By Natalie Anne Knowlton
A Tale of Two Technological Universes
Did you know that Elon Musk and Sam Altman are working to develop Artificial General Intelligence that could “maybe capture the light cone of all future value in the universe”?
Meanwhile, there are still some state court systems where hard copy paper forms, delivered to the courthouse by hand, in triplicate, uphill, in the snow, both ways, on horseback, between the hours of 9:30 and 4:30, is the only way to start a divorce.
The State of Technology in State Courts
If you’re unfamiliar with state court systems, you may think I’m being hyperbolic. I’m not. OK — maybe a bit. In either event, the landscape of technology in state courts is erratic, at best.
In some courts, “e-filing” is just becoming a thing. By e-filing, I mean the migration of court records from paper to digital format and the ability of court users (attorneys and those without) to file records electronically. This hardly seems like cutting-edge technology, right? Yet in some courts, this still isn’t a thing.
This example is not a one-off. There are some courts that don’t even have forms available online. I know this isn’t exactly a technology, per se, but the lack of accessibility is just too absurd to let slide.
The situation is particularly troublesome when you consider the ecosystem of digital tools (or lack thereof) that interface with people who do not have an attorney. Generally speaking, the current legal experience of these unrepresented litigants falls somewhere on the spectrum between bad and traumatic, so any potential improvements are worth noting.
Some of them, though, are offensive in their simplicity.
In 2017, my organization (IAALS, the Institute for the Advancement of the American Legal System at the University of Denver) compiled an inventory of then-available digital self-help tools in state courts. This led to the development of a maturity model which showed, among other things, that we’re all in trouble.
I’m only kind of kidding, because what the model honestly shows is that we have a long way to go.
At the bottom of the model, you’ll see simple things like making available forms and instructions. Next up, we hit simple things like websites (mobile optimized is merely a plus) and don’t forget also about simple and readily available things like chat functionality and video conferencing.
Wait a minute — are we actually advancing toward the more mature end of the model? That’s correct.
Another, more recent IAALS report sets out in detail some of these (again, simple) ways technology can be leveraged to improve the experience of people who don’t have an attorney.
Included among the solutions we highlight:
- allow users to participate in video conferences
- enable litigants to access court services using their smartphones
- enable people to receive automated text messages about their case status and deadlines
A personal favorite of mine is “enable customers to present photos, videos, and other information from their smartphones in the courtroom.” A prerequisite to this ground-breaking suggestion, of course, is allowing people into the courthouse with their phones in the first instance. But yet this issue is still up for debate in some places.
Source: tumblr.com
I suppose we can just wrap this conversation by concluding that the tech situation in state courts is challenging, at best.
Some courts are working on it. Some courts seem to be categorically not concerned about it, let alone working on it. Even the more advanced systems, though, are still about 10 years behind the trappings of modern life.
The issue is not entirely that courts are resistant to adopting sensible tech solutions (although some definitely are). A number of factors come into play (budget, antiquated procedures, lack of interest, budget, resistant bar associations, budget, budget) to create a reality that seems hostile to even incremental tech improvements.
Squirrel(!) Technology
Even in this environment, though, there are times when certain tech solutions take off in state courts. When this happens, we encounter new challenges that often come in the form of desperate scrambles to buy into whatever the newest trend is. Mind you, when you’re dealing with courts (and often government institutions more broadly), the newest trend is usually whatever was hot five to 10 years ago.
Take, for example, the latest Squirrel! in court technology and the thing catching on across state courts like a slow-burning campfire: online dispute resolution (ODR). Before I am perceived as shitting all over the ODR model, I’ll acknowledge that the benefits of moving court dispute resolution processes online are real.
- People can participate any time and not just during court operating hours, which is far more convenient and less costly than having to access the physical courthouse.
- The asynchronous communication model adds considerable flexibility and, in emotionally charged cases like divorce, this staging of communication can be the difference between a game-changing “I wish you were dead” jab during mediation and a more-tempered “I don’t quite agree with your suggestion.”
- ODR platforms (in theory and in design, at least) leave room for integration with court e-filing and case management systems and perhaps even more advanced self-help features like guided forms and real-time assistance.
