Thursday Thinkpiece: The Elephant in the Courtroom

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Understanding Justice Needs: The Elephant in the Courtroom

Hague Institute for Innovation of Law (HiiL) | November 2018

Excerpt: Project Introduction & Chapter 6: Enabling the Justice Sector Transition

Project Introduction

For the first time, we quantify and pinpoint the yearly need for fair solutions. In this report, we estimate that each year, 1 billion people face a new and serious conflict. They experience violence, stress, loss of work and income or damage to key relationships. Data show that right now, people rely on litigation in overburdened courts or go to friends, lawyers and other helpers for informal solutions. Across countries studied, one third of people’s most serious problems are solved in time. The report shows how legal service providers and courts could embrace user-centred innovation and focus on seamless delivery of fair solutions.

Chapter 6: Enabling the Justice Sector Transition

A new value proposition is emerging

For citizens, the access to the justice gap is huge. Justice workers and their leaders give strong signals that scaling litigation does not work. On the ground, a new value proposition is emerging. It is closer to what citizens need. More user-friendly. More in line with what the army of justice workers is actually doing, in courts and out there in communities.

Transformation is needed

In this and the following chapters, we build on the data and the trends identified. We sketch the challenges of transformation, exploring the costs and benefits of making legal systems more open to innovation and more responsive to human needs. In this chapter, we explore three broad scenarios.

For leaders at courts and in ministries this is a major challenge

Taken together, this is an unheard-of challenge for justice leaders. In the highly centralized justice system much depends on them. Let us look at the choices they have. So we feel the depth of the challenge they are facing.

Continuing incremental change is one option

One option is to continue managing the system in the way they always have. Then ministers of justice and chief justices would act on the belief that the nine signals of a system under strain will gradually lead to good policies. The innovation trends and the new value proposition will drive changes in laws and improvements on the ground. They could hope to remove bottlenecks one by one. They could slowly shift budgets in the direction of the new value proposition, away from current, burdensome litigation processes. But the tensions would continue for a long time, with a risk of further collapse of their systems. Innovation would probably stall because of the many barriers. Justice workers would move away from helping individuals and the burden of injustices would probably continue to increase.

Top down setting up assembly lines to produce solutions instead of litigation

A second option for justice leaders is to accept that the legal way of progress, always amending ancient laws and procedures, is what got us here in the first place. Ambitious leaders could restart with the end in mind. They could design and implement rules for new, problem-solving procedures, and impose a new ecosystem for the justice sector, supporting rapid innovation. Their budgets could stop paying for litigation rooms and new courthouses in city centres and start paying for solutions delivered by websites and mobile judges.

Such a top down approach may work. It is also likely to create huge opposition and uncertainty. Many mistakes will be made, because the top lacks the knowledge that is available in the field.

Transforming in tune

A third option is perhaps more realistic. The challenge is too big to leave to individual ministers or court leaders. Change cannot be forced. Deep change is needed. Not delivering burdensome litigation, but aiming processes at agreements and understandings requires changes in almost every routine and practice in legal services and at courts. Parting from adversarial forms of litigation will be painful for many judges and lawyers. We have to acknowledge that this is major. That it takes time to accept the need for change and the benefits of change as a reality. That all of us in the justice sector need to help one another to make this transition. Guided by a broad coalition of leaders, not only by ministers and chief justices.

Many innovators and justice workers already work on this

Transformation is already happening. Innovation is already making this happen. Both in courts and in legal services working for individuals. In government agencies and in start-ups. Fair solutions are crafted by local authorities in villages and by social workers in cities. The innovation trends supporting this value proposition are similar in the countries we work in. For most in the field, it is pretty clear what kind of solutions people need. Many turn this into new methods of delivery already.

We need to build the ecosystem for delivery at scale

The challenge is scale and speed: upgrading the tools and professions of the justice sector and rapidly implementing technologies. In Chapter 4 and 5, we listed the barriers experienced by those delivering a new value proposition. So what needs to be done to overcome these barriers during this transformation process?

Making justice attractive to invest in

Scaling up requires investments in high quality information products, platforms or standardized services. Even more money is needed to position a trusted brand. Resources to invest are scarce, we find. Investors are not allowed to participate in law firms or courts. Donors, social impact investors and governments wanting to invest in justice see few convincing value propositions. They see a very non-transparent market with few convincing value propositions. They see regulation that restricts what may be delivered: advice by non-lawyers is forbidden, innovative court tracks must comply to rules of procedure. Governments are not thinking deeply about legal infrastructure as investments. They pay for courthouses and IT, because that is what courts are asking for. International donors seem to have adapted their preferred projects to the size of current NGO programs. They spend less and less money.

