The end of courts?

Civil justice systems aren't serving the public interest. It's time to break new ground and chart paths towards fast and fair dispute resolution that will meet people's actual needs.

I’ll explain the title at the end.

I don’t know how crippled and compromised your country’s civil justice system has become, but in my neck of the woods at least, it’s ugly. A feature article last month in Canada’s Globe and Mail went into excruciating detail about the “unbearable” state of a civil justice system in which the trial process can easily stretch four to five years. Your own country will have similar horror stories: In the US, Britain, and Australia, “broken,” “shambolic,” and “locked out” are used to describe the state of civil justice.

Put aside, just for the moment, the much larger problem of “unmet legal need” — or more accurately, the restricted and unequal access to civil justice systems that exclude 90% of their potential users. What should really alarm us is that most of the people who have accessed the civil justice system now wish they’d never come near it.

Like all systemic problems, this one has multiple causes, including but not limited to:

• Governments: Not enough support, too few judicial appointments, decrepit courthouses, too little funding to run massive systems properly at scale.

• Courts: Persistent inability to modernize, technological backwardness, punitive formalism, a failure to adjust to the reality of self-represented litigants.

• Litigators: Too much self-interest, too many tactical delays when representing a wealthier party to burden opponents with added time and expense.

• Judges: Too tolerant of procedural abuse, too much lip service about access, too willing to maintain the archaic pantomime of the “zealous” adversarial system.

Whenever we examine any systemic problem, however, we need to remember a pair of sharp observations from two leading systems analysts: William Edwards Deming’s axiom that “Every system is perfectly designed to get the results it gets,” and Stafford Beer’s corollary that “The purpose of a system is what it does.” We know that civil justice systems worldwide do not serve the interests of the people who use them or the societies that need them. So whose interests do they serve? Hint: You’ll find them in the bulleted list above.

These current beneficiaries of our civil justice systems, accordingly, are the only ones who can get us started down the path of a solution. But until all or even most of them come to the table truly interested in change — and ready to make the sacrifices necessary to achieve it — we’re not getting anywhere. Seven years ago, I proposed a collective-effort “Council of Elrond” for civil justice reform, and I still think it’s a feasible model for any jurisdiction that might wish to adapt it. But I haven’t seen any invitations to Rivendell in the mailbox yet.

Enough is enough. I care about civil justice, but the key stakeholders of civil justice systems have shown that they don’t, or at least that they don’t care enough to take the necessary steps to make those systems work properly. So it’s time to look elsewhere. If we can’t fix our civil justice systems, then let’s go build new ones.

We need to start simple. System design can get extraordinarily complex very quickly, and complexity is our enemy at this stage. Tom O’Leary nicely inverted Deming’s axiom with a question of his own: “We want the system to work for [this group]. What would need to happen for that to be true?”

If we wanted civil justice systems to work for the ordinary people who enter them seeking solutions to their problems — as opposed to the professionals who administer and make a living off those systems — what would those systems look like? What would be their features? I can think of at least three:

1. Fair: Civil justice systems must be — and must be perceived to be — fair, authentic, and trustworthy. That means transparent processes, understandable decision-making criteria, and independent arbiters. It also includes this underrated element: Meaningful participation. Much of what drives people into litigation is the desire to “have their day in court”: To tell an engaged neutral official their story, and to be heard and acknowledged. Validation matters, even more than vindication, for people to feel they were fairly treated. Audi alteram partem isn’t meant for litigators; it’s meant for litigants.

2. Fast: If you make people wait years for their day in court, even the best possible outcome will not matter; they will only remember the agonizing experience. Effective civil justice systems process dispute resolution quickly, putting the parties in the driver’s seat with strict limits on time and materials. We’ve become so accustomed to bureaucracy in our societal infrastructure that we’ve lost any sense of urgency. We expect long lineups; we assume lengthy turnaround time. An effective civil justice system would take people’s problems seriously — and as a result, it would deal with them expeditiously.

