Will Justice trade in her scales for a mouse?

Transforming the Law
July 6, 2001

Jack Straw, in his previous guise as home secretary, complained that soon there would be more lawyers in this country than policemen. He probably meant that there were too many lawyers, rather than too few policemen.

Richard Susskind has good news for the home secretary: soon there will not be many lawyers, just computers. This will enable the number of policemen to be reduced still further, so the statistical coincidence between the number of coppers and the number of conveyancers may continue to divert the feeble-minded.

Susskind believes that print-based law, using traditional textbooks, has had its day. And his own slightly flawed print-based law book tends to support this because it is repetitive and perhaps a little muddled in its purpose. Irritation at the lack of coherence in this volume and the fact that most of the essays have been previously published (between 1986 and 2000) should not disguise the importance of the subject, nor of Susskind's work.

The subject is of commercial importance to lawyers, but it has a broader significance for those whose lives are affected by the law. Information technology can make lawyers' lives easier, improve their profitability and perhaps make lots of them redundant: it can also improve the quality of service given by the nationally owned part of the system, including the courts and the judges.

Susskind is well placed to know what is going on. He advises those who matter in the law profession on what they should do with IT. He wrote The Future of the Law in 1996 and revised it two years later. This present collection brings us up to date. There are autobiographical passages about his work with City firms and with government working parties, and an essay called "A response to critics". Part two is actually called "The future of law", and it contains the meat of the book: the re-use of the title suggests, rightly, that not everything here is new.

Susskind has identified a number of different areas of interest that flow from the opportunities presented to all parts of the legal system by IT. Part one presents his ideas as advice to City firms of solicitors on how they should use IT to give themselves competitive advantage for the same highly profitable commercial work.

This all makes perfect sense and is explained very lucidly, but it carries less impact because it is not as generalised as it could be. I personally do not care whether one large City firm of solicitors does better than the others by astute use of IT. I feel the same way about banks, supermarket chains and public relations consultancies. They all make a valuable contribution to our economy, but they can all look after themselves. We need such bodies to thrive and, if they need advice from Susskind to do so, they know where to find it.

What is interesting is the potential of IT to change the system of justice: the provision of advice, representation and dispute resolution. To succeed, lawyers have to be able to use IT, the clients need to be able to access the new technologies and the courts and judges need to be proficient users of IT. So first, there is the technical and imaginative task of identifying what IT can do for these services and deploying it effectively; second, there is the complex analysis of the effect that such measures will have on the system of justice and thus on the law itself. There are economic and social reasons for using IT to provide services more directly to the consumer. Therefore, the courts and the law will be required to behave in a way that is suitable for this method of delivery.

This may have effects on substantive rights and the way they are enforced. By obtaining a more accessible system, we may achieve legal rights and remedies that are different from those we want. In particular, a greater number of disputes may be decided on procedural grounds rather than on the merits - he who best plays the game, wins the case. Procedural justice is a lawyer's playground, and perhaps a system designed to reduce the usefulness of lawyers will have the opposite effect.

Susskind believes that the role of traditional lawyers is coming to an end, except for "high end" work. Legal advice will be available on the internet to everyone. As they are more likely to access it far earlier, this will prevent disputes from arising. Our council estates will become utopias, where the rights of all are respected by all because they are better understood. The resulting system may be imperfect, but it will be better than it is now. Thus online, dotcom justice, whatever its drawbacks, will be an improvement, as it is so much more affordable.

Susskind says: "It will be a world in which non-lawyers will have immeasurably greater access to legal guidance and, in turn, to justice." This is an important non sequitur . Litigation (justice) is too expensive for ordinary mortals, but "legal guidance" can be quite cheap, even now. Legal guidance does not necessarily lead to justice "in turn". Making advice cheaper is not an answer to the problem, which is that litigation (a different thing) is too expensive.

Time spent hobnobbing with City solicitors, judges, and civil servants can distort a perception of the way people really use lawyers and of the real cost of doing so. No individual in her right mind would instruct a City solicitor to do anything for her, but she might go to a local solicitor for guidance. If more specialised expertise is required, she may be referred to a barrister. Susskind calls this "unbundling" and describes referral of the strategic work on a dispute or deal to a "legal strategy specialist" as its "most radical form". I call it "briefing counsel".

Susskind's future requires new professionals to ensure that clients get the right online advice, or see the right lawyers. The technology and knowledge specialists will be as important as the lawyers. We will move from solicitors and barristers to "legal infomediaries" and "legal information engineers". There will be expert systems that will do some legal work better than it can be done by humans. The courts will have IT facilities and will then fulfil the hopes of those who designed the recent reforms of the civil justice system. All this will happen at a great but unknown cost. Then the system will offer the same level of service to individuals as do modern banks.

Andrew Edis QC is a practising barrister.

Transforming the Law: Essays on Technology, Justice and the Legal Marketplace

Author - Richard Susskind
ISBN - 0 19 829922 2
Publisher - Oxford University Press
Price - £19.95
Pages - 301

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