Courtesy of Elayne E. Greenberg and Noam Ebner
It is one of the oldest lawyer jokes in the book, and its punchline is about to change.
Remember the New Yorker cartoon, in which a lawyer and their client sit at a table, and the lawyer assesses the client’s legal problem? “You have a pretty good case,” the lawyer informs him, “How much justice can you afford?”
The client’s response is unvoiced in the cartoon, but moving beyond the punchline, one can imagine the client’s heart sinking, realizing they may not be able to afford all the justice they need, or any justice at all. This reflects the day-to-day reality of most people in the US and around the world: the justice they can afford is not the justice they need.
That, too, is about to change as Online Dispute Resolution (ODR) offers an affordable justice option for litigants who have been denied access to justice because they could not afford the cost of lawyers.
ODR, Meet the Courts
Courts, first globally and now domestically, are turning to ODR to help address their access to justice crisis. In some venues, an entire court’s operations – from intake to settlement processes to final adjudication – are already conducted online without any in-person interaction. Three examples of such programs include the UK’s Online Courts, British Columbia’s Civil Resolution Tribunal (CRT), and China’s Internet Courts. Other venues have begun this shift more moderately, such as by offering or requiring parties to participate in an online negotiation or mediation process even as they advance in the traditional litigation pathway towards an in-person hearing.
ODR’s Appeal to Two Justice Stakeholders: Courts and Disputants
ODR’s entry into the courts holds clear appeal for two justice stakeholders: The courts, and potential disputants. Courts, as equal justice opportunity providers, are responsible for providing justice for all litigants, regardless of the dollar value of their legal claim or whether they can afford a lawyer. Understandably, they have turned to ODR to help ameliorate their access to justice problem. Disputants, naturally, are likely to appreciate any innovation allowing them to access the justice system with their disputes, especially those that reduce the prohibitive costs of pursuing their claims and the time drain of going to court. For many litigants in the traditional legal system, the ability to access justice to resolve their claims is dependent on one key factor: Can they afford a lawyer? Those who can neither afford attorneys or want attorneys view ODR as an appealing, affordable, and efficient justice option.
The Silent Stakeholder: Lawyers
Lawyers are, of course, the third stakeholder in the justice system. By and large, lawyers and legal organizations have not played a significant role in the design or implementation of ODR. In large part, lawyers themselves may have been disinterested in ODR, because ODR has initially been designed to resolve the low-value cases that have historically been shunned by lawyers themselves as uneconomical. As we’ve explained in Where Have All the Lawyers Gone?, an article forthcoming in the International Journal on Online Dispute Resolution, both the courts and the legal profession bear some responsibility for the legal profession’s absence from the ODR drawing board. Ironically, it may be that lawyers’ silence towards ODR has resulted in the formation of ODR’s conceptual appeal to the other stakeholders.
Click for Justice
To paint a general picture of proceedings in the new ODR-infused courthouse, a person with a legal claim clicks on a link on the court’s website to initiate a proceeding against another. The system guides them through a simple and easy process of claim filing, sanslegalese. It then guides the respondent through a similar process. Next, parties are then offered a menu of resolution processes. Based on the case, and on the court, these might include negotiation, mediation, case evaluation, and – if none of these help parties to settle – adjudication. Most or all of these processes will be conducted online, with no need to convene in a court or a meeting room. As an added bonus, all or many elements of these processes can occur asynchronously. This provides disputants a great deal of flexibility in terms of timing, including the option to participate in their justice procedures after traditional business hours, without missing work or needing to arrange for childcare in order to attend a hearing.
Court-ODR and the Lawyerless Legal Process Revolution
Reading this description of parties’ process experience in court-ODR, you may have noticed one recurring element that might prove to be the most revolutionary feature of ODR: Parties navigate these systems by themselves. Many – nearly all – of the ODR systems currently being deployed are lawyerless by design. Providing disputants with straightforward, easily navigated interfaces and simplified process steps, ODR reduces their dependency on lawyers. In doing so, ODR essentially reverses centuries of devolution that have produced a legal system that mustbe lawyer-mediated, and in which an unrepresented individual is playing on an uphill field. From the perspective of consumers of legal services, this is revolutionary. Now, the consumer can consider their justice needs on their own and bypass the use of lawyers if they so desire.
The ODR Revolution and the Legal Services Market
This revolution will have far reaching effects on certain areas of the legal services market. To begin with, it will diminish or eliminate the need to retain a lawyer to engage in low to medium value civil claims. As we’ve written in an article forthcoming in the Washington Journal of Law and Policy, titled Strengthening ODR Justice:
“ODR systems have been initially introduced as vehicles providing justice for litigants with legal cases that are financially unattractive to lawyers…ODR, with its lawyerless design, will continue to be introduced into courts – and with its spread, the number, types, and value of cases that courts manage through ODR systems will increase dramatically. As ODR demonstrates that it can provide justice for low-value cases, we expect value-caps to gradually rise. After all, if an ODR program saves the court system money and satisfies parties, there is no inherent or compelling reason not to explore expanding use of the same platform to higher-value cases. This will occur incrementally and repeatedly, until ODR caps rise into the economic zone that includes those cases that have traditionally been profitable for attorneys.”
Such horizontal expansions of ODR into new case areas have already occurred. British Columbia’s CRT has recently been granted jurisdiction over motor vehicle accident claims in addition to its previous small-claims and strata disputes jurisdiction. The UK’s Online Courts have expanded their activity to include divorce cases; Franklin County, Ohio originally implemented ODR for municipal tax disputes and soon expanded it to cover all small claims cases.
