In Jeff Bezos’s nasty fight with a tabloid, a hint of how transparency in e-commerce is guiding the design of online courts in the litigation revolution

 

' decorative grille, Frank Lloyd Wright, Marin superior court postgutenberg@gmail.com

Sumptuous court buildings can seem like tributes to the inequality that litigation exacerbates. Photograph: at the entrance to the Marin superior court in California, a decorative grille designed by Frank Lloyd Wright

Dear Jeff Bezos,

For a few days earlier this month, you were an internet hero for scuppering the National Enquirer’s attempt to bully and humiliate you with legalistic tactics.  You challenged its overseers to go ahead and carry out their threat to publish embarrassing private photographs of you if you did not sign a statement attesting to a thought that never crossed your mind — that this tabloid was not playing politics when it ran its exposé in January about your extra-marital affair. You published lawyers’ email messages setting out this demand in your blog post on Medium in which you called it extortion. 

Rather than sign any such document, you said, ‘I prefer to stand up, roll this log over, and see what crawls out.’

Bravo! Sadly, dismal partisan politics and questions about possible links between this fight and the White House and Saudi Arabia dominated public discussion of your ordeal. No one in the commentariat seemed to notice that you’d struck a mighty blow for justice and the common man and woman. You have more than enough money to have not merely caved in to the tabloid’s demands and paid it off in deepest secrecy, but to have quietly bought it and its staff and shut it down, as an alternative. Instead, you trained a blazing spotlight on the thuggish tactics used routinely by lawyers working for rich clients in disputes typically marked by a striking imbalance of power.

What the eminent legal scholar Hazel Genn has observed about the pattern in Britain is equally true of the U.S.. Lawyers and litigation exacerbate inequality. She has said:

Parties are not both volunteers in litigation. One side may be forced into the process against its will. … [I]n the vast majority of […] cases the initiator is a business or institution rather than an individual. With the exception of personal injury proceedings, individuals’ experience of court proceedings is as a defendant rather than a claimant.

For anyone who discovers this truth from experience, the imposing architecture of court buildings — whether classical or modern, hideous or beautiful — makes them look less like temples to justice than casinos blatantly rigged in favour of money and power.

Outside the legal system, only those unfortunates dragged into it understand that the extortionate thrust of the emails you received is as much part of the ordinary lawyer’s toolkit as scalpels are in a surgeon’s. A former federal prosecutor told Wired that the Enquirer ‘could argue that it was merely trying in good faith to resolve a dispute with Bezos — not attempting to blackmail or extort him.’ Why? Because, as that prosecutor continued, ‘”the law regarding the distinction between extortion and settling a legal case is very unsettled — it’s not well defined.”’

Never were truer words spoken — strangely enough, about a battle that has not yet become a legal case. Answering a question on Quora.com about why people are afraid of the legal profession, a 21-year veteran of it started with a jokey pseudo-confession about dabbling in voodoo and the occult. But by his fourth paragraph, he was merely laying out (or boasting about) some of the ugliest facts about actual or potential harm of which he and too many of his colleagues are capable:

Lawyers have to fight for their clients. Most people see the calm exterior and the coldly calculating demeanor and and don’t understand [… that …] what they really see is a trained assassin, someone hired to throw you out of your house, someone who knows how to freeze your bank accounts, garnish your wages,  [and that when a lawyer] puts his or her claws in and starts to rend and tear your psyche from stem to stern, that’s when the full power of a lawyer is on display.

All that has been true for centuries, in jurisdictions all over the world — but the reason why even well-read members of the public know so little about any of it is that most of it happens far out of public view. 

That you have blown a great big hole through this secretive white collar thuggery is not all that surprising. It is strange but undeniable that although you and your fellow tech titans have fairly been accused of deviousness in surreptitiously siphoning private and personal data about us when we use your web sites and products —  as in, most recently, eavesdropping by your Alexa and Google’s Nest that might or might not have been inadvertent — transparency is one of the shining virtues of e-commerce. It is as important as convenience in explaining how online shops have been so successful at leading consumers away from bricks-and-mortar retailing.

The influence of e-commerce is leaping a long way past its boundaries. The online auctioneer eBay, of all things, has been a guiding light for the design of Britain’s online court. For years, thanks to what Ms Genn (or formally, Dame Hazel Genn) has called a ‘reform-minded senior judiciary, supported by a major government investment in technology,’ Richard Susskind — the IT adviser to the Lord Chief Justice for the last 20 years — has held up as a model for redesigning courts for the internet age, ‘the 60 million disagreements between traders solved by eBay’s online argument settling system.’ 

Michael Briggs (formally, Lord Briggs) — a judge who has been crucial to the shaping of Britain’s online court — has said that it will not be as ‘robotic’ as eBay’s processes. But eBay-like transparency will be of its essence — the idea that justice must not only be delivered but seen to be done. As Ms Genn has explained, that means in part, ‘transparency in procedures, conspicuous impartiality and consistency, explanation of rules and decisions, and the promotion of procedures that give parties a voice in the proceedings.’ All those are well-known features of eBay’s modus operandi.

Closer to home for you, radical transparency is of course a hallmark of Amazon’s transformation of — for instance — book-buying. Anyone can browse on your site and instead of looking at just a print volume sitting on a shelf with a price sticker, can, in less than a minute, complete comparison-shopping for the e-book version with hardback and paperback alternatives and, with a few more minutes to spare, scan dozens of offers of second-hand books with descriptions of their physical condition from sellers who can be merely a short drive or a continent away.

