Redesigning the Legal System: Let’s Start With What It Takes to Achieve Justice

There have been for years many outspoken proponents of using increased advanced technology in the legal system: use of technology by lawyers, remote court and tribunal hearings, increasing accessibility of information — substantive and navigational — for users of the legal system, and making decision-making systematic through algorithms. In certain respects, using technology has proceeded apace (providing online information, for example), but in others, it has been slow (for instance, court proceedings). Two of the major reasons for heralding increased use of technology are that it makes the legal system more efficient and that it responds to the needs of those who have been among those excluded from the system. No doubt those areas that have been slower will now adapt more readily to advanced technology, but shouldn’t we ask “why”, “what is it we’re trying to achieve?” If we answer that, we’ll have a better sense of what needs to be done.

My purpose here is not to discuss how legal actors have turned to technology to keep the system going — I’ll refer to just a few examples of that — nor even to consider how this might affect how the legal system operates or should operate in the future. I’m making the assumption that some of the efforts during the pandemic will continue or will provide the basis for more considered use of technology in the future post-pandemic.

The one point I want to make here is that we need to bring to that exercise thoughtful, meticulous planning that results not only in making technology more prevalent, but takes advantage to redesign the legal system to be more responsive to users’ needs. Put another way, we should see this disruptive period as an opportunity to design a legal system more conducive to achieving justice.

The coronavirus crisis has been a boon for those who’ve been chomping at the bit to increase the use of technology: seeing the courts (for example) suddenly resort to remote hearings, they have seized the perfect opportunity to wave the flag of a bright, shiny legal system accelerated to a high tech world.

Indeed, it does seem that so much that was hidebound merely needed to be nudged, by a pandemic unfortunately, into this new world. Or maybe not the pandemic, but the kind of new kid on the block, Zoom, with its magical ability to bring together so many (a thousand of your closest friends?) remotely, their little pictures filling the screen, or so few (gran with the grandkids) in more revealing images, its great backdrops and private rooms. Zoom has been around since 2011, but few outside people connected to a limited number of venues were familiar with it; now it has become the largest remote collaboration tool across sectors, although also subject to problems such as hackers. There’s other similar software available, but Zoom seems to have captured the imagination. So legal system actors have become alert to the means to shift their in-person activities to online activities. Mostly, this has meant trying to maintain what they usually do, using a different platform, as it were.

Zoom has been used by law firms to keep their clients close and their partners/employees closer, despite working from home, and by courts to hold hearings. Courts have ordered parties to use remote apps (and have done so even before COVID-19). (For a discussion of the advantages and disadvantages of Zoom, some of which have been addressed, as well as the use of the app by courts, see Omar Ha-Redeye’s Slaw post.)

It also turns out some of the safeguards we have held dear have been more pliant than we might have thought. For example, it took little more than a stroke of a pen to allow witnessing of wills and powers of attorney online — no need for everyone to waste their time or risking their health convening in one place. In Ontario, O. Reg. 129/20 under the Emergency Management and Civil Protection Act has allowed, “for the duration of the declared emergency”, online means of making or witnessing signatures for wills and powers of attorney.

Lawyers and paralegals in Ontario may also feel comfortable commissioning documents on line. Thus the Law Society of Ontario (LSO) states, “the best practice for commissioning documents remains for the lawyer or paralegal who is acting as a commissioner to be in the physical presence of the deponent to commission the document(s). Commissioners should not engage in virtual commissioning.” (see here) However, during COVID-19, “The Law Society will interpret the requirement in section 9 of the Commissioners for Taking Affidavits Act that ‘every oath and declaration shall be taken by the deponent in the presence of the commissioner or notary public’ as not requiring the lawyer or paralegal to be in the physical presence of the client.” (see here).

However, there does not appear to be an order under the EMCPA permitting this shift, although the attorney-general tweeted about the LSO’s position and refers to Bill 161 which continues to refer to the need for commissioning to take place in person (Schedule 4, s.9(1)). It also provides, though, that commissioning does not have to take place in person if regulations provide and the conditions set out in the regulations are met (Schedule 4, s.9(2)). Bill 161, omnibus legislation which would amend many legally-related statutes, has not yet been enacted and therefore, as long as the law is concerned, the situation covering commissioning of affidavits has not changed.

Other provinces have also permitted online signing and witnessing of wills and powers of attorney and commissioning of affidavits and, like Ontario, have set out conditions that must be satisfied in doing so. In Alberta, for example, the Court of Queen’s Bench has taken the initiative to allow, “with the approval of the Law Society of Alberta”, remote commissioning in civil and family matters, subject to detailed instructions.

An excellent review of the different ways jurisdictions have addressed remote commissioning can be found on the NSLRP website. It seems there are various ways in which that “sacred” requirement of commissioning in the presence of the deponent can be ignored — or compensated for temporarily, since the same affidavit witnessed in person is required by some jurisdictions to be filed later. (I note here LawPRO’s caution that lawyers witnessing wills or powers of attorney virtually may find themselves the subject of a claim for problems with the will or POA, even if they didn’t draft it.)

Courts are turning to online hearings more often. The Supreme Court of Canada has announced a list of cases it will hear via video-conference. This is easier to do, of course, than proceedings involving witnesses. Amy Salyzyn has discussed the development of remote hearings in her Slaw post here.

