Report from the ODR 2019 Conference

This month, the 21^st annual Online Dispute Resolution conference took place in Williamsburg, Virginia, right across the street from the event’s host, the National Center for State Courts (NCSC).

With nearly 300 attendees from all over the world, this year’s event was the largest ever, with presentations covering all aspects of ODR from ethics to AI to eCommerce and even refugees. The largest focus, however, was on the growth of ODR in the courts – the sole topic of the event’s first day.

The Access to Justice Gap

A true highlight was the keynote by Justice Deno Himonas of the Utah Supreme Court. Utah is a pioneer in integrating technology into the courts. Justice Himonas led the design and launch of Utah’s end-to-end court ODR platform, which launched in 2018. The keynote went farther than Utah’s efforts to date, as Justice Himonas sketched a vision for the future that was both visionary and inspiring.

He didn’t mince words in describing how the courts are falling far short in terms of the service they provide to low income litigants. “Poor people have access to the American courts in the same sense that the Christians had access to the lions when they were dragged into a Roman arena," Himonas quoted, from retired California Court of Appeals Justice Earl Johnson, Jr.

While the U.S. justice system is healthy in many ways, it is “failing and failing miserably” when examined through the lenses of access and affordability. Most court rules assume that parties coming before a judge are represented, but that hasn’t been true for more than a decade. Self-Represented Litigants (SRLs) face a labyrinth of arcane rules and jargon that creates huge barriers to access. More than 30 million Americans try to navigate the civil justice system without the help of a lawyer. Engaging the legal system without that assistance forces them to confront “a cascade of legal problems.” Word is getting out about this lapse in service; polls now show that 59% of voters agree that courts are not doing enough to empower regular people without help. As Justice Himonas explained, we must “act with intention and decisiveness to address the Access to Justice (A2J) gap or this issue will get worse.”

ODR is Here to Stay

Technology provides huge opportunities for addressing these challenges. Himonas observed that technology has permeated every facet of our lives, and that organizations that have harnessed technology have thrived. “Those that haven’t? May they rest in peace.” Courts need to harvest technology in order to stay relevant. They’re facing stiff competition from other redress paths, and they need to step up their game to keep pace. ODR is a powerful way to do that, because it consolidates many court functions into a single, intuitive user experience.

The Justice was particularly forceful in his advocacy for ODR. As he put it: “ODR is here to stay. The majority of states and a number of countries have launched ODR programs or platforms. Get over it. And if you are not one of them, get on with it.”

A New Legal Ecosystem

The keynote went beyond technology. Himonas laid out a vision for a new “legal ecosystem” where we “reimagine the way the rules are written.” Oregon, California, Arizona, and Utah are all taking on this challenge. Utah is tackling the issue along two tracks:

• Track A: Examining elimination of the rules that deal with fee referral, fee sharing, and outside ownership of law firms. These are the main rules that block competition in legal services and keep innovators out of legal service delivery channels.
   
• Track B: Creating a “regulatory sandbox” in the legal arena where innovators can try out novel ideas to expand access to justice. This approach has been tried in other fields, but Utah may be the first jurisdiction to utilize it for A2J innovations. If the data generated by the initiatives show that they are safe, and that they benefit the end-users, Utah is ready to green light broader expansion.

“The days of only lawyers providing legal services needs to come to an end,” noted Himonas. States need to open the door to more legal service providers, especially non-lawyers. Utah has taken the initiative to enable paralegals to provide legal advice in family, debt, and property cases. Arizona is exploring a “legal bachelor’s degree,” where undergraduate training is all that’s required to provide legal services in some case types.

We need the same kind of innovation in the legal sector that the medical profession has with options such as Nurse Practitioners that have proven successful. We should provide certified training to community first responders like health care workers, librarians, religious leaders, and social workers to enable them to provide low level legal advice. They won’t be handling death penalty cases, but they will be able to help with family issues, landlord-tenant matters, or civil cases. We should pass “Good Samaritan” laws that make clear that if you're not delivering services a for profit, you're immune from being sued. As Himonas noted, “As a District Court judge, I handled everything from death penalty to spitting – so I know you don't need a lawyer for spitting.”

ODR and the Future

In 1989, Justice Himonas placed a Macintosh computer on his law firm desk. He was told to remove it, as it “wasn’t becoming of the firm.” Two years later, every lawyer in the firm had a computer on his or her desk. This is how it goes with technology in the courts. Technology will be omnipresent in the justice sector just as it is elsewhere. And with it, comes great opportunity.

Colin Rule was recently awarded the Frank Sanders Award by the American Bar Association. This is the sixth post in a series on ODR by Rule, vice president, Online Dispute Resolution and co-founder of Modria. Check this space on the second Wednesday of each month for more.

Read his earlier articles here:

Court Leaders Gather in Kazakhstan
Frank Sander and the Multidoor Courthouse
How ODR Can Benefit Three Criminal Case Types
The Intriguing Evolution of ODR
ODR Around the World