Legal Cheek reviews latest book offering from Professor Richard Susskind
One of the themes in Professor Richard Susskind’s latest book, Online Courts and the Future of Justice, is that we should transform our court system because it will improve access to justice, and that we should do so even if such transformation will be far from perfect.
Susskind argues for a radical rethink of court systems around the world because it could “help remove all manner of manifest injustices”. But his approach is pragmatic rather than ‘tech-topian’: online courts are a good idea because they are, in practical terms, useful, not because they will, by their very nature, solve the world’s problems. It is a refreshingly realistic viewpoint.
It is also the case that the change Susskind predicates is already happening: that even by the time you have finished reading the book, another example of online dispute resolution will have been launched, perhaps in Singapore, Australia or British Columbia. Even here in decrepit England, the HMCTS Digital Transformation Project is a thing. So in a way, this book, from the profession’s resident futurologist, becomes not so much an argument for change but a neat explainer for change that is already happening.
The vision that Susskind has is that court systems could be — and should be — radically, and digitally, transformed in order to save justice from the costly, complex and outdated service it is now. Starting from the premise that a court doesn’t have to be a physical space, first he suggests that we actually extend the current system by taking it ‘upstream’ so that someone with a problem or issue will enter an online court service right at the outset to work out whether or not they have a legitimate claim and whether that claim has any merit. To be clear, this process would not be fulfilled by a lawyer or even a case officer but would be done using digital pathways. This extended court: “assists users in turning an unstructured grievance into a recognisable, justiciable problem.”
Second, the court system would then contain that potential claim or dispute by offering either case officers or, over time, technology to facilitate its resolution (the success of eBay is cited here: its dispute resolution system resolves 60 million disagreements each year “without third party intervention”). This is not an alternative path but an embedded step in the court system.
Third and finally, if the dispute is not resolved, then it will need a judge. Under Susskind’s vision, this judge does not need to be in a courtroom, the parties don’t need to be present, and there doesn’t need to be a single hearing. This is how we arrive at online judging, where the hearing is “continuous” over a period of time, though we do, for now, still use a human judge.
Susskind makes it clear that he is focusing primarily on civil disputes not criminal justice, and on the more common low value disputes as opposed to complex, multi-party, multi-jurisdictional commercial cases. But if his vision is limited in one sense, it is also broad in another: he envisages that a blueprint online court system could be adopted globally in other jurisdictions where access to justice is also a significant challenge.
Online Courts, Susskind’s tenth book, which follows on from other prediction-filled publications such as The Future of Law and The End of Lawyers, is, of course, very readable. He interrogates the many issues that online justice raises such as how to ensure there is a distinction between code and law, the role and impact of artificial intelligence, and cites case studies from other countries, including China. He spends more than a quarter of the book pre-empting his critics by debunking the main objections to online courts (some of which, one suspects, are based on actual arguments he has had with individuals that he has worked with in his role as IT advisor to the judiciary).
Perhaps the concept of online courts would be more welcome than it is among the legal community if our current system was not so dire. It is hard to conceptualise a sparkling digital future when you are sitting in a courtroom with a leaking roof and WiFi that doesn’t work. Susskind makes comparisons between a well-funded digital justice system of the future (the HMCTS digital project has £1 billion at its disposal) with the decrepit courtrooms of the present: no wonder then that digital comes out on top. What if we compared what our current system would be like if it was properly invested in versus the online version of that? But Susskind, taking the pragmatic view, would argue that this is a utopian comparison because that is not a real choice anymore.
More than that, Susskind wants us to use this opportunity, this time of flux, to do something very different and potentially radical (always remembering that it doesn’t have to be perfect), that the legal profession and law schools “remain fundamentally 19th and 20th century institutions” which are “out of place and inadequate” in our new century.
There is a warning here too: if lawyers don’t read his book and get interested in, and get involved in, digital justice then they’ll miss that opportunity and they’ll be left behind.
Professor Richard Susskind OBE is the author of ten books about the future. His latest, Online Courts and the Future of Justice, is now available. He wrote his doctorate on AI and law at Oxford University in the mid-80s.