Commentators have already begun to cast their thoughts beyond the pandemic to a time when more “normal” conduct may be possible. (This may be some time, of course, depending on when a vaccine for COVID-19 and when successful treatments for those who do acquire the virus are developed, determined to be safe and widely available. “Normal” also requires that particular members of society will be not be required to remain in isolation because of, say, age or medical vulnerability. But this time will come.) The issue then becomes the extent to which requirements and conduct suitable during the pandemic or changes that proponents have previously urged that have sprouted up in response to the pandemic will continue or will be made even more prevalent. This is true not only for the legal system, but for other systems, the weaknesses of which have been revealed or that it is no longer possible to avoid (long-term care and other institutional settings spring to mind).

So let’s think about where to start.

Salyzyn’s post explores the advantages of virtual hearings (many people who cannot attend an in-person hearing will find them accessible, for example) and carefully considers concerns that might or, indeed, are likely to arise. In some cases, to cite just one concern, such as sensitive witness testimony, virtual hearings exacerbate the reality of in-person hearings, that the witness already has difficulty testifying and strangers will hear the testimony.

Julie Macfarlane in her recent NSRLP blog post does a superb job in raising the unintended consequences of rushing to implement and expand the use of technology once we no longer have an emergency — to make it the new “normal”. Some of these reflect concerns some of us have been talking about for some years now, others arise because, as Macfarlane says, “When it does embrace change, the legal profession tends to want to move rapidly to a new orthodoxy” and exhibits a reluctance to let this moment pass.

Here are some thoughts on how we should approach changing the legal system as it emerges from a time of (in some ways in the context of the legal system, at least) radical or potentially significant accommodations made in response to an emergency.

  • Why are we making whatever change will be made? What is meant to be accomplished?
  • Why is it “better” than what we were doing? And how is “better” defined (cheaper? more effective? more accessible? and more accessible to whom?)?
  • Who was disadvantaged by the “old” approach? Does the new approach remove or alleviate that disadvantage?
  • Are other potential users of the system disadvantaged by the new system when they weren’t before?
  • To the extent potential users are disadvantaged, are there ways to address the disadvantage? Are these ways better accomplished through the old system, the new system or some hybrid?
  • What measures will be developed to assess the appropriateness of when technology should predominate and, when applicable, when and how accommodations for those lacking adequate access to technology should be made.
  • (On the advantages and disadvantages that particularly affect self-represented litigants, see Macfarlane’s blog.)

  • How is the new approach integrated into the legal system as a whole; for example, if courts turn to remote hearings, how does that affect proceedings within the court system, lawyers, unrepresented litigants, witnesses, who can attend in person? (See Salyzyn on some of these questions particularly.)
  • How are important values (or values still considered to be important) affected by the turn to technology? Again, with on-line court proceedings, what about public access? One might argue that more people are able to tune into the remote hearing, if they know about it, than are able to attend an in-person court hearing and that few cases are actually discussed in the media. And this is true. But does the concept of “open courts” go beyond whether there is an audience in the courtroom or how big it is: does it have a more abstract value, “open justice”, based on transparency?

    Is there a difference between justice delivered in an open courtroom and justice delivered behind a computer screen?

  • What are the values integral to the legal or justice system and how will we measure enhancements of technology against them? And compare how well the values are met by existing approaches and approaches using enhanced technology?
  • What are the implications of lawyers and witnesses participating from their own locations and the judges from theirs (as Zoom hearings now)?
  • As with the use of any technology, what is the cost of maintaining its currency?
  • How are disruptions handled? Is there evidence that disruptions from technology are likely to be more or less than with respect to in-person proceedings (absent a pandemic, of course)?
  • Emergency measures may warrant overriding concerns that have been longstanding for a good reason. The examples above of virtual commissioning of affidavits and witnessing wills and powers of attorney illustrate this and the difficulty of doing so is equally illustrated by the different approaches in different jurisdictions. Does the balance between ease (and yes, cost) and protections against fraud, for example, remain the same post-emergency?
  • Does it make sense to consider that in some cases, at least, a hybrid system is more appropriate than a single system — not so much a reversion to “the old way” completely or a leap to accept and enhance “the new way” — but attention paid to when these approaches are beneficial on a variety of measures and whom they benefit and, equally importantly, whom they disadvantage?

    For example, in some cases, the usual way may be the norm, while allowance is made for carefully honed circumstances in which the use of technology might be appropriate. Although Bill 161 in Ontario treats commissioning of affidavits in the presence of the deponent as the norm, it contemplates virtual witnessing under certain circumstances (to be defined).

    Already, courts deal with some matters remotely and have for some time, to the advantage of those subject to them (see, for example, the “Protocol for the Use of Video Conferencing in the Court of Queen’s Bench for Saskatchewan” which long precedes COVID-19).

  • There is much excitement about “modernizing” the courts through an enhanced use of technology, including among judges, government and lawyers (for the situation in Ontario, see a story in The Globe and Mail here). This is not surprising. The notion of a traditional system and its demands are frustrating for some participants and difficult to deal with for others. In the latter case, for people trying the navigate the legal system themselves, problems lie less in the normal format of proceedings, but in the difficulties and complications of understanding the law and its procedural requirements. These may be better addressed through legal assistance than requiring some (or more) of them at least to struggle with yet another barrier.

    This does not mean the legal system should not welcome technological advancement: it does mean we need to consider the impact on all users and onf the system and on crucial justice values (which sometimes actually have practical import) as decisions are made about its use. The pandemic has moved the legal system along the technology continuum some distance, but it does not have to mean that we automatically assume emergency measures are always the best measures for normal times. It does mean, however, as it does in other sectors (universities and long-term care homes are just two examples), that we should be prepared for another great disruption: of course, if that turns out to be a lengthy loss of the internet for some reason, we could be back to square one.

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