Vertical expansion, in the sense of raising value caps, has also occurred. Dealing with small claims cases, the CRT’s effective value cap had been C$5,000. Expanding to motor vehicle accident claims includes raising the maximum value of the claims it deals with to C$50,000. China’s Internet Courts set extremely high caps, or no caps at all, right off the bat; in this venue, multimillion dollar claims are handled entirely online.
As ODR continues to spread horizontally and vertically, lawyers handling low to medium -value litigation are going to begin feeling the crunch. How far will ODR spread, and how high will value caps rise? We won’t venture to guess, and while we’re not prophesizing short-term change in the way high-value and commercial litigation is conducted, we wouldn’t recommend anyone take perpetuation of the current economics of their practice for granted.
Great Change, Great Opportunity
We anticipate that ODR’s disruption of the public’s behavior as consumers of legal services will adversely affect some – perhaps many – lawyers. However, we also see great opportunity for lawyers who recognize the changing legal landscape and adapt themselves and their business models accordingly. Qualitatively, ODR offers clients a different justice experience. We note the following as examples of how ODR redraws the map of clients’ justice considerations. Unlike traditional justice options, ODR is efficient and cost-effective. Since ODR does not involve any in-person engagement, there is less likelihood that clients will have an in-person confrontation with the person they are having the dispute. Moreover, the allocation of attorney/client responsibility may be more client-driven. Depending on the ODR program, ODR may yield a finite range of remedies, perhaps more restrictive remedies than lawyer-guided negotiations. Lawyers need to appreciate how these differences may look from a potential client’s perspective and integrate these differences in the way they offer their legal services. We cluster the opportunities ODR presents lawyers under three categories:
1) Matching Clients’ Justice Needs to Proceeding Type
Now that ODR has diversified the menu of justice options, lawyers need to rethink their client interviewing and counseling protocols to help the client decide whether ODR is a possible option to resolve their dispute. Lawyers can help parties decide whether or not unrepresented online claim filing serves their justice interests, based on the considerations listed above and others. They can counsel them on using ODR to resolve all or a segment of their legal claim. By adjusting their interviewing and counseling skills, they can achieve a better understanding of what justice means for that particular client. Is efficiency an over-riding value, or does the client require an in-person procedure to achieve their personalized justice preference.
It is important to note, however, that parties will not always have a choice between filing offline or filing in the traditional manner. Increasingly, filing and conducting claims online will be the only gateway into the courts, rather than a side door into an optional system. In Utah, filing online is the only way to file a small claims case. In the UK, court authorities have sold off many traditional courthouses, bringing home the point that online procedures are far from an optional pathway that parties or their lawyers can brush aside.
Still, even in non-optional online jurisdictions lawyers can support clients in evaluation and strategizing roles. They can help parties assess whether their case falls under the jurisdiction of an ODR-infused court or a traditional court. If the former holds jurisdiction, and the client’s justice-needs assessment shows that they would be better served in a traditional court, the lawyer can consider whether any venue-shifting rules pertain.
2) The Unbundled Lawyer
Lawyers can rethink their business plans and include, in addition to their full-service legal representation in traditional proceedings, a variety of unbundled legal services for clients who find themselves involved in ODR procedures. Whether an ODR-infused court prohibits legal representation, as the CRT largely does, or just renders such representation superfluous, clients will still be interested in specific, behind the scenes, legal assistance giving them a better shot at succeeding. Such services might include any or all of the following: explaining the legal background; framing their case; assessing damages and claim value; preparing or reviewing documents to be submitted to the court; reviewing clients’ evidence; conducting a review of counterparty evidence; providing clients with guidance on navigating the online interface, helping them to make good choices while selecting from a menu of optional resolution processes (different types of online negotiation, mediation, or facilitation); coaching them ahead of these resolution processes; coaching them for an unrepresented videoconference appearance before a judge, and more.
3) The Online Lawyer
The lines between full-service representation with the lawyer up-front, and party-driven processes, promise to shift over the next few years. These shifts will be uneven across jurisdictions and in flux over time, as jurisdictions will experiment with different processes and procedural models. Courts’ attitude towards representation, as well as clients’ preferences and financial abilities, are also likely to shift. It is likely that lawyers will be able to participate in some online procedures, and should their pricing allow it, some parties would be willing to engage them for this purpose. Moreover, as value caps for ODR rise, some clients will prefer representation even though the ODR platform and process was designed to accommodate laypeople. At some not-too-distant point, we have no doubt that we will see U.S courthouses or even entire court systems conduct all proceedings online. Lawyers would do well not only to adjust their business practices to accommodate this, but their skill sets as well. Lawyers who learn to negotiate online, to participate well in online mediation, and to advocate for their client in online judicial hearings will be successful and in demand. As we’ve noted in our paper What Dinosaurs can Teach Lawyers, this all has ramifications for legal education.: What should law students be studying now, in order to be successful in an ODR-infused legal environment? However, even before that slow ship begins to turn, attorneys can embrace these changes in the landscape and use them to their economic and professional advantage.
Of course, each of the opportunity-categories listed above necessitates that lawyers develop a more responsive billing method, built around providing specific tasks for predetermined value, to replace the outdated method of hourly billing over the course of protracted legal representation. For lawyers, it’s all about staying relevant and economically viable in what we believe will become an increasingly ODR-infused justice world.
In this new world, the cartoon changes. We imagine the lawyer saying to the client “You have a pretty good case, and you can afford all sorts of justice. Here’s a menu, let’s figure out what type of justice you prefer.”
This new line might not make you laugh – but it will make your clients smile.
