When the 21st century started on January 1, 2001, traditional legal practice included: carbon copy summonses, case stickers, law libraries, Loislaw, a manual bates-stamp device, paper heavy depositions and trial, and trials before a live jury. Since that time, technology has allowed for e-summonses, video courtrooms, electronic bates stamping, video depositions, e-filing and service, and more. These new processes and technologies have allowed a more efficient workflow for all involved in litigation and have allowed the practice of law to be more convenient, accessible, and at the same time, less costly and time-consuming. Still, use of technology was only an option, not as familiar as it could or should be, and these new practices did not equally apply to all jurisdictions.
The SBM 21st Century Practice Task Force – Envisioning A New Future Today
To focus on how to engineer a more comprehensive vision of what the legal profession would look like, and create a path to apply new technologies, the State Bar of Michigan (“SBM”)formed a task force to look at practice in the 21st century – including a look at the perceived problems and what comes next. The Task Force completed its work at the March 1, 2016 meeting of the SBM. The Report can be found here: SBM 21st Century Practice Task Force Report.
Key problems identified by the Task Force included the following:
- A dysfunctional legal marketplace – need for an online legal platform for more broad access
- Issues for new lawyers with massive school debt and lack of practical experience, and challenges for experienced lawyers who lack familiarity with technology – focus on case management tools for delivering legal services more effectively and affordably
- Inefficient and overly complex legal processes – implementing significant changes that utilize existing business process tools and technologies to create a more effectual system through modification of litigation processes, court rules, and business practices
- Regulatory hurdles – coordinating strategies in regulatory structure (rules of professional conduct, limited scope representation, alternative fee agreements, traditional legal practice) together with new technologies, and how to ethically practice
- Cultural resistance to innovation – jurisdictions that adapt technological and cutting-edge initiatives will enhance access to justice for their citizens and provide advantages to the business community with economic competitiveness
Each of these obstacles focus, in some way, on application of technological innovations to the legal profession and the marketplace to better serve the community. The Report discusses the need for online dispute resolution pilot programs, tech-assisted remote legal services delivery, and for firms to budget for technology (to expect that 5-10 years would allow for disruptive technology to reach peak performance in affirming an effective process).
The Task Force took the relationship of effective legal practice and technology so seriously that one of the recommendations was to develop and amend the commentary to Michigan Rule of Professional Conduct (MRPC) 1.1 to promote tech competence in legal practice for consideration by the Representative Assembly. Even more so, the Report recommends creation of an SBM tech advisor or SBM department to assist lawyers in complying with MRPC 1.1, and to even identify essential technological competencies by practice type, develop and update curricula, including cybersecurity, cloud computing, e-discovery, internet-based investigations, and to encourage ongoing training on the use of existing and emerging technologies and court systems.
The Task Force also suggested in its Report that the SBM create a non-profit Justice Innovations Center, housed and staffed with advisory group drawn from the legal community as a whole, including a legal futurist and an economist. The Center would advance the Task Force recommendations beyond the first steps, evaluate practices of other jurisdictions and design pilots, identify redundancies and obsolescence in the court system and practice of law, and seek grant funding.
The Report and work of the Task Force, though insightful and crucial to defining and tackling the 21st century challenges in the practice of law, allowed us to realize that envisioning a new future does not apply itself without disruption to force change.
COVID-19 Pandemic – Cultural Resistance to Innovation/Technology Goes Out the Window
When the SBM 21st Century Practice Task Force completed its Report in March of 2016, it could hardly be imagined what would happen in March 2020, and how COVID-19 has changed the way we practice law. Now, much of the envisioned future of technology and practice has come to the forefront as a necessary means of continuing to provide legal services while forced to work remotely as required by Governor Whitmer’s Stay at Home Orders. Forced change, almost overnight, has required practitioners and much of the bench to become familiar and implement new best practices for use of technology – primarily Zoom – into every-day practice.
The Michigan Supreme Court and Justice Bridget McCormack Lead the Nation
Since the onset of the pandemic, the Michigan Supreme Court has taken a strong lead in working to protect infrastructure of our justice system, promote public health, and, at the same time, make justice even more accessible, transparent, and efficient. By opening virtual courtroom doors, the Michigan Supreme Court has coordinated and applied innovative technology and procedures to keep our justice system running and accessible to practitioners and the public during the pandemic. In her testimony before the U.S. House Judiciary Subcommittee on Federal Courts, Intellectual Property and the Internet, on Thursday, June 25, 2020, Chief Justice Bridget McCormack stated that the COVID-19 pandemic has allowed for more change in three months than in the past three decades.
Thankfully, Michigan courts had a head start with video conference technology and Zoom accounts for judges prior to the pandemic, and as of the time of her testimony before Congress, Chief Justice McCormack indicated that there have been over 350,000 hours of online proceedings. Michigan has even created a virtual courtroom directory to watch live court proceedings via YouTube from many jurisdictions across the state. An additional option is in the works where the public will receive text messages to notify of public hearings or other court events. The Chief Justice said, “if dentists and cable guys can do it, why not courts?”. The goal is the enhanced delivery of justice.
