By Doug Van Epps, Director,
Office of Dispute Resolution
Breaking with this column’s typical focus on current alternative
dispute resolution (ADR) initiatives, the next few paragraphs will focus on
recent publications that envision the possible roles of ADR in our trial courts
in the near future.
A discussion about the future best begins with a quick reference to “The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts,” a 2004 article by law professor Marc Galanter, who popularized the notion of the “vanishing trial.” Looking at federal court cases filed from 1962 to 2002, Galanter noted that adjudication rates dropped from 11.5 percent to 1.8 percent, a result similarly reflected in state court statistics.
Possible causes for the decline included “a shift in ideology and
practice among litigants, lawyers, and judges,” increased ADR practice, and
heavier involvement of judges earlier in the litigation. Galanter concluded by stating that “[t]he
consequences of this decline for the functioning of the legal system and for
the larger society remain to be explored.”
Nearly 14 years later, with Michigan civil case adjudication
rates now at one percent, some consequences are becoming clear.[1] First, new lawyers will have few
opportunities to try cases. Second, and
relatedly, the incoming cohort of judges (except those from prosecutors’
offices) generally will have had little or no trial experience. Third, since settlement has become the
primary disposition method, and since most negotiated settlements have
confidentiality clauses, the valuation of claims and defenses will become even
more challenging for lawyers. And finally,
as a result, there will be increased pressure on neutral mediators to value
claims and defenses, taking the historical place of seasoned attorneys
speculating what a jury might award.
Likely there are many more consequences of there being so few
trials, but it is clear that the main focus of litigation will be discovery,
motion practice, and settlement negotiations—not conducting civil trials.
Now back to the future. In
contemplating the displacement of trials by settlement, many authors are
questioning the central role of courts in the future, and are asking, “Are
courts a service or a place?” Increasingly,
they see “court” as being a service, and in an era when much of the public does
a significant amount of its work online, the authors believe that much of what
courts currently do could be provided online.[2]
In one context, online dispute resolution (ODR) is viewed as
handling routine functions electronically. In Michigan, the Matterhorn system, used in
approximately 19 Michigan district courts, enables users to negotiate minor
traffic tickets online. Just as
plea-bargaining takes place in court on the date of a hearing, through
Matterhorn, citizens can access the court online and propose a reduction of
points. If the court (in consultation
with law enforcement) agrees, the citizen pays the fee online and avoids having
to go to court.
In another context, which would be familiar to anyone who has
used the Ebay® or
PayPal® dispute
resolution systems, ODR means providing litigants with the means to either
negotiate online with each other to try to reach a settlement, or to negotiate
with the help of a neutral mediator. Akin
to automating traffic ticket plea-bargaining, this simply moves online what
typically occurs on small claims day in courts where magistrates or mediators
are available to help parties reach a settlement.
Spotting a trend, the National Center for State Courts (NCSC)
Council of State Court Administrators and the National Association for Court
Administration Joint Technology Committee (JTC), in a recent Resource Bulletin, offer a primer on ODR and lays out implementation
models and considerations for courts.
Because there are so few implemented ODR systems in place, the document
more outlines questions to ask than reflects any best practices.
Merely automating current practices online isn’t sufficient to
build the court of the future, argue several authors affiliated with the NCSC.[3] They advocate for revamping traditional court
processes, and focus on implementing a triaging process that matches the issues
litigated with the right process. Not
every case requires the full-blown adversarial process and a trajectory headed
toward an extremely unlikely trial, they assert. Instead, like triaging in the health care
environment, they believe courts could better help parties determine which
judicial resources they need and which dispute resolution process
(adjudicatory, problem-solving, mediation, etc.) would best serve their
interests. With only one percent of
cases reaching adjudication, placing more emphasis on the front end of the
litigation may help parties save time and expense, and simultaneously remove
from the court cases that really could be resolved more quickly.
