigms around who is hired, how they’re educated, and how regulators could get involved as the industry is moved beyond self-regulation.

This is the central question for legal professionals going forward, both panelists contended. How can lawyers prepare themselves for the future of the legal industry and digital transformation? Both agreed that people need to think long and hard about what a legal career will look like in 2030, and what the reality is behind that. If you are winding down your career, you should be fine, they said, but if you are younger, you may want to rethink your role.

The legal industry’s openness to the full spectrum of people, cultures, legal and non-legal roles, and technologies will be paramount to its future sustainability, they added. And while the horizon could be fabulous for most, in practice, lawyers in the future will be working to enable legal machines, far more so than today. Fighting that concept is inevitable for some, and losing is almost certain. The winners in this legal evolution are those that find a way to adapt.

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.