In British Columbia, barriers related to cost, language, education and physical location have fallen to the wayside.
Several years ago, if someone asked me how to solve the U.S. access to justice problem, I would have replied, “more government funding, more generous philanthropy, and more pro bono hours from lawyers.” With these greater inputs, a lawyer would be available to every citizen needing to access the legal system. Almost as a reflex, I suspect a large number of my lawyer peers would have given the same answer.
But what’s the likelihood of a 5x or 6x increase in resources? Cf. Legal Services Corporation, “2017 Justice Gap” at 6 (June 2017) (reporting that “86% of the civil legal problems reported by low-income Americans in the past year received inadequate or no legal help.”). I’d put it at close to zero.
Today, I am much more hopeful about our ability to substantially solve access to justice. But it’s likely going to involve a massive redesign of how many types of disputes get resolved, including the possibility of lawyers and courtrooms being engineered out the process. I say this based upon what I have learned about the Civil Resolution Tribunal (CRT), Canada’s first online dispute resolution (ODR) system. The graphic above is a screenshot of the CRT’s homepage, which also describes the tribunal’s current jurisdiction.
Civil Resolution Tribunal (CRT)
Last month, the ABA Center on Professional Responsibility held its annual meeting in Vancouver, British Columbia. The conference kicked off with a keynote presentation by Shannon Salter, the Chair of the CRT, which is the mandatory forum in British Columbia for resolving small claims (<$5,000), condominium disputes, and motor vehicle accidents with less than $50,000 in damages.
As one of the organizers of this opening session, I encouraged my colleagues to take full advantage of the Vancouver location and let the Chair of the CRT share details on one of the world’s most advanced government-run ODR programs. The suggested format was pretty simple: Have Salter walk through a slide deck showing the design and structure of the CRT, including some of its key operating metrics. After that, have her take 40 minutes of questions from a 300-person audience of mostly U.S. lawyers, judges and academics.
This post is a summary of the key themes from the session. I want to make sure, however, not to bury the lede. All of society, including lawyers, want to solve the access to justice problem. But what if a solution that worked well for ordinary citizens was based upon new dispute resolution processes that made traditional courtroom practice redundant (albeit some new types of legal service jobs would be created, just as Richard Susskind predicted)? Can the legal profession get onboard?
Where did the CRT come from?
The CRT is a newly formed government body created pursuant to the Civil Resolution Tribunal Act, which passed the British Columbia legislature in 2012. According to Salter, a more right-leaning government passed the original law. Since then, a more left-leaning government has expanded the CRT’s jurisdiction to include a wider array of disputes. Thus, according to Salter, the appeal of the CRT “transcends left/right politics.”
Salter did acknowledge, however, that the original driving force for the Civil Resolution Tribunal Act came from strata (i.e., condominium) owners, which accounts for approximately 50% of British Columbia’s homeownership. Prior to the CRT, the only forum for resolving disputes between two condo neighbors, or a condo member and its governing board, was to file a complaint in superior court in British Columbia, which is one level above the provincial court and one ill-equipped to handle self-represented parties.
Salter tells the audience, “So, somebody who is irritated because their neighbor’s dog is yapping incessantly, and the condo board isn’t doing anything about it, their legal remedy was to take that dispute—not to the provincial court but to the superior court in BC, at a tremendous cost and peak complexity.”
Condo owners, of course, are an affluent, well-educated, and “very vocal” constituency. Thus, BC elected officials were inclined to accommodate their wishes. In turn, some innovative folks at the Ministry of Justice in Victoria (the BC capital) viewed the challenges of strata owners as an opportunity to try something fundamentally different. Thus, the strata issues were bundled together with challenges related to small claims. According to Salter, “[These types of disputes] are important to people who have them. But nobody’s losing their kids, nobody’s going to prison … Thus, it was a really good environment to be able to learn and test and work with the stakeholders who did not hesitate to tell us if we got it wrong. … It was an odd confluence of the right personalities, the right kind of issue type, at the right time.”
At the CRT, the online dispute resolution process begins by hitting the “explore & reply” button on the CRT website. This takes you to a getting started page where you can review the type of legal problems handled by the CRT. Currently there are four categories:
- Motor vehicle accidents and injuries
- Strata (owners/tenants and strata council)
- Small claims
- Societies and Co-operatives
From this “getting started” page, you can click on the icon that appears to fit your problem. This, in turn, launches the CRT’s Solution Explorer, which uses a simple (6th-grade reading level) question and answer format to guide users to tailored, plain language legal information, as well as free self-help tools to resolve their dispute. All of this is driven by basic rules-based expert system technology (think TurboTax) that has been around for several decades.
Salter’s presentation included several screenshots of Solution Explorer content, including the ones below, which deal with motor vehicle accidents.
