… and where is America, in the litigation revolution? A new post-Gutenberg.com clippings file on democratising law

Service counter in the Marin Superior Court in California postgutenberg@gmail.com

Service counter, Marin Superior Court, California — postgutenberg@gmail.com

 

Where indeed?

Anyone trawling the net for answers is liable to be shocked by evidence that the U.S. is far from keeping up with Britain and Australia, not just in the pace but scope and scale of transformations slated for the near future. Too much of this depressing extract from an interim report in the Briggs review of civil litigation in the U.K. — spotlighted in our last post — is even truer in the U.S. than in Britain. After noting that the ‘civil courts of England and Wales are among the most highly-regarded in the world,’ Lord Justice Briggs summarised some of the reasons why they deserve praise, then added:

It would however be wrong to describe these qualities as evenly spread across the whole of the civil court structure, still less as equally available to all actual or potential court users with civil disputes needing resolution. In general, these strengths and advantages are there to be enjoyed primarily by those sufficiently wealthy to be able to pay for the professional costs of legal representation, coupled with rapidly rising court fees, and with the financial and emotional resources to endure the large risks of liability for opponents’ costs, should they lose, in most areas of civil litigation. [our emphasis]

We are intrigued enough by our discoveries to have started a clippings file on relative progress in reforming litigation in countries — including India — that stand out as possible models or, like the US, confound reasonable expectations.

A DISTINGUISHED SCHOLAR WHO WANTS CORPORATE AMERICA TO HELP IMPROVE LEGAL ACCESS

Renee Newman Knake, a legal expert who has served as a scholar-in-residence at the Center on the Legal Profession at Stanford University, is most famous as a co-director — with Daniel Martin Katz — of the ReInvent Law Laboratory at Michigan State University. She already ranks high among the notables in our collection for courage — having been branded a ‘legal rebel’ by the American Bar Association, not least for appealing to her fellow-countrymen’s capacity for shame:

A nation that holds itself out as a beacon of justice and an exemplar of the rule of law to the rest of the world denies meaningful access to the law on a daily basis to the majority of its population. Lawyers are out of reach for most individuals unless they enjoy extreme affluence or subsist at poverty levels.

We are uneasy — but keen to know more — about her perception of commerce as the solution to America’s litigation gap, probably because no branch of government seems willing or able to take the lead in addressing it:

Corporations like Google and Wal-Mart know a great deal about the delivery of services, goods, and information to the mass public. These corporations and many others have the capacity to make significant financial outlays into innovative mechanisms for providing legal services and await a delayed return on that investment. … [C]onsider that London- based WHSmith stores began hosting legal kiosks in 500 stores in the fall of 2011 through a partnership with QualitySolicitors, a British legal services provider. British shoppers can purchase a newspaper and obtain routine legal assistance such as divorce filings, wills, real estate transactions, and basic contracts in the same location. In the United States, Wal-Mart already offers financial and medical services to its customers. It is not difficult to imagine other alternative law delivery models …

A JOURNALIST SPOTLIGHTING AMERICA’S RATINGS IN THE WORLD JUSTICE PROJECT 

Winning points for persistence, Dan Froomkin of The Huffington Post has written virtually the same story at least twice, in different years, about the U.S.’s poor showing in international rankings of justice systems.

In 2012 he noted:

Access to justice is a core American value. But …[t]he “Rule of Law Index,” released Wednesday by the independent World Justice Project, found that in some categories the U.S. even ranks below some developing nations, such as Botswana and Georgia.

ARE LAWYERS BRIBING THE DEMOCRATS TO HEAD OFF ATTEMPTS TO DEMOCRATISE LAW?

The best hint we have found, so far, about obstacles to acting on the dire need for change is in the Harvard Law School paper to which we linked two posts ago. It blamed moneyed interests and diabolical political manipulations for the notorious outcome of class action suits in which America leads the world: lawyers walking away with stupendous shares of settlement cash, while the plaintiffs on whose behalf they have supposedly been toiling end up with trifling sums. The authors, Mark Ramseyer and Eric Rasmusen, offer this revelation rather startling for some of us about lawyers pouring money into the traditional party of underdogs, to ensure that it does as little as possible to reform litigation for the benefit of ordinary people:

The U.S. has 250 securities class action suits per year that shuffle billions of dollars among overlapping groups of investors but provide no noticeable benefit to the very class of people it recruits as plaintiffs. There are no adversarial lawyers to alert judges to abuse. The country spends up to one billion dollars per year to finance these. An obvious question is why Congress and the courts let this happen.

