A Canadian A2J Technology Deficit?

With all the excitement of a cosplay buff just ahead of Comic-Con, I anxiously awaited the Law via the Internet conference held in early October at Cornell University in picturesque Ithaca, NY. The 3 day event included the annual get together of the Free Access to Law Movement, CanLII’s peer group from around the world, as well as 30+ papers, presentations and panel discussions from a highly varied cross-section of legal information innovators. Sporting attire appropriate to the occasion (I went with a look that screamed I’d-prefer-to-dress-like-I-have-tenure-but-I-just-came-from-a-grant-request-meeting) I took it all in with a mix of delight and dissatisfaction.

On the positive side, in every session I attended and in every video replay I watched a couple weeks later I found great inspiration in the ideas and actions of the presenters. Indeed, I even drew ideas from watching my own presentation – henceforth I will no longer turn my head to the right when presenting as my left-side bald spot gives off a nasty glare on camera.

That’s a great idea! Let’s form a committee to study it!

On the negative side, so many of the projects described and ideas advanced are easily achievable within the competencies of Canadian legal information professionals but (at least to my knowledge) are largely absent, or at the very least, well below the radar. Is the Canadian propensity to place undue faith in “studies” and “blue ribbon panels” part of the reason?

In both form and substance, the LexisNexis e-book “Educating the digital lawyer” captures brilliantly the basis of my dissatisfaction. I dove right into this text immediately upon learning about it through Connie Crosby’s mid-November Slaw post and, just as at the LVI2012 conference, I was presented with an extensive array of public interest and commercially savvy digital innovations that are entirely within reach of talented Canadian developers but not yet widely prevalent. To be fair, there are lots of great initiatives underway in Canada, but, as William Gibson might say, the digital legal information future is already here, it’s just not widely distributed.

The different levels of sophistication were evident at the recent (and excellent) Canadian Forum on Court Technology conference and a glance at “Report of the Subcommittee on Global Review of the Federal Court Rules” shows the commitment to “further study” is alive and well. See, for example, Recommendation 24:

If the Rules Committee accepts some or all of the recommendations in this report, it should establish a new subcommittee to examine implementation issues.

What are we waiting for?

It is not my intent to be dismissive of courts and the proper exercise of due diligence in overseeing and driving change in the administration of justice. No, my dissatisfaction is reserved for the rest of us and our collective lack of imagination in working within the system more efficiently irrespective of the system’s rate of change. As examples in the LVI2012 presentations and in the LexisNexis e-book demonstrate, we don’t have to wait until everyone else is ready. Here are two innovations, each of which were featured in both fora, that could easily be adapted to the Canadian context or could inspire made-in-Canada innovations.

A2J Author

Developed by CALI, in association with Chicago-Kent College of Law, this freely available tool permits the creation by legal aid attorneys, courts other of “self-guided A2J interviews for use by unrepresented litigants and others in need […that] walk users through a step-by-step question and answer process, which, in the end, creates an (often otherwise confusing) legal form.” This tool, currently running over 600 active interviews from dozens of organizations – including some Canadian ones – was also discussed by presenters at the Canadian court technology conference.

Consequences Calculator

Developed by Columbia Law School, this free tool aids in “legal research for judges, attorneys and legal academics” to demonstrate what happens following conviction under sections of the New York Penal Law. With point and click simplicity, “once you’ve selected a charge, the [immigration and social housing eligibility] consequences of that charge will appear in a three column break-down on the right that reflects the probability that a consequence will attach to a conviction.”

Understanding law is hard, but following process shouldn’t be

So what’s my point?

Quite simply, small technology projects can have big impacts and we don’t have to look very far to identify the problems or the tools that would help.

In a recent Federal Court ruling, the Honourable Mr. Justice Hughes, himself a member of the aforementioned subcommittee, refused a request from the defendant (Her Majesty the Queen) to strike a Statement of Claim, and instead granted the plaintiffs (5 self-represented prisoners in a federal penitentiary) a 6-month stay to, among other things, “secure competent legal counsel”. Justice Hughes noted that despite the evident legal research effort undertaken by the plaintiffs in bringing their action, the pleadings were deficient in nearly all respects and it was not even clear that the grievances outlined in the claim were a proper matter for consideration by the courts. At paragraph 7, Justice Hughes observes as follows:

[… ]Legal training involves more than just reading materials and copying from precedents. It requires a thorough knowledge of the law and how it is practised, and the exercise of experienced judgment in determining, for instance, whether a claim should be made to the Courts or to some other person or tribunal; how that claim fits within the principles of law; and how that claim is to be set forth properly in the relevant documents in which a claim is submitted. While many people can wield a knife, not all are surgeons. While many people can read Rules of Practice and legal texts, not all are barristers or solicitors. It takes not only knowledge, but thorough knowledge, exercised through experienced judgment to get it right.

Continuing at paragraph 11:

[…] What [the pleadings] must set forth are:

• the precise circumstances at issue: the who, what, when and where relevant events leading to the complaint took place
• the resulting effect
• the standard required by law
• the manner in which those circumstances failed to live up to the standards required by law
• what harm resulted

While many Canadian courts and public legal education organizations provide precisely this manner of guidance to self-represented litigants in a variety of formats, are any using an A2J Author or similar interview-style document developer to do so? If not, how difficult would it be to take the above 2 paragraphs of guidance offered by Justice Hughes and build an A2J interview that spits out a Rules-compliant Statement of Claim? Not very, and although the interview itself cannot define the “standard required by law”, it can very clearly focus the attention of the self-rep litigant on the issue at an appropriate juncture.

If the plaintiffs had the benefit of the right tool to develop their pleadings, would the Federal Court be waiting on a third iteration of a Statement of Claim? What savings in time, resources and funding would accrue to the parties and to the system if simple tools were deployed early in the process?

Even if you can’t fix it all, you can still make it easier

A final take-away from LVI2012 comes courtesy of Ed Walters, CEO of U.S. legal publisher Fastcase. Ed reminds us that each player in the legal information or education realm brings content, a service, a product, an expertise or something upon which others can enhance and add value.

No single entity or group can serve all needs or solve all problems, so collaboration and empowerment are key. Over the coming months, CanLII hopes to develop capabilities and services that will facilitate and spur third-party innovation. What excites us most is knowing that so many others are ready to explore new ways of solving old problems that we can’t begin to anticipate the range of innovation to come.

I have every expectation that 2013 will be the year Canada erases the A2J technology deficit.