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Jun 1, 2020

Virtual law in a post-COVID-19 era: will justice thrive in a Zoom future?

By: Philip Holdsworth

zoom software

Published on medium.com , May 09, 2020

If #lawtwitter is a barometer for the future of legal practice, the profession has de facto adopted Zoom as a digital stop-gap for in-person meetings. Could Zoom be to the 2020s, what the Fax Machine was to the profession in the 1990s? (Seriously?!)

When COVID-19 tripped the circuit breakers on physical interactions in mid-March, millions of knowledge economy workers collectively collapsed into video-conferencing to replace face-to-face communication. The legal profession and the administration of justice have been no exception.

On May 4th, Justice Myers made the Ontario Superior Court’s position on virtual appearances abundantly clear in just two words: “It’s 2020”.

COVID-19’s shock to the judicial system has forced an accelerated reckoning with our understanding of the administration of justice in the context of digital platform systems-design. Video hearings will only form part of this new era of virtual law, and Zoom is just the first example of how our future built-environment will exist in the digital world.

The convergence of technology and process has always created opportunities to reframe our approach to legal systems design, and expand access to justice in the process; opportunities the legal profession has struggled to capitalize on. Courts are only just beginning to grapple with questions about the rights and interests engaged by video-conference hearings.

As Justice Myers wrote, “Technology is a tool, not an answer.” Our legal system needs a framework to evaluate it. User Centered Legal Design (UCLD) offers a succinct framework through which to approach the complex matrix of questions about procedural and substantive rights and interests that will inevitably emerge as we begin the transition into the fourth industrial revolution. If done right, the legal legacy of COVID-19 could see the most significant expansion in access to justice in decades.

Why Zoom?

The zoom to Zoom, as the solution for court appearances, wouldn’t have been obvious even six months ago, despite existing video platforms that might have filled the gap created by the exponential growth in demand. For years the Ontario Ministry of Justice has tried to incentivize parties to use CourtCall to little success.

Zoom’s popularity stems from the company’s mission to make enterprise “video communications frictionless”. Its platform design facilitates functional video conferencing in just a few clicks, without downloading a program, or creating an account. It is perfect for communications that demand face-to-face interaction among people of varying technological competence.

Before COVID-19, Zoom produced features in response to the needs, preferences, and behaviours of the businesses using the platform. Waiting rooms, break-out rooms, screen sharing, and document sharing, only begin to scratch the surface of the dynamic feature set available to hosts on Zoom.

The Rules of Civil Procedure, as a system of integrated process rules, is similarly designed to achieve substantive outcomes, just written in a different semantic language. But it has taken a pandemic to properly emphasize how the absence of competitive markets for the provision of legal services has allowed the industry to lag behind other sectors in capitalizing on platform technology. One can only hope B.C.’s Civil Resolution Tribunal is the tip of the spear, in a digital revolution in legal systems innovation.


The Medium and the Message

Into the COVID-19 breach steps Zoom, its functionality mapping with apparent seamlessness onto core aspects of the practice of law. But technology’s transformative capacity to solve procedural questions through automated solutions is both a strength and a liability.

It’s imperative that we don’t simply graft a digital layer onto the existing procedural systems currently designed to moderate and arbitrate competing legal rights and interests in society. We can build new rules with new digital tools.

If COVID-19 has forced a shift to the practice of virtual law, then the legal profession needs a framework for evaluating the tradeoffs between the digital feature complexities of the platforms that will support this transition.

Using technology to simplify procedural dynamics in a system, still introduces an additional layer of complexity in the hierarchy of users’ competing interests, and the pursuit of both procedural and substantive justice. With video-conferencing, the line between the medium and the message is blurred. The ability to encode and automate the enforcement of procedural rules with fidelity does not solve questions of procedural or substantive fairness.

When features scale, they can generate compounding negative externalities at a systemic level. It is too easy already to over-fit rules from single cases when we apply them to systems as whole, without the compounding efficiency of digital technology.

If COVID-19 has forced a shift to the practice of virtual law, then the legal profession needs a framework for evaluating the tradeoffs between the digital feature complexities of the platforms that will support this transition. At stake are both the procedural and substantive rights and interests of the public.


User-Centered Legal Design

User-centered design asks whether the product/service provides useful, usable, and engaging solutions, taking a holistic view from the perspective of the end objectives of the user. UCLD applies this lens to users of the legal system. This holistic approach necessarily encompasses an appreciation for individual objectives within the context of the systemic objectives of the legal system as a whole.

Features of a digital built environment can help navigate the relationship between the individual user’s objectives, and those of the system, while scaling drives down marginal costs. Parties can tailor a virtual venue’s procedural and communication features to their needs, within broader systemic principles of cooperation.

UCLD provides a useful framework for assessing how the features of digital platforms can moderate participant’s experience by recognizing that:

  • users’ objectives in the legal system are more dynamic than those of the system itself;
  • feature complexity of the digital built-environment can empower scaled diversity of choice to meet these expanded needs and objectives;
  • digital ‘features’ will always impose trade-offs between individual and systemic interests when scaled; and,
  • systemic principles emerge from patterns in the preferences and objectives of users.

Technology may enable us to automate a forest of procedural complexity through virtual hearings, but it won’t solve the deeper question of whether a user’s substantive experience aligns with their objectives for engaging with the system in the first place.

For that, the legal profession will need to understand the experience of using new virtual platform venues from the client perspective. Yes, this will require lawyers and courts to develop a deep familiarity with the feature sets of the digital platforms we adopt, and the agency enhancing/diminishing returns they generate.

Only by understanding how technology shapes our digital built environment, can we guide clients through decisions negotiating the feature landscape to meet their needs.

No one wants to find out, for example, that Zoom can send a transcript of private messages between participants to the host, after the fact. Zoom’s ‘frictionless’ experience also imposes trade-offs with users’ cyber-security and privacy. Its data processing systems were sufficiently insecure that governments and major corporations banned its use.

There are smart resourcescritiques and analyses to develop the digital literacy to use, and the vocabulary to explain, the trade-offs in rules based systems mediated on digital platforms. We can learn from each other. Videoconferencing literacy has cratered the cost of information sharing, which may just be the superpower we need, together with public participation, to build this new vehicle of virtual law, while in motion.

There is no better time than now, when we are naive to the possibilities the transition to virtual law could facilitate, to find innovative, empathic solutions in law. If we survived the transition to the fax machine, we can survive the transition to Zoom.

 



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