In this Solutions Explorer session, the left side contains a progress bar for questions answered versus questions remaining. It also contains a running list of answers (“1. I’m not an insurance adjuster,” “2. I’ve reported the accident to the insurer,” … ) and links to potentially useful resources. On the right side is the current question being asked.
Note that the Solution Explorer is 100% anonymous. Session information is stored and retrievable via an access code, which is generated at the very beginning of the session and visible throughout. See top-left corner above. Thus, anyone in the world is free to navigate this content anonymously.
In a case where the user wants compensation for a motor vehicle accident, the CRT provides a worksheet to calculate damages.
Note that each educational resource includes an opportunity for the user to rate it on a familiar 5-star scale. In addition, each resource page contains a red “Not helpful” button. Salter and her staff use these metrics to continuously improve the content, always starting with the areas that are getting the lowest marks from users.
Following the worksheet, one self-help option might be a template-driven letter that enables someone in a car accident to clearly communicate what they want from the insurer. Below is an example template from Salter’s presentation:
According to Salter, the CRT’s template-driven letters are “massively popular,” as “people really struggle with writing formal letters. … Giving them the language, giving them the statutory references is really, really helpful.”
Based upon system metrics, the CRT’s online education and self-help tools appear to be doing most of the work. Of nearly 68,000 Solution Explorations to date, only 11,000 have resulted in the user completing an application for dispute resolution (~16%), which is the equivalent of filing a formal complaint. It is at this point in the process that the user provides personal information, identifies the other party, and pays an initial fee (or seamlessly applies for a fee waiver). Below is a screenshot from Salter’s presentation that shows the application page. Suffice it to say, it is not very confusing.
After the user completes the application and pays the required fee, the CRT handles the equivalent of service of process on the opposing party, thus eliminating a huge area of complexity for someone with no legal training. In most cases, the notified party enters the CRT system by hitting the Respond to a Dispute button on the CRT homepage, which is right next to the Explore & Apply button.
Steps 2, 3, and 4
As show in the slide below, the CRT provides a four-step process for resolving disputes, of which the Solution Explorer (Step 1) handles the most volume (~84%) and involves the highest level of automation.
During the Q&A session, Salter was asked how the CRT handles rude or hostile exchanges among the parties. Salter replied that the non-anonymous party-to-party negotiations tends to be much less harsh than anonymous online forums. However, in response to abusive or disrespectful conduct, either side can hit a “report abuse button,” which shuts the platform down until a meditator (Step 3) can step in. The CRT is also experimenting with AI technology that analyzes texts and prompts the user with something like, “[your reply] sounds pretty hostile. Are you sure you want to phrase it this way?”
According to Salter, Step 3 is where the CRT expends the vast majority of its staff time. “That’s where one of our staff mediators works with the parties through whatever communication method they prefer [phone, email, texting, chat] to help them reach an agreement.” As the Chair of the CRT, Salter’s philosophy is that consensual resolution tends to be far more enduring and acceptable to the parties than an adjudicated outcome. Thus, users are required to participate in good faith, and staff meditators are empowered to set deadlines and require the production of documents. If a party refuses or fails to meet a deadline, the meditator can ask the presiding Tribunal Member (the CRT equivalent of a judge, who handles all disputes that reach Step 4), to issue an noncompliance order, which “can have pretty significant consequences” to the party who is resisting the process.
During her presentation, Salter described Step 4 as “the least innovative” part of the process, as this is where “administrative law and the weight of the common law is brought to bear and it looks much more like a traditional adjudicative process.” The cases are decided by one of 14 full-time and roughly two dozen part-time Tribunal Members. Most of these cases are resolved based upon the written record, although some involve oral testimony by the parties, other witnesses, and the uploading and presentation of evidence using a smartphone-friendly technology similar to Zoom, Skype, or Facebook. All Step 4 cases end with a written decision, which is immediately posted on the CRT website. See CRT Decisions webpage. These decisions are judicially enforceable. Further, similar to any trial level outcome, CRT decisions are subject to appellate review.
The CRT is a remarkably transparent and metrics-driven organization. Every month, the CRT publishes data on user volume and user satisfaction. Salter’s presentation included the screenshot below, which is a report that appears monthly on the CRT Blog (and which Salter faithfully pushes out via social media):
Assume for a moment that state courts in the U.S. regularly captured user satisfaction data. Would any state court come close to these statistics? A 2015 report by the National Center for State Court (NCSC) surveyed ten large urban jurisdictions, including those in Chicago, Miami, Houston, Phoenix, San Jose, and Bergen County, New Jersey (part of Greater New York). See Post 006; Post 037. What it found was a system in meltdown, with high costs, bewildering complexity, chronic delay, and 75% of all cases involving at least one self-represented litigant. The NCSC report concludes that the only way to fix the system is through “dramatic changes in court operations … to control costs, reduce delays, and improve litigant’s experiences with the civil justice system.” The Landscape of Civil Litigation in State Courts at 38 (NCSC 2015).