Market transparency: clients can easily select and trust what they buy

A next challenge is how to reach the customer and to be seen as a trustworthy resource. All organisations wanting to deliver basic legal services, from courts and lawyers to online platforms, seem to struggle with this. Many small suppliers together create a non-transparent market. Adding new things brings more confusion. Building trusted brands, with clear value propositions, is part of the answer. A regulator actively creating market transparency may also be needed for all access to justice products. Not just for lawyers, courts or mediation. A next-generation system for certification and the creation of market transparency is needed

Ways of thinking we often encounter and invite leaders to explore

  1. Justice is delivered by judgments
  2. People seeking access to justice want to know who was right or wrong
  3. If parties do not like what they get at courts, they can agree any other procedure
  4. Fair solutions should be available for free, many people cannot pay
  5. Each country has its own legal system, so justice problems and solutions are very different
  6. The role of a judge is to decide on law and facts; no mix with other roles
  7. The role of a lawyer is to advise and represent his client; no mix with other roles
  8. People come to court with trivialities
  9. We are already changing step by step; major changes are impossible
  10. Procedures and IT platforms should be designed and owned by the state

Opening up for three step services: integrated supply chains

Few organizations deliver a one- stop-shop service. A client with a noisy neighbour might first go to a legal information website or listen to a radio show. Then she has to find a trustworthy bridge-builder. The negotiations might fail, however, so she also has to think about whom to address as a neutral “judge” with authority. So she needs to buy three separate services and somehow connect them. If she could buy one clear journey from her problem to a solution, that would be great progress. Self-help, mediated agreeing and coming to decisions with a judge at the table have clear synergies. Learning in phase 1, helping to agree in phase 2 and making it easier to decide in phase 3. Removing the many barriers between the phases would be beneficial.

Allow revenues to grow with scale and quality: better financing and sharing fees

Court financing models need to be revised to allow for scalable services. Otherwise courts – or the government paying for them – have disincentives to serve more people. This is a challenge courts have in common with free NGO services or websites. In this non-transparent market, it is difficult to ask higher prices for higher quality services. This is a well-known economic principle which predicts that in the presence of information asymmetry between buyers and sellers only degraded services will survive (Akerlof, “The Market for Lemons: Quality Uncertainty and the Market Mechanism”). Fee systems can be designed from a user perspective. Generally, consumers like paying fixed amounts for clearly defined services. In the field of justice, solutions always address two or more clients. Many others also benefit from peaceful resolution. Between all these beneficiaries, costs can be shared in smart ways.

HiiL Trend report Trialogue on court financing models making it unattractive to improve access to justice.

See Chapter 7 for willingness to pay and financing mechanisms

Together they can scale: if they buy, partner, tender, co-create, cross borders

Courts, small NGOs and legal aid lawyers have more clients than they can serve. Innovators developing apps, online platforms, or user-friendly court procedures need clients. They share the same ambition. Together they can scale. So they should merge, partner and learn how to create justice journeys together. We have to create a lively, open ecosystem and market. Where courts buy new procedures. Where legal aid lawyers become a partner in a brand of innovative bridge-building services. Where ideas are jointly developed into new standards instead of copied from other countries. Bridge-building where all can win.

Lawyers and innovators jointly reset rules that stand in the way

Many of the barriers to innovation are man-made: rules stand in the way. Platforms would like to be able to give high-quality legal advice. Legal aid lawyers would like to be able to attract capital. Courts would like to partner with trusted innovators. Courts would like to be able to co-create online platforms instead of needing to tender or build them in house. Innovators setting quality standards for the next level of services would like to partner with bar associations. A rule system that is truly welcoming innovations is a major issue.

Lawyers and judges will feel the pain of accepting and resisting change

All this has profound consequences. Improving, innovating and scaling services means the rules, funding methods, education and mental models of lawyers working in the sector will change. They are all oriented towards working in the corner of formal justice, with the attributes that are thought to be effective in the setting of a courtroom. Many people working in the justice sector would love to get out of that corner. At the same time this causes unrest that can turn into resistance. Experimenting with new processes is one thing, but changing almost every daily routine is different. This change is about values, about principles that were taught at university, about income security, about the daily interaction with colleagues and in courtrooms.

Trade-offs and underlying values: much to gain

There is also much to gain. If the justice sector can find the right trade-offs, many of the uncertainties can be managed. New opportunities can outweigh losses. The personal values of justice workers can be more aligned with their everyday workflow. The values of fairness and equal access to justice for all can be served. Legal work for individual citizens will be more rewarding, less stressful and more meaningful.

Possible trade-offs towards user-friendly justice

  1. If bridge-building services, innovative courts and online legal platforms become trusted brands, citizens will pay for fairly priced high-fairness solutions.
  2. If courts start buying and co-creating user-centred procedures, then innovators can attract capital so quality can rapidly increase.
  3. If financial models are sound and budgets will not explode, ministries can stimulate innovation and scale.
  4. If more individuals than only legal talent are allowed to work and invest in the sector, each supplier can develop more valuable services

Others already faced their transition

Similar transitions are under way. The world is transitioning towards renewable energy. In the 1990s, the health care sector finally succeeded in making a long transition to evidence-based medicine. Such transitions need to have focal points, and groups of people taking the lead, spreading ideas, monitoring progress. Using the know-how from other transition processes, this change process can now be set up and managed effectively. To make this tangible, the Table below gives indications of activities, possible partners and resources.

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