- Self-help staff, mediators, judges, and other court personnel can engage with parties on a much quicker turnaround than with traditional processes — and even if they can’t, parties aren’t left in the waiting room of a self-help center or courtroom.
These are (arguably) serious improvements (for most people) over what many existing court systems provide, in terms of convenience, speed, and cost.
Yet, I have a concern about the growing ODR movement.
I’ve suggested, before, that we have some hard questions facing us with respect to the future of our formal dispute resolution institutions. This discussion is related to my concern with ODR in that, in many instances, what online dispute resolution platforms are doing is simply taking existing dispute resolution processes — or something very similar to the status quo — and making it available to parties online.
Golden Krishna is Head of Design Strategy, Platforms & Ecosystems at Google and has been called one of the “World’s Best Designers” by Fast Company. In “The Best Interface Is No Interface,” Krishna talks about the terribly ineffective and insidious practice of assuming that making a better product or service boils down to slapping a digital interface on it.
He argues that we (operative “we”) have become more preoccupied with creating mobile apps/digital interfaces than we have with actually solving the underlying problems these apps purport to address.
“[I]nstead of pursuing the best, most creative, inventive, and useful ways to solve a problem, we started solving problems with screens because that was our [UX] job description. When we saw problems, we slapped an interface on it.”
His hyperbolic exploration into how we have gone about making a better car (Slap an interface on it!) or a better trash can (Slap an interface on it!) got me thinking about how relevant his thesis is to our court systems, as we entertain (better late than never!) how digital tools interface with our formal systems of justice.
With ODR, what is the problem we’re trying to solve?
Is the underlying problem,really, that we need to digitize existing mediation and trial processes? Are current court procedures demonstrably efficient and effective such that we, without question, need to make them more widely available through an easy-to-access online platform?
If yes, then we have slapped a well-deserved interface on a well-designed process. Let’s give ourselves a well-earned pat on the back.
But if this isn’t really the underlying problem, which I would suggest it is not, then many of these ODR systems — stripped of their shiny digital interfaces — may be nothing more than sub-optimal processes that people can engage with in their pajamas.
And look, I admit: that’s still something! If I’m going to fight with my internet provider for an hour, I’d rather be comfortable on the couch than standing at a kiosk somewhere during work hours. The more important point, though, is that my strong preference is to simply have a router that doesn’t necessitate those kinds of conversations.
Similarly, people enmeshed in our justice system aren’t there to experience a centuries-old court process online, they are simply there to resolve their disputes. Full stop. This is a far more pressing underlying issue than digitizing our archaic processes.
A Well-Intentioned (Squirrel!) Distraction
By slapping a digital interface on these court dispute resolution processes without taking the opportunity to explore the “best, most creative, inventive, and useful way” to solve this problem, I worry we are creating a digital infrastructure that will more deeply formalize the processes that we already know to be problematic.
It seems we should be focusing at least some of our attention on asking whether establishing a digital infrastructure for existing processes will set our justice system and those who rely on it up for success years into the future. Because it’s not just about today or next year. What about 10 years from now? What about 40 years from now?
That is fundamentally what I hear Krishna talking about — designing now for longevity in the future. Phrased differently:
“The focus should be on building a system for the next 20 years, not responding to improvements that were necessary over the last 20 years.” — Tom Clarke, Redefining Case Management
Given the myriad conversations happening right now about how the current system is failing epic numbers of people on epic levels, it seems like an opportunistic time to be having this discussion.
Twenty years from now, are we going to want people to load their ODR app to navigate a still-complicated but now-digital court process? Or do we want to find truly scalable and seamless solutions to helping our neighbors, friends, and family resolve their disputes?
Let’s Slap Some More Thinking On It
This book has some really important lessons for those of us in justice communities as we proceed down the road of slapping a digital interface on most everything we can get our hands on. It’s worth a read. But you don’t need to read it to start having these conversations.
What are the underlying problems we are trying to solve and what might be the best, most creative, inventive, and useful ways to solve them?
Disclaimer: These are my views and do not represent those of my organization or any of our partners. I am solely responsible for my trouble making.
Natalie Anne Knowlton is a co-organizer of Denver Legal Hackers.
Follow Natalie on Twitter:@natalalleycat