Well, we no longer have to dream what an alternative might look like. And tellingly, it does not include lawyers.
Throughout the U.S., there are several ODR pilot programs. Arguably the most advanced and ambitious is now taking place in Utah under the leadership of the Utah Supreme Court. See Small Claims Dispute Resolution Pilot Project (ODR -West Valley City); see also Deno Himonas, “Utah’s Online Dispute Resolution Program,” 122 Dick. L. Rev. 875 (2018) (Utah Supreme Court Justice providing extensive overview of Utah’s ODR program). During the Q&A, Shannon Salter praised Utah’s efforts and acknowledged that she had donated time as a pro bono consultant.
Design is more important than technology
Although the CRT may look very tech-driven, Salter opened her remarks by emphasizing that CRT’s success is entirely rooted in human-centered design and that the technology has proven to be least challenging part of the initiative. In contrast, the challenging part was the culture shift among lawyers and legal professionals so that every aspect of the new system would be accessible and useful to British Columbia’s most vulnerable populations.
What does this look like? It starts by spending time with the users of the system so you can ask them, “When did this problem happen? How much time and money have they spent so far? Who’s helped you along the way?” In this effort to see the world through the eyes the person inside the system, the system designers “take a clipboard and get the users to fill out our forms–see where they stumble.”
On the topic of forms, Salter points out the purpose of the Solution Explorer is to uncover the user’s legal issue so they can be delivered to the correct form. After that, “we lead them through a very paint-by-numbers process” for filling it in. Salter describes poorly designed forms as an enormous access to justice issue. Specifically, forms are a problem because none of them “are actually user-tested or co-designed with the public.” Instead, “they’re typically designed to meet the needs of the justice actor [i.e., the lawyers, judges, and staff].”
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.”
A basic rule of thumb for Salter and her team is that 1 in 100 events are not covered by forms. Thus, the system stays simple and works in a low-touch way for 99% of cases. For the remaining 1%, Salter is happy to expend staff time to work out high-touch solutions.
Aside from forms, the community outreach by Salter and her team uncovered a variety of simple things that could have been fixed quickly and inexpensively if anyone from the court system had ever bothered to ask. For example, “Can you make sure your staff has cultural competency training?” or “Can you make sure that they’re trained on how to deal with people with mental health issues?” or “Can you give the phone number of somebody with decision-making authority who can who can troubleshoot situations where a client is falling through the cracks or getting stuck in some technology vortex?”
To better understand Salter’s terminology, I did some research to untangle human-centered design from design-thinking principles, which are now common among lawyers who focus on innovation. Below is a diagram (from Cole Hoover of the MovingWorlds Institute) that combines the five steps of design thinking (empathize, define, ideate, prototype, test) with the three steps of human-centered design (inspiration, ideation, implementation):
According to Hoover, the goal of design thinking is adoption. In contrast, the goal of human-centered design is “to ensure that the solution actually improves the lives of those it was designed for.” Cole Hoover, “Human-Centered Design vs. Design-Thinking: How They’re Different and How to Use Them Together to Create Lasting Change,” MovingWorld Blog, Oct. 4, 2018. Indeed, that was the message that Salter was channeling throughout her presentation.
Regarding technology, Salter confessed that in the early days, the CRT was a bit of a Potemkin village, as there was no more tech than a website and several Excel spreadsheets. Since then, the CRT has contracted with the PwC to build the online platform, which the CRT owns. Although the CRT could (and might) license its software, Salter is clear that the real work is in organizing, simplifying, and communicating local law. And that’s a matter of low-tech design.
Car wrecks, access to justice, lawyer income
More than anything else, what got the U.S. lawyers’ attention was the fact that CRT’s jurisdiction had recently been expanded to include motor vehicle accidents with less than $50,000 in damages. In the United States, these types of case are the bread-and-butter of personal injury lawyers working on a contingency fee basis.
During the Q&A, it did not take long for the topic to come up. After pointing out that the CRT is a decision-making tribunal rather than a policy-making body, Salter sketched out the broader context. Basically, British Columbia requires every driver to enroll in a mandatory public insurance plan (additional coverage is available via a private market). In recent years, the public insurer has been running a large deficit. Thus, to avoid possible losses that need to be backstopped by the government, the BC legislature enacted comprehensive reforms that includes caps on various types of damages and a shifting of jurisdiction from the superior courts to the CRT. Overall, the reforms are expected to save $1 billion per year, of which $500 million comes from the CRT through a massive reduction in attorneys’ fees.
During the Q&A session, one U.S. lawyer offered a comment rather than a question and asked Salter to respond. Here is a lightly edited transcription of their exchange.
