Law has a justice problem - Part 1
It's a legaltech one, it's a psychological one, it's a social one...
Hello again, readers, new and old! Sorry for the silence from me despite my promise of regularity. I have been hard at work on several thousand lines of code: a beta of something I have been working on for slightly over a year now. More details to come.
In the meantime, I warn you that this is a longer piece. But the urgency of the issue demands the sort of length and time that goes beyond soundbites.
This is Part 1 in a series of 4:
Part 1: Introduction
Part 2: Of prestige and single-parents (to be published 8 October 2024)
Part 3: Much pride about old things - some not so gold (to be published 15 October 2024)
Part 4: Million-dollar questions (to be published 22 October 2024)
As you go through the essay, think of this: a single parent, fresh out of a divorce, struggling to make ends meet. They are not highly educated, and certainly not well-versed in the ways of the bureaucracy. Their ex-spouse repeatedly does not comply with a maintenance order.
But hold your conclusions as to what they should do - it is obvious according to the status quo, but that is not the point.
This should be commonsensical and uncontroversial
I hope that I have grabbed your attention with that headline, but it is really not news. Anyone who has faced the following knows what I am talking about:
legal services being overly expensive;
litigants-in-person (LIPs) not knowing what to do;
LIPs feeling intimidated by the system;
people not being able to locate where to start solving their legal problem (the answer is not always seeing a lawyer: law ≠ lawyers only, in the same way that food ≠ executive chefs only);
people not knowing what the law says or where to find out what it says;
people not being able to access remedies or enforce remedies granted by a court or similar forum1;
lawyers constantly running on sleep debt;
lawyers and clients going through overly onerous legal and regulatory regimes; and
lawyers suffering record-breaking levels of workplace and cultural issues, poor physical and mental health, alcoholism, and family issues.
Technology, or lack thereof, has a contributory role to play in all of these. It's a strong argument to make, but it holds up in the modern world. The point is to spotlight the typical lawyer’s understanding of the technology in practice, and whether we expect more or less of lawyers when compared to other disciplines. It is also to spotlight how our decisions affect clients, and really, anyone who uses the legal system.
I might be making a reductive argument by holding out technology as a special case, but it is the intersection that I am most familiar with. My hope is encourage people to really look at the law from disciplines other than law.
I also think that the Singapore legal system is one of the best in the world. But as any stereotypical Asian parent would say, there is always room for improvement.
Forms of justice
The above issues are all related to justice. I still owe my working conceptions of justice to a seminar I took with the late and great John Gardner. But the mistakes that I make here are my own. The ones that I remember are:
formal justice;
procedural justice;
distributive justice;
corrective justice; and
commutative justice.
Or rather reductively, just for the scope of this article:
treating like cases alike;
ensuring processes adhere to some pre-defined criteria;
ensuring distributions made by the justice system are done transparently according to pre-defined criteria;
making wrongs right; and
ensuring justice is done within the relationships that the law governs, especially when there is an exchange.
Said criteria usually govern how we define equity, equality, fairness, transparency, and other related concepts.
Because technology is so much a part of everyday legal processes, I think many of these justice issues are also legaltech issues.
Anecdotally, some lawyers delight in their luddism and lack of facility with numbers, whilst at the same time talking down to the people who are familiar with the technologies that enable lawyers. Others give up the ghost once they realise it’s talk about technology. But a rose by any other name would smell just as sweet - or rank. If one took the same difficult concepts and put it under the header of something more familiar and “accepted” as aligning with the profession’s expectations, such as the Rules of Court, or the Criminal Procedure Code, or The Ruthenia International Arbitration Centre Rules 2024, or some Form B in Appendix A of the Gluten Free Food Certification Act, or the act for your practice area, a lawyer would probably put in the time to get very familiar. Why not other things? All this becomes more of a problem with the quick progress of artificial intelligence.
That is only part of the picture. I’ve also encountered many lawyers who are more willing now to put in the time because of artificial intelligence (huge thank you to Dentons Rodyk & Davidson for supporting pro bono, education, and the work that legaltech practitioners do). They know what’s up. I have a lot of respect for them, because learning new things is never easy.
And then there’s also the third category of lawyers who have made their millions, or lack any real incentive to change.
More later.
I am sure that many other issues will be discovered when one puts on a thinking hat other than the traditional lawyer’s. You might think that too quick a conclusion. Let’s say one were to outline a day in the life lived in the legal system, and point out all the issues that contribute to the persistence or causing of the above issues. Many of them would be tech-related. Those of other disciplines will be able to point out the issues that speak to them. I offer only one perspective. But if you look at it from a purely legal lens, that picture is not going to be as richly illustrated.
We did not get the frustrating beauty that is the common law from just lawyers. The legal system has to solve everyday problems, and that is how the law must continue to be rooted in order to grow effectively. History shows that the first '“lawyers” were public servants who needed to find effective and efficient ways to resolve disputes and prevent disputes. Anything would have been a better alternative to trial by combat, or eye-for-an-eye administered by a mob.
The reality is getting lawyers not to think like they have been taught, trained and incentivised to thus far, is a tall order. It is a matter of inertia, and how all the various gears in the system have been crafted to fit together.
The upshot is that I am pessimistic about legaltech’s chances of improving justice outcomes significantly. Given its standing and take-up, as a niche community of practitioners, we have a substantially low chance2 of solving any of these issues effectively in the next 5-10 years unless legaltech progresses beyond being a niche community. Or sadly, something as catalytic as the COVID-19 pandemic happens again. I do not wish that.
While I think all lawyers should be equipped with the cognitive tools we often speak about in the community, it is going to be the newest entrants that have the best hope of adopting these tools3.
Echoing
, we need to have a fundamental rethink about the profession and its education and training - and it is not just about pushing the responsibility to law school administrators and educators. It begins with how lawyers conceive of themselves. We have come to an inflexion point in the profession where it is too late if a lawyer asks these questions only when a lawyer engages with a crisis of meaning and conscience4.To be continued.
Next week: I will write about our professions problems with prestige, and whether prestige as an signalling tool is helping those who need legal help, say, a single parent needing help with repeated non-compliance of maintenance payments.
Which is why I love Singapore’s Small Claims Tribunal.
For the more statistically-inclined, I apologise for the woolly language.
I think I get to say this after trying to push a legaltech agenda for about 7 years now.
Which is another issue that has been recently covered, but that is not news. I think it is a problem that so many young lawyers discern leaving is the right choice after a few years (or shorter) in practice. That sounds like a postponement of deliberation and discernment caused by navigating all sorts of expectation and pressure, rather than liberated cohorts heeding the call of self-actualisation earlier. If you hit me with some “it is all part of the journey” gobbledygook, I would suggest you stop dabbling in imitation philosophy, and start with Gross-Loh & Puett’s The Path or an ATU Index Type 1645 folk tale, exemplified by Paolo Coelho’s The Alchemist in recent times, to figure out what you actually mean. It is a systemic problem when so many make the same “journey”, or when so many go through the whole process of legal training only to find out their treasure was where they started: the absence of a legal job.
Two situations should be distinguished. Someone who does something else immediately after law school, and someone who goes through a legal career and ultimately finds it wanting. Two other situations should be distinguished. The person who finds a legal career wanting because they like apples, but a legal career is all oranges, and the person who just finds it a completely disagreeable thing. I would hazard a guess that significant numbers who say they fall in the first category, actually fall into the second category. But do not burn bridges, y’know.