Future Legal Mind 2017: Essay Submission

Future Legal Mind is a national award for UK resident students, set up by National Accident Helpline to recognise young legal talent.

The award, run in association with legal industry publication Lawyer 2B, is now an annual scheme following its successful launch in 2014, aims to identify the next generation of high fliers in the legal world, offering law students the opportunity to win £5,000 towards their studies and a coveted work experience placement.

This year, the question to think about was:

“If eBay can resolve 60 million disputes each year why does the UK civil justice system need lawyers?”

Here was my submission to this year’s competition:

Summary
This paper explores the roles of lawyers’ to the Civil Justice System (CJS) despite advances in technology in the form of Online Dispute Resolution (ODR). Contextual information is provided on ODR and the recent proposal for low-value claims. Subsequently, the author distinguishes between the eBay model and the CJS. The importance of lawyers from a progression of law, adaptability to various disputes and macro-economic perspectives are addressed. It finds that the ‘access to justice’ argument is flawed as it is heavily driven by cost-saving aims rather than quality justice. Thus, quantity and speed do not eradicate the necessity of lawyers.

Essay
The use of innovative technology to advance the aims of the legal system is a lurking prospect following several calls for reform.[1] This has fueled the Civil Justice Council’s proposal of an Online Dispute Resolution (ODR) to tackle the shortcomings of the current justice system.[2] The proposed system aims to deal with the torpor associated with the civil courts following eBay as one of the iconic and successful examples. Consequently, it will prevent the expensive access to justice for ‘minor’ claims of up to £25000. With the growing support for ODR comes concerns on the necessity of lawyers to the Civil Justice System (CJS).

ODR is an adaptation of traditional dispute resolution methods by means of automated technology systems.[3] It processes and manages information relevant to the dispute at hand.[4] The proposed online court mirroring the eBay system would have a three-tier structure which provides online evaluation, negotiation or meditation facilities and online judges. Factors such as cost effectiveness and increased access to justice are included in the thirteen ‘criteria’ set out in the report.

Firstly, a distinction must be drawn between eBay and the CJS as they address different sectors and the latter requires the interpretation of legal principles. ODR has especially been used for disputes involving low-value cross-border internet transactions.[5] This success might be attributed to the party’s mind-set to settle the dispute to favour their ratings rather than a provision of quality resolution by eBay.[6] However, the civil law transcends minute disagreements between traders’. Sir Jack Jacob recognised this as the ‘wide and far-reaching’ ambit of the CJS.[7] It serves as a machinery for remedying infringements of civil rights, private or otherwise, according to the political will of the state.[8] Such comparison presents an over-simplification of the justice system and the axiomatic importance of lawyers.

My contention is that lawyers are necessary to the CJS because of their ability to produce high-quality services despite variations in costs, complexity and subject matter of disputes. Much of this essentiality is based on their admirable expertise albeit psychological notions associated with the profession.[9] The use of ODR as an all-encompassing mechanism is likely to create a deficient system which prevents justice from being served as ‘‘people with complex claims find themselves funnelled down routes that are designed for a quick result at the expense of proper consideration of relevant facts in their case.’’[10] The system’s remit does not capture many other areas of the CJS which require expert knowledge.[11] This understanding together with the law’s binary nature leaves an online platform incapable of entirely replacing the multi-functions of a lawyer.

The eBay model despite its heuristic approach, cannot replace the psychological association of lawyers as beacons of justice. Lawyers are trusted to have the competence having developed a psychological rapport which is driven by the client’s goals. This notion is referred to as the ‘trust model’.[12] Following this, a lawyer’s realistic assessment of a claim’s merits and prospects of success is likely to be held high in esteem compared to the recommendation of unfamiliar online facilitators. Therefore, lawyers are needed because the online platform does not present a mirror image of the physical world.

