Non-Expert Redesign of Justice
We often assume that reforms to the legal system should come from lawyers. After all, who knows and understands the system better than those who have studied and worked within it.
This past week I observed a process which fundamentally challenged that narrative. I served as a “Design Team Mentor” to the Winkler Institute’s Annual Justice Design Project. The program brought together a multidisciplinary team of undergraduate students who received a short primer on problems in the justice system.
The first day they heard about access to justice issues and how design thinking can be used to support innovation. The second day they explored online delivery systems to provide justice, and how to include empathy into design. They then visited the small claims court, to observe first hand the challenges that participants face, and returned to the workshop for the rest of the week to prototype a justice solution.
By the end of the week I was astonished to observe how these non-lawyers fundamentally understood the flaws in the justice system from the perspectives of the users, the members of the public that the system is intended to serve. I was left to conclude that it was specifically because they were coming from outside the legal system that they were able to examine it with fresh eyes.
The prototypes I saw on the final day ranged from a Pokemon-Go type game to educate the public, to an online dispute resolution system, and finally a small claims document exchange and file management app and system. All of these ideas directly addressed some of the significant gaps that we observe in civil litigation, and if implemented would provide substantial improvements.
These younger students brought with them technological sophistication that many lawyers and decision makers in the legal community still lack, as well as a sense of optimism and curiosity that had them thinking outside of the box, because they didn’t know where the box even was.
This is exactly the type of innovation that law needs, and what I’ve concluded now is that it may ultimately come from people other than lawyers.
Indeed: to someone with a programming background, an elegant chain of case citations and relevant decisions sounds suspiciously like a series of un-fixed bug reports (;-))
If you are impressed with the work of undergraduates doing a quick project, then imagine the capacity of people like them, fully credentialed and with years of experience, to achieve performance improvement. That describes Tracie Crook, who recently took McCarthy Tétrault through an organizational redesign that she wrote about here: http://iveybusinessjournal.com/law-re-order/, (and which you also wrote about, I recall).
Now, the direction that McCarthy Tétrault took may not be suitable for parts of the system other than law firms, and it may not even be suitable for all law firms, although there is much of universal interest to be learned from the process. I have been interested to learn a bit lately about why law firms evolved as they did, noting the degree to which joint ownership of libraries, including case law and subscriptions, may have been a factor. Also the extent to which law was class-based in the British tradition in which our system has its roots. I saw a tweet the other day about maintaining privilege being one of the goals of the law society in the UK. Under the rubric of Access-to-Justice, however, correctly understanding the roots of privilege, exclusivity, hierarchy, etc would seem more productive to me.
Rather than saying expert and non-expert, therefore, I think the more useful distinction is between subject-matter expert and systems design expert. As I wrote in one of my own blog posts recently, subject matter experts are prone to being offended at the idea that they themselves might not be the best authorities on the systems in which they work, and yet the fact that their systems have evolved in problematic directions leads to exactly that conclusion. The reason is that subject-matter experts invariably solve problems by adding more subject-matter experts. This works to a point, but eventually leads to inexorable growth of bureaucracy or “apparatus” and a condition of provider-capture. More subject-matter expert input is never going to solve either of those problems, because giving up control does not come naturally.
And that, I think, is the key distinction between optimistic undergraduates and seasoned organization/system design professionals. The latter will, in addition to designing solutions, also recognize the barriers to implementing obvious solutions and work at a deeper level to address and give direction to the needs that created the problematic system in the first place.
“Rather than saying expert and non-expert, therefore, I think the more useful distinction is between subject-matter expert and systems design expert.”
A very useful distinction. However for certain business situations stakeholders have to clearly define 2 different types of “systems design experts”:
1. Legal System expert : lawyers, etc.
2. Technical design expert: building technology expert: The technical design expert needs to stay as technical/the mechanic for building/improving the piping system. Too often they like to position themselves as the business process expert (after gathering requirements). It is helpful to have lawyers with formal business non-legal processes who can focus on business strategy, useful outcomes within improved timeframe and cost.
Subject matter specialists: are both lawyers and general public.
I should have added perhaps one more sentence to my response to clarify that the two types of expert need to work together, but my key point was that different types of expertise are required and should be equally valued – let’s say like an architect designing a courthouse.
But what you have conflated in your response, Jean, if I understand it correctly, is corporations, industries, and systems, as well as private and public realms. A system problem is not automatically a business situation, although there may be businesses within a system, and a business alone is not a system. And stakeholders are not necessarily in a position to selectively patronize experts; rather, they patronize as a whole the system that results from their work. And again as I’ve said on my blog (http://ctjester.blogspot.ca/2016/08/paradoxical-recipe-for-change-stick-to.html), in a system, some stakeholders (eg taxpayers) are not even system users.
Maybe the nature of the necessary expertise is best illustrated from the perspective of the law itself: a lawyer representing – say – an engineer or engineering firm does not have to be an engineer. The best lawyer for the case may actually be one who understands the least about engineering, and the most about the necessary point of law. The engineers may not even understand at all the legal issues involved in representing their case. BUT it is unlikely that the lawyer can represent the engineers without understanding at least some technical engineering issues. And that is one reason too for the complexity of the job we assign to judges, and why the court itself may require an engineering expert. Both types of expertise are necessary for the situation to be resolved.
I think what I keep hoping is that conversations about law reform can be more productive than the conversations I’ve been engaged in for 20 years about education reform. In order to be more productive, the law will have to do what education has never achieved: overcome its natural insularity, hubris, and defensiveness.
Sorry to be blunt, and that isn’t directed at any person in particular, but it is a natural characteristic of the subject-matter experts around whose work a system is built.
Agree with all you have said. The client at the heart of the “system” is also the subject matter expert: about their own problem. No matter, how limited they may be about expressing their problem, they experience the symptoms and solution/end result.
Before we become patronizing about the “client”, to think of another system which all of us are members as subject matter experts for a personal problem:
Within the health care system, we feel “expert” about our own symptoms. But there is a different funding model which allows patient entry to their first expert to diagnose / solve our personal medical problem. Barriers might only be time scheduling, location, communication problems, etc.
(Recently I was unimpressed when I received advertising for a private small legal services firm –actually just down street from home. Went to website. No list of service staff at all. Would a mortar and brick medical facility ever be like this? As SME-public member, I decided not to waste my time.) Was I too flippant ignorant as a consumer? No. The legal system should want SME-consumer : minimally informed to make good decision at right time without exhausting a bank account.
What might have improved (abit) is the latest Internet legal information, as starting point, provided by government departments to educate their citizens on how to understand in simple practical ways about legislation that could affect them personally and preventive action, which the govn’t dept. has direct authority to administer.
However not a huge majority are always self-directed, appropriately literate nor always believe the correct sources of information. (A different type of problem.)