A triaging approach necessarily suggests that lawyers will need
to change the way they have traditionally thought about litigation. Settling cases up-stream rather than resolution
taking place mere weeks before the trial date should prompt a changing role for
lawyers, says Richard Susskind, a leading futurist focusing on the practice of
law. [4] Susskind argues that traditional legal
practice will be disrupted by a slew of factors, including automated document
assembly, online legal guidance (think Michiganlegalhelp.org), artificial
intelligence problem-solving (think Watson), online dispute resolution, and
more. And he envisions new practice
areas that are closely tied to technology.
He concludes that “legal service (will) move from being a one-to-one,
consultative print-based advisory service to a one-to-many, packaged,
Internet-based information service.”
“Disruption” is a word Susskind and most other authors frequently
use in contemplating the future. And it
is the theme of another Resource Bulletin issued by the JTC, called “Courts
Disrupted,” mentioned above. We’re
all pretty familiar with the concept of disruption: think of how Amazon® and eBay®
“disrupted” conventional shopping, how Uber®
disrupted public transportation, and AirBnb®
has disrupted the hospitality industry. The
JTC bulletin examines trends potentially disruptive to courts, such as: data
aggregation, as in companies’ analyzing judges’ decisions to predict how they
will rule in the future; intelligent automation, as in an apps determining
eligibility for a traffic ticket appeal and automatically filing the appeal;
online dispute resolution, as mentioned above, and perhaps taking place prior
to filing in court; decreases in case
filings; and “decoupling the bar from the court,” which is recognizing that the
bar’s interests and the courts’ interests do not necessarily coincide.
Finally, in “Rebooting Justice:
More Technology, Fewer Lawyers, and the Future of Law,” two law
professors assert that the growing number of self-represented litigants is
largely a result of creating a legal culture that is so complex that only those
with significant financial means can afford to participate in it.[5] Whereas the past decades’ efforts to address
“access to justice” efforts have focused on “lawyering up,” which is having as
a goal every person having access to a lawyer, the authors believe that the real
solutions lie not in trying to attain the unrealistic goal of having everyone
represented by counsel, but rather in creating simple, streamlined, and easy to
understand tracks that litigants in the most typical types of disputes can
manage without lawyers. Consistent with the views of other authors
cited above, these professors also cite the potential of online dispute
resolution for allowing parties to first negotiate among themselves, and if
unsuccessful, to have an online mediator.
Absent parties reaching a resolution on their own through ADR, the
authors recommend a less formal adjudicatory process and a higher level of
engagement by judges in drawing out the facts of the dispute.
So what does all this mean?
Perhaps that there is an emerging consensus that our courts will be
increasingly turning to technology as a means to provide an easily accessible
path to solving the problems litigants are bringing to court. This may include triaging, early online
dispute resolution, specialty tracks for self-represented litigants, access to
limited license practitioners (the equivalent of nurse practitioners in the
health care environment), or any number of proposals the authors of these books
and bulletins have shared with us. In
any case, in an era where trying cases is no longer the norm, we do know that
we need to continually focus on providing means of helping litigants resolve
their conflicts as efficiently, effectively, and economically as possible. These resources may help point the way to our
achieving those goals.
[1] In 2016,
only 10 Michigan circuit courts had 10 or more bench and jury trials. Thirty-seven courts had between 1 and 5
trials; 20 courts had no trials at all.
[2] See
Ethan Katsh and Orna Rabinovich, “Digital Justice,” Oxford University Press,
2017.
[3] Victor
Flango and Thomas Clarke, “Reimagining Courts: A Design for the Twenty-First
Century,” Temple University Press, 2015.
[4]
“Tomorrow’s Lawyers,” by Richard Susskind, Oxford University Press, 2013
[5] Benjamin
Barton and Stephanos Bibas, “Rebooting Justice: More Technology, Fewer Lawyers,
and the Future of Law,” Encounter Books, 2017.