… The answer lies in the politics of the bar. Attorneys in all sectors give heavily to the Democratic Party. In 2008, attorneys with the large Chicago law firm of Sidley & Austin gave $1.4 million to politicians, 81 percent to Democrats. … [M]ost other large firms gave heavily to Democrats too. Sidley’s prime Chicago rival, Kirkland & Ellis, gave $1.3 million, 76 percent to Democrats. The large New York corporate firm of Skadden Arps gave $1.7 million, 82 percent to Democrats, and even the more traditional Sullivan & Cromwell — the quintessential “Wall Street establishment” firm — gave $1.2 million, 75 percent to Democrats.

The trade association for the plaintiff’s bar gives more, and more overwhelmingly to Democrats. That group — long called the American Trial Lawyers Association, but recently renamed the American Association for Justice — in 2008 gave over $3 million to politicians, 95 percent to Democrats. The group lobbies hard against tort reform of all kinds and particularly hard against reform of the securities class action.

…ATLA fights vehemently against attempts to reform medical malpractice law.

IN INDIA, THE CHIEF JUSTICE IS PUSHING FOR A TRANSPARENT AND ACCESSIBLE LEGAL SYSTEM

It would be indescribably amazing if America were to fall behind … ah — why not? — India in the transition to online or virtual justice, to democratise law. The start of a report in The Hindu last September, about the nationwide eCourts Project:

Inviting the public to keep tabs on the burgeoning case pendency rates of their local courts, the Supreme Court launched the public access portal of the National Judicial Data Grid (NJDG) for district courts in a step towards demystification of judicial process for the ordinary citizen and what ails the justice delivery system across the country.

… The public access portal — designed under the guidance of Chief Justice of India H.L. Dattu … will disseminate for the public national, State, district and court-wise information about institution and disposal of cases on a monthly basis.

… “This initiative is in furtherance of the motto of judiciary to promote transparency and access of information for all the stakeholders of the justice delivery system,” the statement said.

The Indian judiciary comprises nearly 15,000 courts spread in approximately 2,500 court complexes throughout the country, the e-Courts Project website said. It said the efforts for computerising court processes have been on since 1990.

A December report in the same newspaper described courts using texting in a small city, Bidar (in Karnataka, the same state as Bangalore) to serve the public in ways we have certainly never heard of being employed anywhere else:

Shantavva Halembure has a hearing in the court of the Deputy Commissioner and District Magistrate. The septuagenarian … has to make a tiring bus journey for two hours to come to Bidar. However, just when she is getting ready to leave, she gets an SMS saying that the hearing is postponed to next Tuesday. She is relieved and begins to focus on her daily chores. This facility, now being extended to petitioners, is part of a project to digitise the District Magistrate Court.

“This helps us address two issues — it makes monitoring easy and aids petitioners by making the system transparent,” says Deputy Commissioner Anurag Tewari, who trained to be an electronics engineer.

As part of a pilot project being taken up, documents related to all current cases have been digitised …

On the brink of the post-Gutenberg democratisation of law and the courts — fresh proof that justice without lawyers really is on the horizon

Some readers might have thought we were exaggerating last week, in our subhead titled ‘Lawyer-free litigation’. No chance of that in Britain, we are pleased to see. Here is a headline we have just found for a report earlier in the week in the UK’s Law Society Gazette (LSG), the legal journal with the largest circulation in Europe: ‘Briggs review: online court needed to cut out lawyers’. The reviewer-in-chief is a judge of the Court of Appeal of England and Wales.

We will be back to say more on this subject when we have had a chance to read the report and can steal some time from other tasks.

At least two other pieces on the LSG’s home page show that a healthy digital shakeup of law and the courts is long overdue:

Judges’ morale sinks as justice becomes ‘unaffordable’ – LCJ

Judges’ morale, the soaring number of litigants in person and the poor state of courtroom IT are among challenges cited by the Lord Chief Justice in his annual report to parliament published today.

… ‘In addition, there has, overall, been a widespread feeling of not being valued or appreciated for their work.’ [… ] Blaming the rise in number of litigants in person on justice becoming ‘unaffordable to most’, Thomas says that the judiciary is continuing to innovate by improving procedures.

Antitrust watchdog to probe legal services

The Competition and Markets Authority (CMA) is to examine ‘long-standing concerns about the affordability of legal services and standards of service’, it announced today.

A market study restricted to England and Wales will examine:

Whether clients can drive effective competition by making informed purchasing decisions;

Whether clients are adequately protected from potential harm or can obtain satisfactory redress if legal services go wrong; …

 

 

 

Will judge Leveson become one of history’s heroes not for debugging and democratising the British press but his own profession — law and the courts?

