Embracing Change…and Survival…

I Am Not Extinct
This Is Not My Extinction
Hopefully It Won’t For A Long Time For Now (now)
cuz’ I am not extinct oh oh Extinction ♫

Recorded by Avril Lavigne

Albert Einstein once said: “Problems cannot be solved by the same level of thinking that created them”. Accordingly, I am looking at the new court rules for British Columbia and the attempt to revamp the civil trial process with a heavy heart. Notwithstanding the effort and work that has been put into this process by many learned lawyers and jurists alike, it is my respectful opinion that ultimately, this is all for naught. I know that this is not going to be a popular opinion, but I think this effort, as well intentioned as it is, is aiming at the wrong goal.

I see members of the public that have a legal problem wanting not an improved trial process but rather an improved dispute resolution process. Lawyers, I believe, view these two as very much one and the same. But in my opinion, the public views these two issues as being distinctly different. It is this difference that will render these efforts to revamp the court process as being roughly equivalent to rearranging the deck chairs on the Titanic. Members of the public will be looking to different dispute resolution processes rather than trial. In fact, they are already looking outside of the current system for solutions. One of the most promising avenues lies in the Internet and the application of technology. The new rules, as laudatory as they may be, fail to embrace the change that has been occurring as a result of the Internet and technology.

I feel that I am not alone in these opinions. No less an authority than Richard Susskind has titled his latest book “The End of Lawyers”. In an article in The TimesOnline, Richard states as follows:

I call technologies that threaten the work of today’s lawyers and law firms “disruptive legal technologies”. They do not support or complement current legal practices. They challenge and replace them, in whole or in part.

This leads to the second part of my response to the non-believers. Most of the disruptive technologies that I identify — such as document assembly, personalised alerting, online dispute resolution, and open-sourcing — are phenomena of which most practising lawyers are only dimly aware. (Also bear in mind that my predictions are long-term predictions, stretching to 2016 and beyond.) If lawyers are barely conversant with today’s technologies, they have even less sense of how much progress in legal technology is likely in the coming 10 years.

I concur with Richard’s view and urge lawyers, judges and others in the legal system to embrace technology with a view towards not revamping the current system but rather looking at how technology can be used to not just try cases but rather resolve them. Internet technology has already demonstrated how it destroys traditional time-cost barriers (it is asynchronous — not requiring people to be present at the same point in time to conduct work; it eliminates the cost of transmitting information rather than physical media; it is available 24/7/365 rather than 10-12:30 and 2:00 – 4:00; and of course, it is fast).

Online dispute resolution is a fact. The effect that the Internet has had on other professions is a fact. Richard states: “Politely, it puzzles me profoundly that lawyers who know little about current and future technologies can be so confident about their inapplicability.”

I would call for a national conference on how technology can be embraced by the legal profession for the simple reason that I think this is the best chance to ensure our own survival.

This post first appeared in the CBA- BC’s Branch newsletter BarTalk, August 2009.

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