For shopping unrelated to books, on the pages on your site for innumerable other products, your virtual store persistently reminds shoppers  of ‘more buying choices’ — lower prices from other sellers — and clearly demarcates listings that are advertisements or ‘sponsored’ displays.

We take all this for granted, now.

In his 2013 book, Tomorrow’s Lawyers, Richard Susskind describes ‘early incarnations’ of ‘an electronic legal marketplace’ that ‘include online reputation systems, which allow clients to share their views, online, on the performance and levels of service of their lawyers […], price comparison systems, which put the respective prices and rates of legal advisers and law firms on simple websites; and online legal auctions, not unlike eBay in concept, but best suited to legal work packages that are routine and repetitive.’ 

These windows into the mechanisms and methods of legal systems of the future are only part of the openness that will make it increasingly difficult for change-resistant lawyers to practise their dark arts.

Some American law reformers dismayed about their country’s slowness to join this revolution believe that technology companies could get involved to speed up the long-overdue benign disruption that their system is widely acknowledged to need.

Could there be a role for Amazon and you, here — performed, perhaps, through a special, new, not-for-profit legal services division?

Just a thought for you — about a chance, at the level of U.S. law and the courts, to roll over that log you mentioned, and make sure it is never repositioned to cover up foul, flagrantly unfair behaviour indulged in as a matter of course. 

Looking forward with keenest interest to seeing where your brush with darkness leads you next,

pG

Rich America is still the bizarre laggard in the — anti-inequality — litigation revolution. Should this be on 2020 presidential campaign posters? 

 

+entrance marin superior court vertical 300 postgutenberg@gmail.com

At the entrance to the Marin superior court and county offices in California: shelving designed by the complex’s architect, Frank Lloyd Wright

Surely it’s time for an American presidential candidate from either party to run on bringing U.S. law and the courts into the 21st century? Start a campaign for yoking digital technology to putting justice within the reach of the poor and comparatively powerless? 

That there has been no such initiative, no parallel in law for the fight about reforming the medical system, is especially remarkable in a country in which two lawyer-presidents of the last twenty years — Bill Clinton and Barack Obama — have had high-powered lawyer wives. In other words, for sixteen years, four legal specialists in a position to notice and do something chose to ignore a notoriously flawed legal system. At least two prominent candidates for the 2020 election have the right credentials. Both Elizabeth Warren and Kamala Harris are lawyers, one of them a law professor and the other a former attorney general of California — but will they care about doing the right thing?

According to a 2010 summary by two executives of the World Justice Project   — founded in 2006 ‘as a presidential initiative of the American Bar Association’:

[ In civil justice ] … a significant gap exists between rich and poor individuals in terms of both actual use of and satisfaction with the civil courts system. For example, only 40 percent of low-income respondents who used the court system in the past three years reported that the process was fair, compared to 71 percent of wealthy respondents. This 31 percent gap between poor and rich litigants in the United States is the widest among all developed countries sampled. In France this gap is only 5 percent; in South Korea, 4 percent; and in Spain, it is nonexistent.

In the WJP’s 2017-2018 Rule of Law Index — measuring ‘the extent to which countries adhere to the rule of law in practice’ — America ranked 19th, just below France and above South Korea, and several ranks beneath Estonia, Hong Kong and Singapore.

Speaking in London last month at the first international forum on online courts — the most hopeful technological innovation for anyone who cares about inequality in legal systems worldwide — Lord Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales, could only point to a single U.S. state, Utah, for an example of an online dispute resolution programme in America. The lack of support at the summit of the U.S. judiciary for the digitalisation of justice must have something to do with this. 

In Britain, where an online court for all branches of law is set to go live next year, the country’s most powerful judges are directing the transformation. When the legal scholar Hazel Genn delivered the prestigious Birkenhead lecture in 2017, she began by underlining their commitment to change. She noted that the year before, ’the Lord Chancellor, Lord Chief Justice, and Senior President of Tribunals published a joint statement signalling a “once in a lifetime” £1 billion transformation of the justice system.’

Who could advise a U.S. presidential candidate on an equivalent transformation across the Atlantic? Three years ago, almost to the day, post-Gutenberg drew attention to the ideas of Renee Newman Knake, a legal expert and professor who was at the time the co-director, with Daniel Martin Katz, of the ReInvent Law Laboratory at Michigan State University. Possibly her most radical suggestion was that corporate America could initiate the technological disruption and revolutionisation of the legal system. She mentioned Google and Walmart as companies that ‘have the capacity to make significant financial outlays into innovative legal mechanisms for providing legal services …’.

For a while, the ReInvent Law Laboratory seemed set to do exactly what its name promised. It got attention and won awards. An article in the journal of the American Bar Association trained a spotlight on its founders.  Sadly, Google’s search results for this would-be revolutionary cell run out in listings with 2014 dates. Professors Katz and Knake have moved to positions at other universities and seem to have gone silent on the topic of transforming U.S. law. The page about the Laboratory’s mission — which is dated 2013 and written mostly in the past tense — suggests that its focus has narrowed to protecting lawyers’ incomes: ‘Overall legal spend is increasing, but traditional lawyers are getting a smaller piece of the pie. We want to help prepare our students to invent and work in growing areas of the legal market.’

This is a considerable change in tone and substance from Professor Knake’s rallying cry in 2016, which is worth re-quoting:

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. 

Although her more than justified outrage would make a fine speech for a presidential candidate next year, there is no sign of any candidate taking up her cause. The first pages of Google’s search results for the terms ‘law reform as a presidential campaign issue’ yield only links about election or campaign finance or drug law reform — so far. 

… 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; …