Lawyer: “Generally speaking, we talk about access to justice issues where at least the mindset that I’ve always had is people who were not served at all and now they can get served through these various new devices.
“But in automobile cases, people were being served but, arguably, were paying too much because of lawyers’ fees. And I wonder, are we talking generally about shifting access to justice by cutting out the lawyer? Or are we talking about access to justice for people who if they didn’t have this, wouldn’t … [have] access to the justice system?
“Those seem to me to be, both important, but dramatically different problems that you’re addressing.”
Salter: “Yes, I understand your comment. However, the CRT is not a policy-making body. We’re a decision-making body, and our mandate, as I see it, in part, is to design everything so that you don’t need a lawyer. And then if you want to have a lawyer, for motor vehicle disputes anyway, you can as a right.” [Salter then explains that strata and small claims disputes involve a statutory presumption of self-representation, but no such presumption exists for car wreck cases.]
“I think the bigger question is, ‘Will people continue to choose to hire a lawyer for these cases if they can do it in their pajamas from their smartphone on their couch—what will the value proposition be?'”
Not surprisingly, the personal injury lawyers in British Columbia are unhappy with expansion of the CRT’s jurisdiction. Thus, they recently launched a constitutional challenge that is now in the Canadian national court system. See Rob Shaw, “Trial lawyers prep legal fight against ICBC claims caps,” Vancouver Sun, Feb. 7, 2019.
In the U.S., lawyers have a ethical duty to improve the functioning of the legal system, see MR Preamble & Scope ¶ 6. Likewise, Preamble ¶ 9 acknowledges that “[v]irtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.” In this case, the difficulty is not conceptual. Rather, it’s accepting the loss of income when a well-designed system displaces the need for lawyers. It’s also emotionally difficult because it undermines lawyers’ sense of identity as skilled and learned professionals who advocate in court.
New jobs, different identity
As lawyers are engineered out of low-stake disputes, new roles emerges for ODR case managers, meditators, and adjudicators. Over the next several years, Salter reports that the CRT will be in expansion mode, with a budget set to increase by nearly $60 million.
Once again, Richard Susskind is proving to be remarkably predictor of the future. In Tomorrow’s Lawyers (1st ed. 2012), Susskind writes, “New careers will open up for e-negotiators and e-mediators, those individuals whose intervention and adjudication will actually be required in the ODR process. Here … the competencies that are called for will extend beyond expertise in black-letter law” (p. 116).
Regarding that shift in competencies, during her presentation, Salter remarked the CRT automation efforts have freed up the staff to focus more on user outreach. “Instead of data entry, which is now done all online by users, our staff are on the phone with people who could otherwise fall through the cracks. It’s not unusual for our front line staff to spend half an hour on the phone with somebody, help them fill out forms, answer their questions. And that’s certainly the skill set that we look for–much more customer-service focused. … That’s a big shift in culture as well.”
In Tomorrow’s Lawyers, Susskind provocatively asked the question, “Is court a service or a place?” (p. 99). In the case of the CRT, it is definitely not a place, as virtually the entire staff, including all the case managers and Tribunal Members, work remotely. The only tools necessary for their jobs are a laptop and a smartphone. Salter reported that the CRT’s remote work and flexible hours has enabled the CRT to recruit outstanding talent. In British Columbia, all public workers are surveyed every year for workplace satisfaction. In the most recent survey, the CRT tied for first place across the entire public service.
That said, Salter acknowledged a tension between what the CRT offers and popular preconceptions of what it means to be a lawyer. On the one hand, Salter said that the CRT benefits from “a startup kind of culture and a very horizontal style of management. We get a lot of our ideas from front-line staff. Their ideas are turned into action very rapidly … . It’s also very flexible and multidisciplinary.”
On the other hand, the CRT requires “a different skill set. It means that your ego as a lawyer can’t be attached to having somewhere to hang your degrees or having a wood paneled office with books on the wall. You’re working from your home, and solving problems. For the newer generations of lawyers, that’s not a big deal. But it can be challenging because we have this idea of what success looks like as a lawyer. There’s a lot of artifacts in terms of what you wear, what your office looks like, whether you’re downtown. You have to let go of a lot of those artifacts in order to succeed in this environment.”
“Spreading like wildfire”
Based on the progress made by the CRT, it appears that the problem of access to justice can be substantially solved by designing a more human-centered system. Further, better design can also make the broader legal system more efficient and cost-effective for all citizens. If this is true, it would explain why a state supreme court justice recently told me that ODR is “spreading like wildfire.”
Yet, with the work of building the first generation of ODR will come the hard work building a new and broader conception of what it means to be a lawyer.
(H/T to Lauren Henderson (UBC ’20 Anthropology), who transcribed this session.)