3. Fine: This means acceptable, or adequate, or cromulent, or any other term that signifies good enough. Lawyers and judges like to describe the purpose of civil courts as “justice.” I wrote last year that courts are actually “expensive expert systems for the propagation of the common law.” But most people don’t need “justice” and they don’t care about the common law; they want their day in court to get their dispute resolved and to get on with life. They’ll trade some of what justice entitles them to in exchange for what fairness and speed deliver. Is this perfect dispute resolution? No, but it’s fine — and that’ll do.

I was tempted to add a fourth four-letter F-word — no, not that one — to this list: Free. But that would be neither realistic nor desirable. An effective social system ought to be funded by its users as well as by society in general, and there’s value in setting some financial entry thresholds to a dispute resolution system in order to avoid a torrent of baseless claims. There’s a wide spectrum of affordability between the utter financial inaccessibility of civil courts and the dream of Free Justice for All, and new civil justice systems have plenty of room to find a place on it.

Do we have any candidates for these systems, either existing or theoretical? Again, yes we do, and again, I can think of at least three.

1. Arbitration: We conceive of arbitration today as an increasingly expensive tool for corporations to achieve their goals (often at the expense of consumers). But it doesn’t have to be that way, and it didn’t used to be. This insightful conversation between Sean West of GeoLegal Weekly and Bridget McCormack, CEO of the American Arbitration Association, highlights the history of arbitration as a force for good and points us in the direction of what I’d call “grassroots arbitration”: Small, flexible, accessible online hearings in a trusted-brand environment where a skilled and empathetic arbiter hears out both sides and delivers a fair, fast, and perfectly fine decision that provides the closure people need.

2. Community: Completely opposite from online strangers rendering arbitrated verdicts, there’s ground-level, community-led dispute resolution. “Community Justice” would resolve (and ideally could help prevent) disputes within defined geographic or cultural areas. It could be neighbourhood-based DR (in a local library or community center), culturally based DR (organized and carried out by an ethnic group or nationality), or spiritually based DR (in a church or mosque or synagogue or other house of worship). These efforts would be community-funded, though I wouldn’t rule out sponsorships by local businesses or even corporations (obviously in matters that don’t involve these companies in any way). DR by the people, for the people.

3. Artificial Intelligence. You knew this was coming — in fact, if you’ve been paying attention to what’s happening in China, you’d know “Robot DR” is already a reality in parts of the world. Even with its astonishing advances in the last 18 months, however, I’m certainly not ready to turn my disputes over to Generative AI resolution, and I’m pretty sure you aren’t either. But the day is surely coming — the AAA is already on its way there — when “AIDR” is a real option for real people looking for ways to settle a dispute. “Fast” would be a given, and “fine” would surely be the best we could ask of AI resolutions, so the future success of AIDR will rest on how much people believe it to be “fair.” Should that day arrive, a lot more than just dispute resolution will change.

There are many other possible means by which we could strive towards “3F” civil justice — “Judicial Subcontractors” deputized to go out and bring courts to the community, increasing access and clearing court backlogs; or “Mobile Arbiters” called in to troubleshoot everyday disputes at homes or in the workplace, or even nipping disagreements in the bud before they become full-blown fights. More options are always possible and always welcome.

And ideally, the traditional civil justice system would still be around, too — courtrooms and court procedures, for high-stakes, legally complex civil disputes that require lawyers and judges. But if they’re not still around, we can always come up with something for those situations too.

Which brings me to the title of this piece. Back in 2009, Richard Susskind published The End of Lawyers?, his landmark analysis of the legal sector and forecast of its future transformation. Much was made at the time about the title: What did it mean? Richard said he was not predicting the extinction of the legal profession — rather, the book was “an inquiry into whether lawyers have a future, rather than a prediction of their demise.” Hence, the question mark.

In my review of The End of Lawyers?, though, I addressed the title in a different way. “If we take another meaning of ‘end,’” I wrote, “as an outcome worked toward, rather than the more popular meaning of ‘disappearance,’ then we could say that this is a book about where lawyers are going, and what use will be made of them when they get there.”

And so today, I ask: “Where is the civil justice system going? What use will be made of it when we get there?” Personally, I see a bright potential future for civil dispute resolution. And I would like that future to involve the traditional civil justice system in some way — courts, judges, litigators, and all.

But that will be up to them.