Dr Clare Jones is a Senior Law Lecturer at The Open University, and a member of the LIFT (Law, Information, Future, Technology) research cluster @OU_LIFT
The current pandemic has forced a lot of people to change patterns of behaviour and how normal activities are approached and carried out. In normal circumstances, change in the legal system is often cumbersome and slow, often reactive, rather than progressive in nature. However, overnight, the archaic legal system and its actors had to adapt quickly to the new way of life we saw thrust upon us. Technology has had to be embraced, although not always warmly, to get normal legal functions performed. To maintain some form of legal system and structure, people have had to think about changing historic practices. The law is often thought of as an immovable beast, yet Covid-19 overnight pushed the technological and digital agenda to the forefront of people’s minds. The often conservative and static legal profession has been forced to change and consider the future.
In a welcome change of thinking from someone inside the legal hierarchy, Sir Geoffrey Vos, Chancellor of the High Court of England and Wales, addressed Harvard Law School on 25 November and posed a very interesting and progressive proposition to law students. He started a conversation about how we in the legal profession can do things differently, and not just differently because the task is carried out online but by rethinking the whole problem altogether. Something which is progressive and normally unheard of.
The proposition, in short, was how can technology be used to deal with the increasingly complex and data centric commercial and civil disputes that arise every day in their thousands. Sir Vos argued that the current iteration of the common law system of dispute resolution has been around since its inception in the 19th century and is not standing up to the modern-day forms of dispute, nor the backdrop of the digital age. The problem Sir Vos is highlighting is that with the advent of massive sets of data, blockchains, smart technology, and artificial intelligence entering the disputes, the dispute resolution system is ‘not fit for purpose’. His proposed approach would see an upheaval of thinking and practice with our judiciary, lawyers and a cultural shift in expectation from society towards disputes. His approach is three-fold – firstly, to emphasise the ‘resolution’, not the dispute; secondly, to not replicate digitally what has traditionally been done; and thirdly, the approach should be holistic.
His vision sees a system whereby all disputes are entered into the system online and are dealt with in the same way. The emphasis is on the resolution, which can be achieved at any stage. The importance is placed on resolving the dispute quickly, with minimal cost and less amount of stress. Here technology would be used to create a data set from the digitally entered documents which would be able to determine which resolution route would be a best fit for the dispute in question. Setting aside the practicalities of achieving this, the more pressing counter theoretical question, to the advent of change, is over the discretion automated technologies such as AI or, in the future, quantum computing, can have over this subjective decision-making task. His vision sees a system that can adapt to the international context of modern-day living where contracts and disputes often have no defined legal jurisdictional boundaries but rather span multi-jurisdictions. He sees technology as a means of encapsulating the expanse of data across these jurisdictions to find the pertinent legal element of dispute and point to a reasonable resolution.
Again, the question of what is reasonable and whether automated technology can be trained to make value decisions as to what is best comes in here. There are many permutations as to the logic and decision tree that technology could use to push disputes down different routes for resolution. Although Covid-19 has pushed society and systems into pursing different routes to achieve the same aim, the legal and theoretical brain of society has now started to question the philosophical and reasonableness of using technological developments. The ambit of change could be thwarted by the discourse of intellect. However, Sir Vos is right to outline radical reformative changes moving away from static practices and to use the negativity of Covid-19 for a positive reason. Society needs to find positives in this pandemic.
Sir Vos is clear that a new system cannot just digitalise the current system. The 20th century has seen a flux of document reproduction and complex disputes can have thousands of documents pertaining to the dispute. Yet, once in court, often this mass of complex documents is boiled down into one or two important yet complex parts of the law. Again, using technology to be able to determine and assess the data, as Sir Vos proposed, could streamline the system. He argues that the volume of documentation that are used within the current model for dispute resolution depreciates access to justice and the rule of law. The counter argument to this is the questionable status of whether AI should be delivering justice and whether it can adhere to the rule of law without the subjective and moral guidance of the human being.
The pandemic has forced many dispute resolution hearings to be held via video conferencing platforms but this is not a solution. Rather it is a replication of the current system. However, it has made judges and lawyers alike, question the art of the possible in order to get the job done and many now do not want to go back to the face-to-face hearings of the past. Practices have been forced to evolve and it is the perfect time to forge a new system.
Sir Vos did not go as far as to say traditional hearings will be a thing of the past. He specifically stated there is a time and place for face-to-face court hearings but that for a large proportion of disputes an online system could provide resolutions, more efficiently. His cautionary tale means that lawyers of the future will need to be progressive and technologically savvy without resting on the traditional and historical laurels of the past. Yet lawyers of the future will have to have this mindset and philosophy if they are to succeed in practice. Digital society is moving towards a more digital form of justice and legal system. With the advances in blockchains, smart contracts and big data, lawyers will have to understand technological developments and adapt quickly and efficiently, as well as being well versed in legal practice doctrines.