The Future of Justice in a COVID-19 World

I wrote this column and submitted it to Slaw on March 6, back when we didn’t know how good we had it. I’m writing this new prologue on March 17, with much of Canada and the world effectively in lockdown because of COVID-19.

I thought about rewriting the column to reflect our new reality. Instead, I’m adding a frame around it, because I think the column still stands on its own merits. But COVID-19 and our societal responses to it are in the process of crushing our slow, creaky, in-person justice system, and the lessons here about human-centred design are suddenly far more urgent.

Much more in the epilogue. First, here’s my original column.

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You’ve heard of British Columbia’s Civil Resolution Tribunal (CRT), right? In the unlikely event you haven’t, here’s its website, here’s a great description by Prof. Bill Henderson, and here’s why it was in the news last month.

The CRT is the world’s most effective legal system innovation. I can say this because the CRT consistently asks it users what they think of it, and it publishes the overwhelmingly positive results every month.

In February 2020, 80% of surveyed users said they’d recommend the CRT process to others. What percentage of people who’ve used the court system would recommend it, do you suppose? What percentage would ever willingly enter a courthouse again?

That comparison is appropriate because the CRT does not involve courts or judges, and discourages the use of lawyers. When the CRT was first proposed way back in 2012, some Slaw commenters criticized the idea of removing lawyers and judges from the dispute resolution process. I disagreed. “Reducing access to a lawyer is not a bug; it’s a feature,” I wrote. And I think that still holds true.

But the point of the CRT is not to eliminate lawyers and judges from the DR process. The point of the CRT is not even to create an online resolution tribunal at all.

The point, as I was reminded by CRT Chair Shannon Salter in a conversation at ABA TECHSHOW in Chicago last month, is to use a human-centred design process to create a human-centred DR system.

It doesn’t need to be a CRT. It could be anything at all, so long as it was designed to meet the real needs experienced and expressed by real people who were respectfully asked their opinion and whose responses received genuine attention.

One of my favourite CRT anecdotes comes from Bill Henderson’s article:

At the CRT, prototype forms are first presented to community advocates who represent vulnerable populations (those with language barriers, physical or mental disabilities, the working poor, etc). “We get those folks to beat up everything we design …. We’ll have them in a screen share with our user experience person, who is coding changes in real time.”

The output of these sessions is then tested with the public. After those changes are made, “we test with lawyers — because it’s held true that if something works for everybody else, it’ll work just fine for lawyers.”

There aren’t enough bold and underline highlights on my computer to express how important that last phrase is.

Look at what the CRT does: It starts its design process by going to the people who have the greatest challenges accessing the justice system and online services. It asks them: “What do you need? How this should this be designed? Help us to understand. Correct us when we get it wrong.”

Because if the system works for people with language and disability barriers, it will work for people without them. And if it works for all these people, it will work for lawyers and judges.

Our justice system is designed in exactly the opposite fashion. It is set up for judges and lawyers, and for nobody else. The opinions and experiences of people outside the justice professions are not sought out, because they are of zero interest.

This is the real breakthrough of the CRT. It is an entire system designed from Day One to serve the people who need disputes resolved, not the people who are paid to resolve them.

Before my conversation with Shannon, I had wondered: Why doesn’t every Canadian province and territory have a CRT? The model is fully developed and completely available for anyone to copy. It is scalable and affordable. It reduces costs and shortens court backlogs. It is proven and highly rated by its users. If we had prayed for a dispute resolution system to rain down from Heaven like manna, the CRT would have shown up on the ground the next morning.

Now I think I understand why the CRT has not inspired a rush of imitators —- because lawyers and judges cannot give up being the centre of the justice system. They cannot bear the idea that the law should be about somebody other than them and someplace other than courthouses and law offices. It violates their sense of identity and their place in the world.

Here, I think, we’ve reached the very core of the problem with legal system reform. Lawyers and judges still insist on directing and controlling the justice system from their perspectives and according to their priorities. So long as we do that, we will never achieve true access to justice. We will only achieve access to lawyers and access to judges and access to courts, and that is not the same thing as access to justice.

We need a justice system based on human-centred design and human-experienced execution. We have to ask people what they need, provide it, ask them how we did, listen to them, improve our efforts, ask again, and repeat, over and over. The CRT has shown us how to do this, and how well it works.

Will we do this? If not, why not? If so, when?

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Here are a few headlines from a quick Google News search on the morning of March 17:

• “Courts across Canada restrict access or suspend operations due to COVID-19”
• “Quebec courthouses suspend regular activities”
• “Coronavirus: Alberta courts limit hearings to urgent matters”
• “London (ON) courthouse closed after staff member tests positive for COVID-19″
• “Courts ill-equipped for pandemic and long-term closures”

Our justice system is absolutely incompatible with social distancing and self-isolation. The system requires people to leave where they are and come to where the judge or tribunal chair is, and to stay there, in close quarters with complete strangers, for hours at a time. Most courts don’t have e-justice practices or infrastructure. Most judges won’t hear of such things in their courtrooms. Most lawyers have neither the skills nor the motivation to press for them.

Two weeks ago, this was business as usual. Today, it’s a potentially life-threatening practice that governments are in the process of outlawing indefinitely.

This report from the Imperial College of London, which is now driving policy decisions in the UK and the US, recommends hard-line suppression tactics — including “a combination of social distancing of the entire population, home isolation of cases and household quarantine of their family members … [potentially] supplemented by school and university closures” — for five months. Probably longer.

The justice system as we know it is not going to survive what’s coming.

If you care about justice and the rule of law — and I know that you do — please start thinking right now, as fast and as thoroughly as you can, how to deliver affordable, accessible, scalable, and fair justice in a world like this. The Civil Resolution Tribunal has started this process for us. Now we need to take the next steps, and we need to take them immediately.

“Watching an entire (archaic) education system step up and go online and on video in just a few days after refusing to do so for a decade or more makes me rethink the whole ‘change is hard and slow,’” wrote Nir Golan (@lawheroez) on Twitter yesterday. “Change is hard and slow until push comes to shove and you just have no choice.”