We Must Encourage Public Trust in Courts Because it is the Only Currency
Importantly, the Chief Justice said that thoughtful changes in remote and technology-based court proceedings need to encourage public trust in courts because it is the only currency the courts have. Generally, court proceedings are a stressful/traumatic time for people involved, and how courts treat people matters. Chief Justice McCormack observed that somehow – perhaps the equal size of the Zoom boxes – there is a sense that the playing field is more level for those involved in hearings and the functioning of courts less intimidating.
Less Dysfunction in the Legal Marketplace – Online Access to Dispute Resolution and Legal Help Resources for the Public
An additional innovation in Michigan is an online dispute resolution platform MI-Resolve, which has made Michigan the first state to provide every resident a way to potentially resolve disputes without a lawyer. Using MI-Resolve, a mediator can assist with resolution of a dispute without going to court – before the case is filed or before the case proceeds to trial. People no longer have to miss work, obtain childcare, miss a vacation, or travel for hearings, and the legal system is less overwhelming or more accessible to the public.
Prior to the pandemic, Michigan was already increasing online access to the public with its Michigan Legal Help site, an online resource with resources and self-help tools for the public to resolve their own legal problems, including information about legal issues regarding family, housing, money and debt, employment, estate planning, immigration, crime, and even a tutorial on going to court and use of the MiFile system.
We Are Not Going Back to Where We Were Before
Notably, the Chief Justice indicated in her testimony before Congress that we will not be going back to where we were before. She now views courts as entrepreneurs, seeking out the best practices and technologies. She indicated that she would like to see justice provided to people where they work and live – a user-centric design – and believes the recent disruption is exactly what we needed. While she acknowledges and understands that remote practice is not appropriate for some matters, including where there are Sixth Amendment concerns, remote hearings have increased participation and many high-volume dockets have been able to be maintained in order with the use of technology. Chief Justice McCormack also said that courts still need to be more transparent and more accessible; she said, “we can do better”.
Present-Day and Potential Post-Pandemic Considerations to Revisit from the
21st Century Practice Task Force Report
While the State Court Administrative Office has a Lessons Learned Task Force that is evaluating the issues of how prepared the Courts were for the pandemic, best practices during the pandemic, and what changes should be made in the post-pandemic world, challenges in practice with best use of technology remain. Below are some considerations moving forward and some of the areas on which the Taskforce is working:
- Consider the need for more client forward-based software for access toattorney file/courts.
- Determine which hearings are necessary or should be live-streamed to promote transparency in courts – avoiding privacy concerns regarding divorce and juvenile matters, and potential violation of rules regarding sequestering of witnesses.
- Improved coordination amongst the bench and practitioners on best-practices.
- Best practices for incorporation of technology and innovations based on practice area – perhaps an area the SBM can focus on via membership in practice area-based committees.
- Court rules, including those that were just over-hauled, will likely need to be further amended.
- Statutes may require amendments
- Long-term, more technology forward changes to notary and witness requirements in law applicable to estate planning practice are necessary. See my article touching on this issue: Executive Order 2020-41 Permits Limited and Temporary Relief from Certain Witnessing and Notary Requirements.
- Staggering start times for motions.
- Improved technology with dispute resolution.
- Reducing the number of jurors called for jury selection.
- Amend Rules of Professional Conduct to include a provision for technology competency – potentially require certification of competency and systems usage by bar members each year.
- Consider how to safely empanel juries – Possibly one of the first in-person jury trials was set to start in the last couple weeks in Grand Traverse County for an auto negligence case. Jury selection was planned to be held in a high school auditorium, and then trial will shift to the courtroom. Similarly, a jury trial in Ingham County started this week by way of a hybrid model: jury selection held virtually and the remainder of the trial conducted in-person (with social distancing and plexiglass barriers installed to attempt to avoid any issues with Covid-19 spread). As many practitioners and court staff have found, adjustments will need to be made on the fly in to keep participants safe, without taking away from the parties’ right to present their case at trial. For now, judges otherwise seem to be taking volunteers to have cases tried remotely by Zoom. Thinking out of the box to allow jury trials to proceed will be commonplace and different in each community based on resources. Perhaps community centers and schools be used during vacation time or after hours in the future to house jury selection? Will reinvented purposes be assigned to convention centers and other large public places? See my colleague, Steve McKenney’s article on trial courts during these times: Zoom Trials? Private Juries? Arbitration With Strings Attached? Thinking Creatively in the Face of Continued COVID-19 Restrictions. The State Court Administrative Office also has a Task Force focusing on jury trials in the pandemic as well as constitutional issues and should provide further guidance as we work through the new normal with trial practice.
- The need to regulate non-lawyers offering on-line legal services as well as to demonstrate to the public the importance of our expertise.
- A further discussion of these issues was done by the ABA in its recent article: Will the COVID-19 pandemic fundamentally remake the legal industry?
Authored by: Jennifer A. Cupples