Although Professor Susskind believes that legal advisers will be less prominent in the society following their replacement by ‘disruptive legal technologies’ and the commodification of the legal market.[13] Arguably, the low support for commodification of the legal sector through the Legal Services Act is evidence that the legal sector is immune to common market dictators and surpasses the sale of services.[14] The task of many lawyers exceeds the provision of information on the rights. In effect, there will be clients who are not willing to trade-off a lawyer’s service for a speedy and incapable process.

At the heart of ODR is the ‘access to justice’ disguised justification. On the one hand, it is argued that the model creates an easier path to accessing the orthodox principles of natural justice.[15] However, this argument is flawed as the system is heavily driven by cost-cutting measures for the state.[16] There is a constant pursuit of quantitative resolution instead of ensuring that the quality of justice is observed. Lawyers on the other hand are bound by code of conduct to provide a proper standard of service to clients.[17] This makes it essential that the quality of the CJS is not assessed in terms of speed and cheapness or by the number of cases are persuaded to seek results outside the courts.[18]

Consequently, the eBay model undermines the negative impact that the deprivation of representation will have on different classes. These groups include those who are disabled, not acquainted with technological systems or face intimidation from the justice system. Also, it dismisses factors such as the mental inability of some ordinary members of the society to comprehend conflicting judgements or complex precedents. According to Luban, this legal representation is key to establishing equality before the law as it legitimises the political framework.[19] This deprivation of representation could amount to a breach of Article 6 of the European Convention on Human Rights.[20]

Take a hypothetical scenario where the CJS is crafted to operate online without lawyers. The results are two-fold. The first being the creation of an extreme example of Lande’s ‘how much justice can you afford?’[21] As lawyers will not be extinct, the legal market is forced to target business giants and the bourgeoisie as favourable clients. Secondly, a downward spiral in loss of public confidence in the justice system. Hence, lawyers are needed to cater to low-value cases especially to preserve the confidence of socially disadvantaged groups.

Furthermore, the art of advocacy although archaic is essential to the advancement in law. Through a barrister’s advanced legal reasoning comes his ability to persuade the judge(s) to promulgate social change. Genn exemplifies the stifling effect on the law if cases such as Donoghue v Stevenson were channelled to reach a settlement through mediation.[22] The eBay model is incapable of this quality as it denies the opportunity to put forth revolutionary and incisive arguments which challenge the status quo. Hence, Professor Susskind’s recognition of the difficulty in substituting the dispensation of legal advice and oral advocacy with ODR. This online medium will not only present disastrous outcomes but also cripple and dilute the traditions of the constantly evolving justice system.

Apart from the preservation of the social stability and the provision of a legal framework in which the economy operates, the CJS plays an income generating role to the economy. To exemplify, the legal services industry contributed over twenty five million to the economy in 2015.[23] Three hundred and fourteen thousand people were employed within the legal sector which generated a trade surplus of approximately three billion.[24] A reduction in the jobs available within the legal sector will lead to unemployment or underemployment. This will have a spin-off effect on the employment rate and the economy. Using this macroeconomic outlook, lawyers play a key role in enabling the CJS to benefit the economy of the United Kingdom.

Lastly, ODR is likely to become an increasingly effective mechanism for resolving disputes as technology advances. However, the eBay model presents no current or substantial threat to the vast functions of lawyers especially within the CJS. This is due to the absence of elements such as quality advice, flexibility towards disputes, a progression of the law and a psychological rapport with the client. Also, the essentiality of lawyers in the CJS has a spin-off macroeconomic effect on the overall rate of employment in the economy. Much will have to be done to create a sense of trust and mitigate the disadvantages posed by the system. As it remains, speed, quantity and low costs are not substantial replacements. Hence, the CJS needs lawyers even though an eBay model could bring about the resolution of millions of disputes.

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Disclaimer
The content of this article is for general information purposes only. I expressly disclaim any liability for damages of any kind arising out of use, reference to or reliance on any information contained within this publication. I am not responsible for the sites, pictures or diagrams presented in this publication and do not assume any responsibility for the accuracy or functioning of these.

(Copyright) Ebunlomo Azeez 2017

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For more information about the competition, the shortlisted students, the winning essay, and how to enter next year, you can follow this link.