The Power of Perspectives

The Canadian Bar Association

Rebecca Bromwich

The Art of War, access to justice and tech innovation

September 8 2016 8 September 2016

All over the legal services sector, you could hear the buzz: this summer, legal tech was trending. This August, CBA hosted an innovative event, “The Pitch”, showcasing the work of entrepreneurs in the legal technology sector. Mitch Kowalski, one of the tech experts involved in the production, later called this event the “debutante” moment for legal tech.    As a longtime CBA member, I’m excited that the CBA has decided to highlight tech innovation in this way.

Yes, the technologies and inventions presented do offer exciting new opportunities for access to justice as well as more efficient legal practices on the supply side of the legal services equation.  

However, I’m wary of the buzz. It is important to be cautious about the extent to which we become blindly fervent about the shiny novelty of tech as a solution to legal sector challenges and access to justice problems. Sometimes the best new ideas are very old ideas.

So let’s borrow from Chinese military strategist Sun Tzu, and his advice to know your enemy and know yourself.

On the subject of knowing oneself, let’s bear in mind what kind of industry the legal services sector is.  Law is used to manage human relationships. It deals with corporate transactions, and business entities too, but even within corporate contexts, law is invoked to address conflicts between people. Our view should not just regard what our practices need, but also what our clients want. 

This concern and Kowalski’s reference to debutantes got me thinking about Bob Dylan’s song - "Stuck inside of Mobile with the Memphis Blues Again".  I have a nagging concern that maybe, as Dylan said, “your debutante knows what you need but [not] what you want.” An incorrigible and disruptive innovator, Dylan, was (and still is) an iconoclast: he didn’t go in for debutante balls or what was, to use 21st century parlance, “trending.”

Don’t get me wrong. I like tech gadgets and I get excited about innovation. I’m just wary about the current excitement about legal tech.  If it serves our public and professional purposes to get loud, raucous and step outside of the box solving problems, let’s do that.  But let’s not fetishize technology for its own sake, or, furthermore, champion change for its own sake either. We should avoid claims about legal tech that treat it as a total solution to access to justice issues. The conflicts that bring people to the legal system involve human relationships.

I’ve been closely involved with tech for a decade now, on the ground floor with Clearwater Clinical, as its first general counsel before heading back to the academic world, which is why I am offering a suggestion from my kitchen table to yours.   The best innovations I’ve seen, the most disruptive revolutions, don’t add technology for its own sake.  They don’t start with a cool technology: they start with a problem.

For example, a great deal of research suggests that restorative justice and conflict resolution will help address access to justice concerns.  The Standing Senate Committee on Legal and Constitutional Affairs recently weighed in on delays in the criminal justice system.  One of the four recommendations put forward in that Senate Committee’s 2016 Interim Report is to explore uses of alternative and restorative processes in the justice system.

Yes, making better use technology in courts and law firms is part of a solution deal with access to justice issues. However, computerized court proceedings, legal tech applications and startups invariably address access to justice on the supply-side.  We must also take steps to improve access to justice by focusing on the demand side. ADR, for one, has shown promise in this area by reducing public demand for and reliance on, the formal justice system. Educating and building capacity in communities to manage, reduce, and resolve conflicts before they become legal issues as we do at Carleton University’s Graduate Diploma in Conflict Resolution
also needs to be part of the solution.

So, when we gaze raptly on new technologies, let’s not lose sight of Sun Tsu’s teachings. The title of the Art of War, is somewhat ironic, because the text is chiefly about the benefits of reducing, managing, avoiding and resolving conflict.  As he put it, "the supreme art of war is to subdue the enemy without fighting."

Rebecca Bromwich is the author of  Looking for Ashley: Re-Reading What the Smith Case Reveals about the Governance of Girls, Mothers and Families in Canada. The author's views are her own.

Jason Moyse 9/8/2016 7:48:34 PM

As one of the leaders in the market pushing the agenda forward --- you will get no argument from me about being wary of the buzz -- if the buzz infers that there is hope for A2J because of legal tech.

I am a (fervent) legal tech evangelist in large part because of the peculiar inefficiencies in the legal sector.

I make no connection with that to A2J. Never have. Never will.

I have no idea how A2J will improve -- and am glad that smarter and more passionate people than me think deeply about it. Sounds like you are one of those of people and have some good ideas.

The Pitch was showtime to be sure. But the prize is real in terms of an honest look for large dollars from an investor. Most investors are looking for commercially viable entities. Can that also serve A2J? Perhaps. Is it the first consideration of an investor? Doubt it.

Leave message

 Security code