This conclusion of a communityaustralia.org.au report http://www.communitylawaustralia.org.au/wp-content/uploads/2012/07/CLA_Report_Final.pdf in 2012 is actually true everywhere in the English-speaking world -- image modified by postgutenberg@gmail.com

The conclusion of a 2012 Community Law Australia report is actually true everywhere in the English-speaking world
— image modified by postgutenberg@gmail.com

[ This is a long post — ‘Many cups of coffee!’ as Manne, a Finnish friend, once warned us in a preface to a letter. ]

We have been surprised to notice that an important but cautiously worded public lecture in London last November by the British judge so far referred to in this spot as Lord Justice Leveson has attracted almost no media attention. Our regular readers will remember that Leveson LJ — now correctly called Sir Brian Leveson, or LevesonP in legal shorthand, after a promotion (see footnote**) — led a government-ordered inquiry into the workings and ethics of the British press nearly five years ago.

Remarks at the start of this exercise by the Lord Chief Justice who appointed Leveson LJ to his inquisitorial post led some of us to hope that, at the inquiry’s end, the judge’s most famous prescription for improving Fourth Estate ethics and objectivity would be to open up journalism to wider public participation. In other words, that he would push for a democratisation of the press as radical as the mass dissemination of knowledge and learning that Johannes Gutenberg’s printing press permitted — not overnight or even in 50 years, but eventually, a point made in our last post.

Exactly why the inquiry failed to yield any such recommendation in spite of the strong nudge from the Lord Chief Justice is unclear. The most interesting possibility is the threat by enraged senior editors and journalists, as well as newspaper proprietors, to turn the tables and demand an equally alarming and humiliating investigation of lawyers and the legal establishment. In the lingering press anger about the judicial probe in 2013, one columnist, (Sir**) Simon Jenkins — a former editor of The Times and The Economistbarked that ‘Lawyers should stick to the law.’ One year earlier, as the Leveson hearings were in full, addictive sway, he noted that ‘Judges consider themselves institutionally beyond correction,’ adding delectably, ‘As for the fee-fiddling, court-delaying, job-sharing, ambulance-chasing antics of the legal profession, you will wait for Doomsday for a judge-led inquiry into that.’

Well, LevesonP might yet rise to the Jenkins challenge. On 12 November, speaking about the early stages of ‘substantial reform’ to ‘secure an efficient and effective justice system … fit for the 21st century,’ Sir Brian said that ‘Information technology is likely to provide the means by which we can do so.’ He spoke of a future with more frequent resolutions of legal disputes ‘other than by trial’; of ‘the development of an online court’; and of an ‘IT dependant system through which the courts can manage disputes so that they can be resolved appropriately.’

Ah. Appropriately. A careful, neutral word chosen by a supremely cautious justice, a signal understatement of the death blows that digitisation and sweeping procedural changes could deal the anciently entrenched customs and culture of lawyers and the legal system. The effects of these transformations, not just in Britain, will fall mainly into two wide, linked categories:

LAWYER-FREE LITIGATION

The richest countries in the English-speaking world have in common the lamentation encapsulated in Australia with the graphic above highlighting the dismaying fact recorded by Community Law Australia that ‘Repeated government and Parliamentary inquiries over the past decade have recognised that the legal system is out of reach for many Australians.’ That is stunning in a country whose people rank as the world’s wealthiest, or nearly so; a country famous for its militantly egalitarian ‘tall poppy syndrome’ culture, and surpassed only by the US in the availability of lawyers (357 vs. 391 per 100,00 people in the late ‘00s, according to a 2010 Harvard Law School study).

As for the US, in a joint contribution to The New York Times in 2010 titled ‘A Nation of Do-It-Yourself Lawyers,’ the chief justices of California — the US state with the world’s largest court system — and New Hampshire invited ‘members of the legal profession to join with us [in] making unbundled legal services and other innovative solutions — like self-help Web sites, online assistance programs and court self-help centers — work for all who need them.’

The legal profession’s incandescent reaction — across the globe — to all such proposals has been put bluntly by an antipodean judge at the highest tier, Deputy Chief Justice Faulks of the Family Court of Australia, who does not consider it a response to be condoned or indulged:

Most judges tend to couple the word self-represented litigant (SRL) with an expletive. It is customary to regard them as difficult, time-consuming, unreasonable, and ignorant of processes of the law. … [C]ourts should regard self-representation by litigants as a challenge rather than as a problem. … Self-representation has reached a level in many courts where it is common for at least one of the parties to be unrepresented for one half of the time. This means that courts are no longer dealing with a minority aberration but are being obliged to contend with change which may require altering the way in which courts operate.

TRANSPARENCY: LETTING THE PUBLIC SEE WHAT REALLY HAPPENS IN LITIGATION

Idealistic and naïve non-lawyers, litigation virgins who have always thought of trials and court procedures as instruments for uncovering the truth in any legal battle, are in for a rude shock when they get enmeshed in an actual case. Honest judges will explain that a trial is not a quest for truth. Why is this a fact of which even highly educated people are mostly ignorant? Most litigation, especially civil litigation — which has no celebrity murderers or Scott Turow thrillers about corrupt judges to supply education-by-entertainment — happens in the dark, out of public view. No stranger to the process has any conception of the brutal details of how legal action commonly amounts to the licensed bullying of those with less money by those with more — or is capable of grasping the near-universal truth of what Chief Justice Faulks has said, with a symbolic illustration from Australian court procedure:

The legal profession is one which guards its turf jealously. To an SRL, being in a court room feels somewhat like being in an old-boys’ club where members of the club are speaking to each other in a strange language known only to them, where the members know each other quite well and are disparaging and discouraging of interlopers. … Most judges prefer to have a triangle of dialogue that involves a judge and two lawyers, preferably counsel, at the Bar table. In my opinion this is a perpetuation of the “old boys club”-like environment associated with litigation. … [I]f courts remind themselves that access to justice requires that it should be to all “without fear or favour, affection or ill-will” then it follows that we should place all of our processes, language, practices and assistance under the microscope of that access to justice

Simon Jenkins’ counterattack on lawyers and judges in the UK arose from fears about the endangerment — implicit in the inquiry’s remit — of the independence of the Fourth Estate; of its special privileges; and of its ability to restrict membership. In his Guardian column two months ago about technology forcing all professions to kneel before the transformation of their work by the internet — mostly, by demystifying their expertise and supplying open access to their tools and knowledge — he quoted Bernard Shaw’s trenchant take on the professions as ‘conspiracies against the laity’.

Doctors and lawyers were the chief focus of his commentary, which strangely made no mention of the need for traditional journalism to adapt to the arrival of ‘citizen journalists’ or ‘citizen bloggers’. Whether the recommendations of the Leveson Inquiry have had or will in the future have any significant role at all in reshaping press practices is impossible to tell from our perch seven thousand miles away. The scant coverage of this subject by the British press is contradictory with, for instance, the Daily Mail implying last month that proceeding with the second stage of what was set as a two-part investigation would be an even bigger waste of resources, whereas the Independent drew attention to the new press watchdog to which the Inquiry gave birth, and said that it ‘has started to show its teeth’.

A LevesonP who sets an example with a more vigorous mucking-out of his own profession — which happens to be the one most successfully insulated from change — will be a judge for the ages. He certainly seems to have grasped the unfairness of a profession least affected, so far, by the digital juggernaut, imposing more revolutionary change on one so battered by internet publishing’s destruction of its economic viability that the most representative image of its state would be a stage strewn with corpses from which just a survivor or two limps away, in the final act of a tragedy.

Richard Susskind, the British judiciary’s principal adviser on digitisation for nearly 18 years, has been pegged by the American Bar Association as ‘far and away the best analyst and predictor of the evolution of the legal marketplace.’ His slender book, Tomorrow’s Lawyers, a model of concision, is gripping essential reading with a well-earned conclusion:

[T]he law is no more there to provide a living for lawyers than ill health exists to offer a livelihood for doctors. … [T]here is an opportunity to be involved in shaping the next generation of legal services. You will find most senior lawyers to be of little guidance in this quest. Your elders will tend to be cautious, protective, and conservative, if not reactionary. They will resist change … In truth, you are on your own. I urge you to forge new paths for the law, our most important social institution.

**In an exception to our usual practice of ignoring titles awarded in Britain’s honours system — in a blog written outside any national boundaries — we refer to him in this post as Sir Brian Leveson, though it was as Lord Justice Leveson that he supervised the hauling over the coals of some newspaper proprietors and editors who were undoubtedly burning him in effigy, out of sight, in revenge. We used that title in our posts about the Leveson Inquiry because it was not a so-called gong or decoration, but part of his job description. Though peers (‘Lord’) rank higher than knights (‘Sir’) in the hierarchy of honours, Sir Brian has not been demoted, since then: he was a Lord Justice simply because that is what judges of the Court of Appeal are called.

Explaining the reasons for that would call for an even lengthier exposition than if we were to try to explain why, since his elevation from that position to his new job as president of the Queen’s Bench Division of the High Court of Justice, or Britain’s third most senior judge, he wears a black gown with a ‘short wig’ to hear criminal cases, but a ‘full wig’ on ceremonial occasions — when justices at the very top of the top, in the UK Supreme Court created just ten years ago, do not usually appear in gowns or wigs, but on ceremonial occasions, wear gowns but no wigs. (Impossible! you say? See the Wikipedia entries for Judiciary of England and Wales and Judiciaries of the United Kingdom.)

We are following law reporting practice when we refer to LevesonP, for shorthand.